Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                                      Jul 03 2013, 7:01 am
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER                                   STEPHEN T. OWENS
Attorney General of Indiana                          Public Defender of Indiana

CYNTHIA L. PLOUGHE                                   EMILY J. WITNEY
Deputy Attorney General                              Deputy Public Defender
Indianapolis, Indiana                                Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                    )
                                                     )
       Appellant-Respondent,                         )
                                                     )
               vs.                                   )    No. 02A04-1209-PC-476
                                                     )
MARK M. HAIRSTON,                                    )
                                                     )
       Appellee-Petitioner.                          )


                       APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable Robert J. Schmoll, Senior Judge
                                Cause No. 02D04-0708-PC-95



                                           July 3, 2013


      MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION


CRONE, Judge
                                            Case Summary

        Mark M. Hairston petitions for rehearing in State v. Hairston, No. 02A04-1209-PC-

476 (Ind. Ct. App. Mar. 15, 2013), and requests that we vacate his ten-year repeat sexual

offender enhancement. In our memorandum decision, we reversed the post-conviction

court’s decision to vacate Hairston’s habitual offender finding on identity grounds. In

reinstating Hairston’s habitual offender adjudication, we resurrected an issue that the post-

conviction court had deemed moot: whether the trial court impermissibly enhanced

Hairston’s sentence by imposing a consecutive sentence that includes a habitual offender

enhancement and a repeat sexual offender enhancement, both based on the same predicate

offense (his 1996 sexual battery conviction) and whether appellate counsel provided

ineffective assistance of counsel in failing to raise the double enhancement issue in

Hairston’s direct appeal.1 The post-conviction court never addressed the issue on its merits,

and we grant Hairston’s petition for the sole purpose of addressing the double enhancement

issue. Because the applicable statutes do not explicitly authorize double enhancements and

because the trial court imposed the enhancements consecutively, we conclude that Hairston’s

sentence runs afoul of the protection against double enhancements. We also conclude that

his appellate counsel’s failure to raise the issue on direct appeal amounts to ineffective

assistance. As a result, his ten-year repeat sexual offender enhancement must be vacated, and

we remand with instructions to adjust his sentencing accordingly. We affirm our original


        1
           The post-conviction court specifically concluded, “Given the ruling above in this cause and the
vacation of the Habitual Offender enhancement[,] the issue of the defendant’s sentence being doubly enhanced
is therefore rendered moot.” Appellant’s App. at 521.


                                                     2
decision in all other respects.

                                  Discussion and Decision

       Double enhancements of a defendant’s sentence are permissible only when there is

explicit legislative direction authorizing them. Dye v. State, 972 N.E.2d 853, 857 (Ind.

2012). The rule is well-established and applies to all three types of statutes authorizing

enhanced sentences for recidivist offenders: general habitual offenders, specialized habitual

offenders, and progressive-penalty statutes. Id. at 856-57; see, e.g., Stanek v. State, 603

N.E.2d 152, 153-54 (Ind. 1992) (vacating habitual offender enhancement where defendant’s

conviction had already been enhanced to class C felony pursuant to progressive-penalty

statute governing habitual traffic law violators). Whether a particular double enhancement is

permissible is therefore a matter of statutory interpretation. Dye, 972 N.E.2d at 857. Here,

Hairston’s sentence was enhanced under both the general habitual offender statute, Indiana

Code Section 35-50-2-8, and the repeat sexual offender statute, Indiana Code Section 35-50-

2-14. Neither statute explicitly authorizes the use of both enhancements in the same

sentence.

       In Sweatt v. State, 887 N.E.2d 81 (Ind. 2008), our supreme court noted the lack of

express legislative direction in evaluating permissible and impermissible double

enhancements. There, the alleged double enhancement involved the use of the same

predicate offense, Sweatt’s 1994 rape conviction, to support a general habitual offender

finding and to serve as the basis for a serious violent felon (“SVF”) designation. Id. at 83.

The Sweatt court explained that a court may avoid the double enhancement problem by


                                             3
attaching the habitual offender enhancement to a count separate from the SVF offense, i.e., a

burglary count. Id. at 84. As such, each sentence, taken separately, would pass muster. Id.

However, “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. “On the other hand, if the trial court orders the sentences to

run concurrently, the enhancements, though duplicative in name, operate just once to increase

the defendant’s term of imprisonment.” Id. Noting that “the potential penalties flowing

from various criminal acts are first and foremost a matter for legislative decision,” our

supreme court remanded with instructions that the trial court consider whether to revise

Sweatt’s sentence to remedy the defect. Id. at 85.

       Here, the trial court attached the general habitual offender enhancement to Hairston’s

kidnapping conviction and the repeat sexual offender enhancement to his aiding in deviate

sexual conduct conviction. However, the court imposed the sentences consecutively. Thus,

Hairston’s sentence contains an impermissible double enhancement. Unlike the defendants

in Stanek, Dye, and Sweatt, however, Hairston raises the issue not as a freestanding claim,

but rather within the framework of an ineffective assistance of counsel claim. Ind. Post-

Conviction Rule 1(8). As such, it must be examined within the framework of the two-

pronged Strickland test. To prevail on an ineffective assistance claim, the petitioner must

satisfy two components, i.e., he must demonstrate both deficient performance and prejudice

resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Hairston’s ineffective assistance claim concerns his appellate counsel’s failure to raise


                                               4
the double enhancement issue. The standard of review for a claim of ineffective assistance

of appellate counsel is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d

1031, 1048 (Ind. 1994), cert. denied (1995). The petitioner must establish deficient

performance by appellate counsel resulting in prejudice. Id. “Ineffective assistance of

appellate counsel claims generally fall into three basic categories: (1) denial of access to an

appeal, (2) waiver of issues, and (3) failure to present issues well.” Henley v. State, 881

N.E.2d 639, 644 (Ind. 2008). In evaluating whether appellate counsel performed deficiently

by failing to raise an issue on appeal, we apply the following test: (1) whether the unraised

issue is significant and obvious from the face of the record and (2) whether the unraised issue

is “clearly stronger” than the raised issues. Id. at 645.

       Here, appellate counsel challenged the appropriateness of Hairston’s aggregate 147-

year sentence pursuant to Indiana Appellate Rule 7(B). In the midst of counsel’s research

and analysis of the sentence, he should have taken note of the various components that

contributed to such a lengthy term. Two of the components were sentence enhancements,

one based on the general habitual offender statute (a thirty-year enhancement) and the other

based on the repeat sexual offender statute (a ten-year enhancement). Both enhancements

were based on the same predicate offense, his 1996 sexual battery conviction. These

enhancements accounted for forty years of his 147-year sentence, and based on the rule

espoused in Stanek and its progeny, appellate counsel should have raised the issue of double

enhancement. The issue was significant and obvious in the record and was clearly stronger

than a general challenge to the appropriateness of Hairston’s sentence. In failing to raise it,


                                               5
counsel performed deficiently. Accordingly, we remand to the post-conviction court with

instructions to issue an amended sentencing order vacating Hairston’s ten-year repeat sexual

offender enhancement.

       We affirm our original decision in all other respects.

KIRSCH, J., and BARNES, J., concur.




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