MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                          Sep 15 2016, 8:16 am
this Memorandum Decision shall not be                                CLERK
regarded as precedent or cited before any                        Indiana Supreme Court
                                                                    Court of Appeals
court except for the purpose of establishing                          and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shaun L. Steele,                                         September 15, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         20A03-1604-CR-889
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen Bowers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D02-1007-FC-60



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 1 of 9
                                             Case Summary
[1]   Shaun Steele appeals the enhancement of his sentence pursuant to his status as

      an habitual offender. We affirm.


                                                     Issue
[2]   Steele raises one issue, which we restate as whether the trial court properly

      enhanced his sentence based on his status as an habitual offender after his

      conviction was enhanced from a Class D felony to a Class C felony pursuant to

      a progressive sentencing statute.


                                                     Facts
[3]   The facts as stated in the appeal of Steele’s petition for post-conviction relief

      follow:


              [O]n July 6, 2010, Steele drove a truck that he knew was stolen.
              An officer attempted to stop the vehicle, and Steele leaped from
              the vehicle and ran around a building. He then jumped back into
              the truck and drove away. As a result of these events, Steele was
              charged with resisting law enforcement as a class D felony,
              operating a vehicle while intoxicated (OWI), a class A
              misdemeanor, and receiving stolen property as a class C felony,
              which was enhanced under Ind. Code Ann. § 35-43-4-2.5 (West,
              Westlaw current with all 2012 legislation) from a class D felony
              by virtue of a previous conviction of auto theft. He was also
              alleged to be a habitual offender.


              Steele eventually entered a plea of guilty to all of the charges and
              admitting to being a habitual offender. Sentencing was left to the
              trial court’s discretion. As part of his guilty plea to the charge of
              receiving stolen property as a class C felony, Steele admitted he

      Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 2 of 9
              had an unrelated prior conviction of auto theft on May 20, 2009,
              under cause number 20D05-0804-FD-119 (FD-119). He also
              admitted he was previously convicted of the felonies of robbery
              (in 1998) under cause number 20D01-9807-CF-152 (CF-152) and
              escape (in 2002) under cause number 37C01-0205-FA-241 (FD-
              241).


              The court sentenced Steele to eight years for the receiving stolen
              property conviction and enhanced that sentence by an additional
              eight years by virtue of his status as a habitual offender. Those
              sentences were to be served consecutively with the concurrent
              sentences of two years for resisting law enforcement and one year
              for operating a vehicle while intoxicated. On April 6, 2011,
              Steele filed a PCR petition alleging, among other things, that trial
              counsel was ineffective for not challenging an improper double
              enhancement. The trial court granted his petition on October 13,
              2011 on the aforementioned double-jeopardy grounds.


      State v. Steele, No. 20A03-1111-PC-502, slip op. at 2-4 (Ind. Ct. App. Oct. 18,

      2012) (footnotes omitted).


[4]   The State appealed the post-conviction court’s grant of Steele’s petition for post-

      conviction relief. The State contended the post-conviction court erred by

      “concluding that Steele received ineffective assistance of counsel in that counsel

      failed to challenge the habitual-offender enhancement of Steele’s conviction for

      receiving stolen property, which itself was already enhanced from a class D to a

      class C felony under a progressive penalty statute, thus constituting an

      impermissible double enhancement.” Id. at 5. We agreed with the State and

      reversed the post-conviction court’s decision as follows:




      Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 3 of 9
        The essence of Steele’s claim in this respect was that counsel
        should have objected to the sentence on grounds that it violated
        the rule against double enhancements. The specific claim was
        that a trial court may not add a general habitual offender
        enhancement to a sentence that already has been enhanced under
        a progressive enhancement statute such as the one under which
        Steele was convicted, i.e., I.C. § 35-43-4-2.5. Although this is not
        a scenario in which counsel is required, or even expected, to
        lodge an objection, see Reed v. State, 856 N.E.2d 1189, 1194 (Ind.
        2006) (“[c]ounsel need not object to preserve a sentencing error
        for review”), we will proceed on the assumption that the deficient
        performance consisted of not pointing out to the court when the
        sentence was pronounced that it violated the prohibition against
        double enhancements, or something to that effect. In such case,
        Steele was required to show that counsel’s claim of error would
        have been correct. See West v. State, 938 N.E.2d 305, 310 (Ind.
        Ct. App. 2010), trans. denied (“[w]hen an ineffective assistance of
        counsel claim is based on the failure to make an objection, the
        petitioner must show that a proper objection would have been
        sustained by the trial court”). Steele cannot meet this
        requirement.


        Steele was sentenced on October 14, 2010. This was
        approximately two weeks after this court handed down Davis v.
        State, 935 N.E.2d 1215 (Ind. Ct. App. 2010), trans. denied. In
        Davis, the defendant was convicted of auto theft, which was
        enhanced from a class D to a class C felony because of a previous
        auto-theft conviction. He was also determined to be a habitual
        offender, by virtue of which the trial court enhanced his auto
        theft conviction. It was uncontroverted that the prior auto-theft
        felony that served to enhance his auto-theft conviction was not
        used as a predicate offense for the habitual offender
        determination. The defendant complained upon appeal that this
        constituted an impermissible double enhancement. The situation
        in Davis was virtually the same as that in the present case and
        thus the holding in that case is equally applicable here:

Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 4 of 9
                Davis contends that the trial court erred in using the
                2001 auto theft conviction (FC-165) to enhance both
                the conviction for auto theft and his habitual offender
                sentence. A court may not use the same prior
                conviction to enhance a felony under both the
                progressive penalty and general habitual offender
                statutes. Beldon v. State, 926 N.E.2d 480, 482-84 (Ind.
                2010). Here, however, the trial court enhanced the
                auto theft conviction from a D to C felony by using
                the prior auto theft conviction (FC-165), while it used
                the stipulated offenses of a resisting law enforcement
                conviction (FC-165) and a 2001 auto theft conviction
                (DF-142) to enhance under the general habitual
                offender statute. The trial court did not violate the
                prohibition of Beldon as it did not use the same
                conviction to enhance under both the progressive
                enhancement and habitual offender statutes.


        Davis v. State, 935 N.E.2d at 1218.


        This was the law at the time Steele’s sentence was imposed and
        Steele’s sentence was perfectly consistent with it. Obviously,
        Steele’s counsel did not render deficient performance in failing to
        register an objection to a sentence that was lawful at the time.
        See Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008) (“[f]or
        purposes of ineffective assistance of counsel claims, the law
        requires consideration of legal precedent available to counsel at
        the time of his representation of the accused, and counsel will not
        be deemed ineffective for not anticipating or initiating changes in
        the law”), trans. denied, cert. denied, 555 U.S. 1003. Therefore, the
        State’s challenge to this ruling has merit. Steele did not receive
        ineffective assistance of counsel with respect to the issue of
        double enhancement and the trial court committed clear error in
        granting Steele’s petition on this issue.



Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 5 of 9
      Id. at 7-9.


[5]   On remand, the trial court resentenced Steele to eight years on the Class C

      felony enhanced by eight years for the habitual offender status with four years

      suspended to probation. That sentence was to be served consecutively with the

      concurrent sentences of two years for resisting law enforcement and one year

      for operating a vehicle while intoxicated, for an aggregate sentence of eighteen

      years with four years suspended. In 2016, the trial court granted Steele

      permission to file a belated appeal.


                                                  Analysis
[6]   On appeal, Steele argues that the trial court erred by applying the habitual

      offender enhancement because the underlying Class C felony “had already been

      enhanced pursuant to a progressive sentencing statute.” Appellant’s Br. p. 1.

      The State argues that this issue was previously decided in Steele’s post-

      conviction proceeding, and the doctrine of res judicata precludes review of the

      argument.


[7]   The doctrine of res judicata bars a later suit when an earlier suit resulted in a

      final judgment on the merits, was based on proper jurisdiction, and involved the

      same cause of action and the same parties as the later suit. Reed v. State, 856

      N.E.2d 1189, 1194 (Ind. 2006). The doctrine of res judicata prevents the

      repetitious litigation of that which is essentially the same dispute. Id. As a

      general rule, when a reviewing court decides an issue on direct appeal, the

      doctrine of res judicata applies, thereby precluding its review in post-conviction

      Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 6 of 9
      proceedings. Id. A petitioner for post-conviction relief cannot escape the effect

      of claim preclusion merely by using different language to phrase an issue and

      define an alleged error. Id. “‘[W]here an issue, although differently designated,

      was previously considered and determined upon a criminal defendant’s direct

      appeal, the State may defend against defendant’s post-conviction relief petition

      on grounds of prior adjudication or res judicata.’” Id. (quoting Cambridge v.

      State, 468 N.E.2d 1047, 1049 (Ind. 1984)).


[8]   Just as a post-conviction petitioner cannot raise an issue that was previously

      decided on direct appeal, in this circumstance, Steele cannot raise an issue on

      direct appeal that was previously decided in his post-conviction proceeding. In

      his post-conviction proceeding, we rejected Steele’s argument that he was

      subjected to an impermissible double enhancement, and he makes the same

      argument here. His argument is barred by res judicata.


[9]   Steele erroneously contends that his argument is different than that presented in

      the post-conviction proceeding. In support of this argument he relies upon

      Downey v. State, 770 N.E.2d 794 (Ind. 2002), and Dye v. State, 972 N.E.2d 853

      (Ind. 2012). Steele argues that if he had been “sentenced after the Dye decision,

      no question exists that the trial court would have been prohibited from

      enhancing the conviction that was enhanced.” Appellant’s Br. p. 3. In Dye, our

      supreme court held that a defendant’s conviction for Class B felony unlawful

      possession of a firearm by a serious violent felon and enhancement for his status

      as an habitual offender constituted an impermissible double enhancement. Dye,

      972 N.E.2d at 858. However, Steele fails to mention that, on rehearing, our

      Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 7 of 9
       supreme court clarified its holding in Dye. See Dye v. State, 984 N.E.2d 625

       (2013). The court reaffirmed that “a person convicted of unlawful possession of

       a firearm by a serious violent felon may not have his or her sentence enhanced

       under the general habitual offender statute by proof of the same felony used to

       establish that the person was a ‘serious violent felon.’” Id. at 628. The State

       was not permitted “to support Dye’s habitual offender finding with a conviction

       that arose out of the same res gestae that was the source of the conviction used

       to prove Dye was a serious violent felon.” Id. at 630.


[10]   Even under Dye, as clarified, Steele is not entitled to relief. Steele makes no

       argument that his auto theft conviction was enhanced by proof of the same

       felony used to establish is status as an habitual offender. Steele also makes no

       argument that his habitual offender status arose out of the same res gestae that

       was the source of the conviction used to enhance his auto theft conviction. In

       fact, the charging informations reveal that his auto theft conviction was

       enhanced due to a 2009 auto theft conviction and his habitual offender status

       was based on a 1998 robbery conviction and a 2002 escape conviction. Steele’s

       argument fails.


                                                 Conclusion
[11]   Steele’s argument is barred by res judicata and, even if it was not barred,

       Steele’s status as an habitual offender does not violate our supreme court’s

       opinion in Dye. We affirm.


[12]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 8 of 9
Riley, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A03-1604-CR-889 |September 15, 2016   Page 9 of 9
