      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any
                                                                               Sep 19 2019, 6:00 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                       CLERK
                                                                                Indiana Supreme Court
      estoppel, or the law of the case.                                            Court of Appeals
                                                                                     and Tax Court




      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Mark A. Petry                                            Curtis T. Hill, Jr.
      Carlisle, Indiana                                        Attorney General
                                                               Evan Matthew Comer
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Mark A. Petry,                                           September 19, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-668
              v.                                               Appeal from the
                                                               Pike Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff                                       Jeffrey L. Biesterveld, Judge
                                                               Trial Court Cause No.
                                                               63C01-1201-FB-29



      Vaidik, Chief Judge.


[1]   Following a 2013 jury trial, Mark A. Petry was convicted of Count I: Class B

      felony criminal deviate conduct, Count II: Class D felony sexual battery, and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-668 | September 19, 2019                 Page 1 of 3
      Count III: Class D felony criminal confinement. Petry then admitted that he is

      a habitual offender based on earlier felony convictions (Count IV). The trial

      court sentenced Petry to 20 years for Count I, 3 years each for Counts II and

      III, and 25 years for Count IV. The court ordered the sentences for Counts I-III

      to be served concurrently and the sentence for Count IV to “be served

      consecutive to Counts I, II and III.” Appellant’s App. Vol. II p. 50.


[2]   In 2019, Petry filed a motion to correct erroneous sentence alleging that “the

      imposition of the habitual offender enhancement, as a separate count,

      constitutes an erroneous sentence which requires correction.” Id. at 54. Petry

      didn’t ask to be resentenced; instead, he asked for the habitual-offender

      enhancement to be vacated altogether. The State filed a motion to dismiss,

      which the trial court granted.


[3]   Petry now appeals, repeating the arguments he made below. It is error for a

      trial court to impose a habitual-offender enhancement as a separate sentence.

      See Howard v. State, 873 N.E.2d 685, 691 (Ind. Ct. App. 2007). But that is what

      the trial court did here. See Appellant’s App. Vol. II p. 50 (“The sentence for

      Count IV, the Habitual Offender Enhancement, shall be served consecutive to

      Counts I, II and III.”). As the State notes, the proper remedy in this situation is

      “well-settled,” that is, “[w]here a trial court improperly runs a habitual offender

      enhancement as a separate consecutive penalty, the case must be remanded to

      the trial court with instructions to enter a sentencing order that reflects that the

      enhancement is not a separate conviction.” Appellee’s Br. p. 13 (citing Edwards

      v. State, 479 N.E.2d 541, 548 (Ind. 1985)). We therefore reverse the trial court’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-668 | September 19, 2019   Page 2 of 3
      dismissal of Petry’s motion to correct erroneous sentence and remand this case

      with instructions for the trial court to sentence Petry on Count I to 45 years (20

      years enhanced by 25 years for being a habitual offender). As for Petry’s

      argument that the remedy should be to vacate his habitual-offender

      enhancement, we decline to do so given our Supreme Court’s longstanding

      remedy of remanding the case to the trial court for a new sentencing order.


[4]   Reversed and remanded.


      Riley, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-668 | September 19, 2019   Page 3 of 3
