                                                                   Jul 07 2015, 9:15 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jerry T. Drook                                             Gregory F. Zoeller
Marion, Indiana                                            Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bryan A. Cox,                                              July 7, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           27A05-1412-CR-599
        v.                                                 Appeal from the Grant Circuit Court.
                                                           The Honorable Mark Spitzer, Special
                                                           Judge.
State of Indiana,                                          Cause No. 27C01-1412-FB-22
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015                    Page 1 of 6
[1]   Bryan Cox appeals from the sentence enhancement imposed as a result of his

      Habitual Offender1 adjudication. Cox argues that the doctrine of amelioration

      applies and that the habitual offender statute that became effective on July 1,

      2014 should have been applied at his sentencing. Finding no error, we affirm.


                                                          Facts
[2]   On April 30, 2014, the State charged Cox with two counts of Class B felony

      dealing in cocaine and with being an habitual offender. On October 14 and 15,

      2014, a jury trial was held. The jury found Cox not guilty of one count of

      dealing in cocaine and guilty of one count of dealing in cocaine. 2 Cox then

      pleaded guilty to being an habitual offender.


[3]   On November 21, 2014 the trial court held a sentencing hearing. At the

      hearing, all parties—including Cox—agreed that the habitual offender statute in

      effect at the time Cox committed the crime applied to his case. The trial court

      sentenced Cox to fifteen years on the dealing cocaine conviction, with five years

      suspended.3 The trial court enhanced this sentence by ten years for the habitual

      offender adjudication. Cox now appeals.




      1
        Indiana Code § 35-50-2-8 (2013). This statute has been revised since the time that Cox committed the crime
      for which he was convicted; we apply the version of the statute in effect at the time Cox committed his crime.
      2
          Cox does not appeal his conviction for dealing in cocaine.
      3
          Cox does not appeal his sentence for dealing in cocaine.


      Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015                             Page 2 of 6
                                    Discussion and Decision
[4]   Cox argues that the trial court erred in applying the version of the habitual

      offender statute that was in effect at the time he committed the offense in the

      instant case. He argues that, under the doctrine of amelioration, the trial court

      should have applied the amended habitual statute that became effective on July

      1, 2014. Cox maintains that he was not eligible for habitual offender status

      under the amended statute and that we should vacate his habitual offender

      enhancement.


[5]   At the outset, we note that Cox has waived his argument. He did not object

      when the trial court stated that it would sentence Cox under the old habitual

      offender statute. Rather, during the sentencing hearing, counsel for the defense

      agreed with the trial court that the habitual offender statute in force at the time

      Cox committed the offense was the correct statute to be applied. Tr. p. 170. It

      is well established that, in order to preserve a claim of error for appeal, a

      defendant must make a contemporaneous objection to the trial court. Ware v.

      State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004). Cox failed to make such an

      objection, and has therefore waived his argument.


[6]   Waiver notwithstanding, we will address Cox’s amelioration argument on its

      merits. “The doctrine of amelioration allows a defendant, who is sentenced

      after the effective date of a statute that provides for more lenient sentencing, to

      take advantage of the more lenient statute rather than be sentenced under the

      more harsh statute that was in effect when the defendant was charged or


      Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015      Page 3 of 6
      convicted.” Hellums v. State, 758 N.E.2d 1027, 1028-29 (Ind. Ct. App. 2001)

      (citing Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997)). The doctrine is

      appropriately applied only if the legislature intended that the statute as

      amended apply to all persons for whom such application would be possible and

      constitutional. Id. at 1029.


[7]   Cox argues that, as he was sentenced after the date that the amended habitual

      offender statute became effective, he should be allowed to take advantage of the

      more lenient amended habitual offender statute. Cox is correct that—as applied

      to him—the amended statute is more lenient. The habitual offender statute in

      force when Cox committed his crime provides that “[t]he court shall sentence a

      person found to be a habitual offender to an additional fixed term that is not

      less than the advisory sentence for the underlying offense nor more than three

      (3) times the advisory sentence for the underlying offense.” Ind. Code § 35-50-

      2-8(h) (2013). Cox was convicted of Class B felony dealing in cocaine, a

      conviction that carries with it an advisory sentence of ten years. I.C. § 35-50-2-

      5 (2013). Therefore, the trial court was required to sentence Cox to an

      enhancement of at least ten years. Under the amended statute, the trial court

      may impose as little as six years. I.C. § 35-50-2-8 (2014). Cox also points out

      that the amended statute provides:

              (c) A person convicted of a Level 5 felony is a habitual offender if the
              state proves beyond a reasonable doubt that:
                       (1) the person has been convicted of two (2) prior unrelated
                       felonies;



      Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015             Page 4 of 6
                       (2) at least one (1) of the prior unrelated felonies is not a Level 6
                       felony or a Class D felony
      Id. As his prior unrelated felonies are Class D felonies, Cox argues that we

      should find that he would not have been eligible for habitual status under the

      amended statute and vacate his sentence. Appellant’s App. p. 12.


[8]   However, while Cox has shown that he was sentenced after the date of the

      amended statute and that the amended statute is more lenient, he cannot show

      that the legislature intended the doctrine to apply. In fact, the legislature has

      clearly shown that it did not intend the doctrine of amelioration to apply. The

      amendment to the habitual offender statute was a part of Public Law 158-2013,

      and pursuant to Indiana Code section 1-1-5.5-21:

              Sec. 21. (a) A SECTION of P.L.158-2013 or P.L.168-2014 does not
              affect:
                       (1) penalties incurred;
                       (2) crimes committed; or
                       (3) proceedings begun;


              before the effective date of that SECTION of P.L.158-2013 or P.L.168-
              2014. Those penalties, crimes, and proceedings continue and shall be
              imposed and enforced under prior law as if that SECTION of P.L.158-
              2013 or P.L.168-2014 had not been enacted.
              (b) The general assembly does not intend the doctrine of amelioration
              (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any
              SECTION of P.L.158-2013 or P.L.168-2014.
[9]   In the instant case, Cox’s crime was committed before, and all proceedings

      began before, the effective date of the amended habitual offender statute. In




      Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015               Page 5 of 6
       addition, it is clear that the legislature did not intend the doctrine of

       amelioration to apply. Therefore, Cox’s argument fails. 4


[10]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       4
         Cox also asks that, if we do not find that the doctrine of amelioration applies, we find that Cox’s sentence
       was inappropriate in light of the nature of the offense and his character pursuant to Indiana Appellate Rule
       7(B). We decline to do so. Here, the trial court imposed the minimum sentence as required by the habitual
       offender statute in effect at the time Cox committed his offense, and we do not find the sentence to be
       inappropriate.

       Court of Appeals of Indiana | Opinion 27A05-1412-CR-599 | July 7, 2015                              Page 6 of 6
