MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Dec 21 2018, 9:03 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana                                        J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana

                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Clear,                                           December 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1561
        v.                                              Appeal from the Shelby Superior
                                                        Court
State of Indiana,                                       The Honorable David N. Riggins,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        73D02-1603-F6-114



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018                Page 1 of 4
[1]   Steven Clear appeals his sentence for being an habitual vehicular substance

      offender. We remand.


                                      Facts and Procedural History

[2]   On March 28, 2016, the State charged Clear with: Count I, operating while

      intoxicated as a class A misdemeanor; Count II, operating while intoxicated as

      a level 6 felony; and Count III, driving while suspended as a class A

      misdemeanor. The State later charged Clear with: Count IV, operating a

      vehicle with an alcohol concentration equivalent to at least 0.15 grams of

      alcohol per 210 liters of breath or 100 milliliters of blood; Count V, operating a

      vehicle while intoxicated as a level 5 felony; and Count VI, being an habitual

      vehicular substance offender.


[3]   On April 19, 2018, the court held a bench trial. The court’s sentencing order

      states that it entered judgment of conviction for Count III, driving while

      suspended as a class A misdemeanor; Count V, operating a vehicle while

      intoxicated as a level 5 felony; and Count VI, being an habitual vehicular

      substance offender. The court found that Count II merged into Count V and

      that Count V supersedes Count I. The court’s order sentenced Clear to thirty-

      four days for Count III, five years for Count V, and six years for Count VI with

      all sentences served consecutively to each other and to the sentences under

      cause numbers 03D02-1801-F6-55 and 03D02-1805-CM-999. In its abstract of

      judgment, the court listed Counts III, V, and VI as separate counts with the

      separate sentences imposed.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018   Page 2 of 4
                                                  Discussion

[4]   Clear argues that Ind. Code § 9-30-15.5-2(d) directs the trial court to sentence a

      defendant found to be an habitual vehicular substance offender to an additional

      term of imprisonment which is added to the term of imprisonment imposed for

      the underlying felony. He asserts that the trial court treated the habitual

      vehicular substance offender enhancement as a separate offense with a separate

      sentence and that remand is appropriate. The State agrees that to the extent

      there is any confusion about whether the enhancement was entered as a

      standalone sentence for a separate offense, instead of being entered as an

      enhancement in relation to the underlying offense, this Court should remand

      for the trial court to clarify that the enhancement renders the sentence for Count

      V to be eleven years.


[5]   Ind. Code § 9-30-15.5-2(d) provides: “The court shall sentence a person found

      to be a habitual vehicular substance offender to an additional fixed term of at

      least one (1) year but not more than eight (8) years of imprisonment, to be added

      to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”

      (Emphasis added).


[6]   Recently, in Weekly v. State, 105 N.E.3d 1133, 1139 (Ind. Ct. App. 2018), trans.

      denied, we explained that the “to be added” language in this statute is equivalent

      to the “attach” language in Indiana’s habitual offender statute, which provides,

      in relevant part:


              Habitual offender is a status that results in an enhanced sentence.
              It is not a separate crime and does not result in a consecutive
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018   Page 3 of 4
              sentence. The court shall attach the habitual offender
              enhancement to the felony conviction with the highest sentence
              imposed and specify which felony count is being enhanced.


      Ind. Code § 35-50-2-8(j) (emphasis added). “[I]t is well-settled that ‘“[a]

      habitual offender finding does not constitute a separate crime nor result in a

      separate sentence, but rather results in a sentence enhancement imposed upon

      the conviction of a subsequent felony.”’” Weekly, 105 N.E.3d at 1139 (quoting

      Kilgore v. State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State,

      680 N.E.2d 526, 527 (Ind. 1997)), trans. denied).


[7]   Pursuant to Ind. Code § 9-30-15.5-2, we remand with instructions that the trial

      court vacate the separate sentence on the habitual vehicular substance offender

      finding and attach the enhancement to Clear’s sentence for operating a vehicle

      while intoxicated as a level 5 felony under Count V and amend the sentencing

      order and abstract of judgment accordingly. See Weekly, 105 N.E.3d at 1139

      (holding that the trial court erred when it ordered the defendant’s habitual

      substance offender sentence to run as a separate, consecutive sentence and

      remanding for resentencing).


                                                  Conclusion

[8]   For the foregoing reasons, we remand for entry of an amended sentencing order

      and abstract of judgment.


[9]   Remanded.


      Bailey, J., and Bradford, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018   Page 4 of 4
