MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                May 09 2017, 9:56 am
this Memorandum Decision shall not be                                      CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P.                     Attorney General of Indiana
Huntington, Indiana
                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric D. Huffman,                                        May 9, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A02-1612-CR-2791
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff.                                     Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1512-F4-13



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2791 | May 9, 2017             Page 1 of 5
                                  Case Summary and Issue
[1]   Eric Huffman was found guilty by a jury of burglary, theft, and possession of a

      firearm. He thereafter admitted to prior convictions that established his status

      as a serious violent felon and an habitual offender. The trial court sentenced

      Huffman to twelve years for burglary, enhanced by fifteen years due to the

      habitual offender finding, to two and one-half years for theft, and to twelve

      years for unlawful possession of a firearm by a serious violent felon. All

      sentences were ordered to be served consecutively, resulting in a total sentence

      of forty-one and one-half years.


[2]   Huffman appeals his sentence, raising two issues, of which we find the

      following dispositive: whether the trial court erred in ordering his sentence for

      unlawful possession of a firearm by a serious violent felon and his enhanced

      sentence for burglary to be served consecutively. We conclude and the State

      concedes the trial court did err because the habitual offender enhancement to

      the burglary sentence and the serious violent felon status are based on the same

      prior conviction, and consecutive sentences on those two counts are an

      impermissible double enhancement. We therefore reverse and remand to the

      trial court to correct Huffman’s sentence.1




      1
       Huffman’s second appellate issue is whether his forty-one and one-half-year sentence is inappropriate.
      Because we reverse this sentence, we need not address this issue.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2791 | May 9, 2017                Page 2 of 5
                            Facts and Procedural History
[3]   Based on an incident occurring on December 28, 2015, the State charged

      Huffman with burglary, a Level 4 felony; theft of a firearm, a Level 6 felony;

      and unlawful possession of a firearm by a serious violent felon, a Level 4

      felony. The information for unlawful possession alleged Huffman was a serious

      violent felon due to a previous conviction for escape, a Class C felony, in cause

      number 05C01-1212-FC-452. The State also alleged Huffman was an habitual

      offender based on prior convictions for theft in cause number 05C01-0908-FB-

      43 and escape in cause number 05C01-1212-FC-452.


[4]   A jury found Huffman guilty of burglary, theft, and possession of a firearm.

      Huffman then admitted to having prior convictions for escape and theft,

      establishing his status as an habitual offender and a serious violent felon. The

      trial court sentenced Huffman to the maximum term of twelve years for

      burglary, enhanced by fifteen years for the habitual offender finding; the

      maximum term of two and one-half years for theft; and the maximum term of

      twelve years for unlawful possession of a firearm by a serious violent felon. The

      trial court ordered the sentences to be served consecutively, for a total sentence

      of forty-one and one-half years.



                                Discussion and Decision
[5]   The general rule regarding multiple sentence enhancements is that the trial

      court cannot impose a double enhancement absent express authority from the


      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2791 | May 9, 2017   Page 3 of 5
      legislature. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). Whether a

      defendant has been subjected to an improper double enhancement of his

      sentence is a matter of law that we review de novo. Schnepp v. State, 768 N.E.2d

      1002, 1004 (Ind. Ct. App. 2002), trans. denied.


[6]   Huffman contends the trial court erred in ordering his burglary sentence—

      enhanced by the habitual offender finding—and his unlawful possession of a

      firearm by a serious violent felon sentence to be served consecutively because

      the same prior conviction was used to establish his status as both an habitual

      offender and a serious violent felon. In Sweatt v. State, 887 N.E.2d 81 (Ind.

      2008), our supreme court confronted virtually the same scenario. The

      defendant in Sweatt was convicted of burglary and unlawful possession of a

      firearm by a serious violent felon. The trial court sentenced the defendant to

      twenty years on each count and enhanced the burglary count by thirty years due

      to an habitual offender finding. The defendant argued the trial court erred by

      using the same prior conviction to sentence him as an habitual offender and to

      convict him of unlawful possession of a firearm by a serious violent felon. The

      court held using a single prior felony conviction as the basis for a serious violent

      felon count and also as grounds for an habitual offender finding does not by

      itself create a double enhancement. Id. at 84. The trial court may avoid a

      double enhancement problem in that situation by attaching the habitual

      enhancement to an offense other than the serious violent felon count so the

      enhancements operate on different counts. Id. However, “when counts are

      ordered served consecutively this is a distinction without a difference” because


      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2791 | May 9, 2017   Page 4 of 5
      “where separate counts are enhanced based on the same prior felony

      conviction, ordering the sentences to run consecutively has the same effect as if

      the enhancements both applied to the same count.” Id.


[7]   The State concedes that Sweatt dictates Huffman’s sentence in this case is

      improper. See Brief of Appellee at 11-12. We agree. The finding that Huffman

      was an habitual offender was based in part on his prior escape conviction; his

      status as a serious violent felon was based on that same escape conviction.

      Because the enhancements of two separate counts were based on the same prior

      conviction, ordering the sentences to be served consecutively constitutes an

      improper double enhancement.



                                              Conclusion
[8]   We reverse Huffman’s sentence and remand to the trial court to resentence

      Huffman to concurrent terms on the burglary and unlawful possession counts

      so as to alleviate the double enhancement.


[9]   Reversed and remanded.


      Vaidik, C.J., and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2791 | May 9, 2017   Page 5 of 5
