                                                                                Jun 30 2015, 7:55 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kevin Wild                                                Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Lyubov Gore
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Scott Grundy,                                             June 30, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1409-CR-665
              v.                                                Appeal from the Marion Superior
                                                                Court

      State of Indiana,                                         The Honorable Kurt Eisgruber, Judge
      Appellee-Plaintiff.                                       The Honorable Steven J. Rubick,
                                                                Magistrate

                                                                Cause No. 49G01-1401-FC-1983




      Najam, Judge.


                                        Statement of the Case
[1]   Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony,

      and his habitual offender adjudication. Grundy presents three issues for our

      review, which we revise and restate as:

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                       Page 1 of 19
              1. Whether the State presented sufficient evidence to support his
              conviction.

              2. Whether his sentence is inappropriate in light of the nature of
              the offense and his character.

              3. Whether the trial court erred when it enhanced his sentence
              under the prior version of the habitual offender statute.


[2]   We affirm Grundy’s conviction and his sentence, and we hold that the July 1,

      2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8,

      do not apply retroactively to offenses committed prior to the effective date of

      our new criminal code.


                                  Facts and Procedural History
[3]   In August 2012, Grundy began a romantic relationship with Jennifer Smith,

      which lasted for more than a year. Because of Grundy’s alcoholism and

      substance abuse, however, the two separated and reconciled frequently, and the

      couple’s relationship was often tumultuous. Indeed, between April and late

      December 2013, more than ten police reports resulted from Grundy’s

      relationship with Smith.


[4]   In December 2013, Smith was employed at Covance in Indianapolis, and, on

      December 28, Smith agreed to give two of her coworkers, Tonya Hardin and

      Fu Chia Tsai, a ride home after their shift ended at 7:00 p.m. The three’s

      relationship was strictly professional; none associated outside of work. At

      approximately 7:00 p.m., Smith, Hardin, and Tsai exited the building together

      and walked to Smith’s vehicle, and, when they approached, they noticed that
      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015       Page 2 of 19
      someone had broken Smith’s windshield wipers. Smith immediately suspected

      Grundy, who had sent Smith argumentative text messages earlier in the day, to

      which Smith did not respond.


[5]   As the three observed the damage to Smith’s car, Grundy drove his vehicle1

      from a nearby road, across a grassy area adjacent to the parking lot at Covance,

      and over some shrubbery that divided the parking lot from the grassy area.

      Grundy sped towards Smith, Hardin, and Tsai, and, when he got close to where

      the three were standing, Grundy exited the vehicle and aggressively approached

      Tsai. As Grundy walked towards Tsai, Grundy asked Tsai who he was and

      about the status of his relationship with Smith. When Tsai answered that he

      was Smith’s coworker, Grundy responded, “Co-worker my ass.” Tr. at 13.

      Grundy then charged Tsai and punched him once in the face, which knocked

      Tsai to the ground. Once down, Grundy delivered a kick to Tsai’s face.

      Grundy immediately returned to his vehicle and fled. Tsai remained conscious

      but went into shock and lost memory for ten seconds after the attack.2


[6]   After the attack, Smith ran to the security desk at Covance and reported to the

      acting security guard, Daniel Osborne, that Grundy had attacked Tsai.

      Osborne called the police, and Officer Eric Walker with the Indianapolis

      Metropolitan Police Department responded to Osborne’s call. Officer Walker

      actually knew Tsai personally, but, when he arrived, Officer Walker did not



      1
          At the time, Grundy’s license was suspended as the result of a DUI conviction.
      2
          Tsai remembers being punched and kicked but nothing else about the assault or its immediate aftermath.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                          Page 3 of 19
      recognize him because of the severe injuries to Tsai’s face. Smith identified

      Grundy to Officer Walker as Tsai’s assailant.


[7]   Because of his injuries, Tsai was transported to the hospital where he

      discovered that Grundy had broken six of the seven bones in his right eye

      socket, fractured his right cheek bone, and broken his nose in two places. Tsai’s

      cheek was “significantly flattened,” and, at the hospital, he had double vision,

      blurred vision, and trouble breathing. State’s Ex. 17. Tsai was treated and

      released.


[8]   On January 13, 2014, the hospital referred Tsai to Dr. Hu Bai Harold Lee, an

      oculoplastic surgeon who specializes in reconstructive surgery, but, due to

      swelling in Tsai’s face, Dr. Lee could not operate until January 21, 2014. In the

      interim, Tsai continued to have difficulty chewing and breathing, 3 and he

      suffered headaches almost daily, which disrupted his sleep. As a result of his

      injuries, Tsai could not read. When Dr. Lee was able to operate on Tsai on

      January 21, to reconstruct Tsai’s face, he placed three permanent titanium

      plates with metal screws into Tsai’s eye socket, and he also fitted a permanent,

      plastic implant into Tsai’s eye socket. The plates, screws, and implant restored

      the bones in Tsai’s face to their anatomically correct positions, and they

      corrected his double and blurred vision, which would have persisted absent the

      surgery. Tsai’s vision prescription, however, changed, and the surgery




      3
        Tsai could not breathe out of his nose for approximately four months after the attack, which, in turn,
      damaged his ribs. The injury to Tsai’s ribs required physical therapy.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                            Page 4 of 19
       permanently left Tsai with scarring and a droopy eyelid. Moreover, because the

       attack damaged a prominent nerve in Tsai’s eye socket, which provides

       sensation to the cheek, Tsai now has permanent numbness in the right side of

       his face.


[9]    On January 15, 2014, the State charged Grundy by information with one count

       of battery, as a Class C felony, and, on February 4, the State amended its

       charging information to include one count of aggravated battery, a class B

       felony. Thereafter, Grundy moved for a speedy trial, which the trial court

       granted on June 9, and the State filed its habitual offender information on June

       10.4


[10]   While Grundy awaited trial in the Marion County Jail, he called his uncle,

       Gerald Grundy (“Uncle Gerry”), who questioned Grundy about his crime. In

       response, Grundy explained:


                 [Grundy]: . . . [W]hen two people [are] in a fight[,] how hard are
                 [they] supposed to fight[?] I hit the guy one time[,] kicked him
                 one time[;] that was it.

                                                           ***

                 [Grundy]: [H]ow bad is serious bodily injury? I mean . . . they
                 have the video and all that. And allegedly I did all this stuff.
                 That’s how we talk on the phone. But even if the video was to
                 reflect anything[,] it would allegedly show somebody getting
                 punched one time and getting kicked one time and that’s it[.]



       4
           The State filed its Notice of Intent to File Habitual Offender Enhancement on January 29, 2014.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                            Page 5 of 19
                                                        ***

               [Uncle Gerry]: You hit him a couple times?

                                                        ***

               [Grundy]: Yeah[,] just tunin[g] somebody up a little bit for
               me[dd]lin[g]. And that was it. . . .

               [Uncle Gerry]: [O]h[,] he was . . . me[dd]lin[g] with you and
               Jenny . . . ?

               [Grundy]: Yeah . . . but I’m not gonna be rappin[g] on no phone
               [be]cause they record all this stuff.

                                                        ***

               [Grundy]: . . . [I]t’s not that bad[,] man[.] I mean[,] it’s a
               fight[. T]here’s no question it’s a fight[. S]omebody got f[*****]
               up. In fights[,] people get f[*****] up.

                                                        ***

               [Grundy]: [T]hat’s the bottom line[. W]hat do you do[,] rub a
               feather across somebody’s face that you fightin[g]? Never heard
               of that one.


       State’s Ex. 19.


[11]   On July 24, just before trial and again from jail, Grundy sent a letter to Smith in

       which he told her that she should not come to trial to testify against him. After

       he professed his love to Smith, Grundy wrote:



       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015       Page 6 of 19
               . . . If you show-up [sic] you will make yourself apart [sic] of an
               epic event[. O]ne side will try to break you down[,] and so will
               the other, and it will take its toll[. A]nd neither side will have
               compassion for your well[-]being, because both side[s] will be
               trying to win at your expense, [sic] (simple and plain)!

               Beside[s] all that[,] what I am trying to say to you is it will not
               matter what you say for me or against me[. It] will not make that
               much difference that day, and why are you so gun hoe [sic] on
               [testifying] when the others have chosen not too [sic]?

               Basically[,] you are the only one tripping over all this[. Y]ou
               know who has made it clear they are not coming, so why have
               you made it clear to my Uncle [sic] that you are?

               Babe[,] you know what is at stake with me should you act like
               that[. Y]ou are not my Orangie[;] you can not [sic] help me that
               day[,] and I am telling you not to come period! With the only
               acception [sic] to this is [sic] that you are told by my folks too
               [sic]. You are not going to play another role in ruining my life.

               If you need to do anything[,] the only right thing is to be on my
               side or stay away from all this. I see it has taken a serious toll on
               you and your thinking and judgment. So allow me to reassure
               you that all will be well if you listen and follow the instruction of
               our team, and stay out of it[. Y]ou are in way over your head!


       State’s Ex. 15.


[12]   The trial court held Grundy’s bench trial on August 13. At the trial, Tsai

       testified that, in addition to the permanent numbness in his face, he continued

       to have headaches almost daily, which affect his sleep, and issues with his neck.

       Further, he testified that he still has trouble with the functioning of his right eye.

       At the conclusion of the trial, the court convicted Grundy of aggravated battery,

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015        Page 7 of 19
       a Class B felony, and “merge[d]” the battery charge, as a Class C felony, into

       the aggravated battery conviction. Tr. at 119.


[13]   Grundy’s habitual offender determination and sentencing hearing were held on

       August 26. At the hearing, Grundy did not contest that he was a habitual

       offender, and he stipulated to the admission of his prior convictions. Thus, the

       trial court adjudicated Grundy a habitual offender and proceeded to the

       sentencing phase of the hearing, during which Grundy offered in mitigation:

       (1) his alcoholism and substance abuse; (2) his participation in Alcoholics

       Anonymous and Narcotics Anonymous classes while incarcerated; (3) his role

       as a caregiver to elderly family members who depend on him; and (4) his

       expression of remorse for the injuries his attack inflicted on Tsai. At the

       conclusion of the sentencing hearing, the court sentenced Grundy to ten years

       in the Indiana Department of Correction for the aggravated battery, the

       advisory sentence for a Class B felony, which the court enhanced by another ten

       years, the minimum allowed under the habitual offender statute as it existed

       before the revisions to our criminal code took effect on July 1, 2014. The court

       enhanced Grundy’s sentence by only ten years because it believed that Grundy

       was not “the worst of the worst” habitual offenders. Id. at 177. The trial court

       suspended two years of Grundy’s sentence to probation.


[14]   In support of the sentence imposed, the trial court stated:

               [W]hat your history has shown me is that you don’t learn from
               your mistakes despite ample opportunities . . . . [W]henever you
               talked about this particular incident[,] you kept saying[,] “I

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015   Page 8 of 19
        wouldn’t do it if I were not under the influence of drugs or
        alcohol.” . . . [B]ut if you want me to believe you and believe the
        remorse that you said[,] you don’t get to say[,] “I wouldn’t have
        done this if.” You simply have to say[,] “I did it—I was wrong.”
        You don’t put that distance between yourself and the act by
        claiming that you were under the influence at the time because
        that undercuts every statement of remorse you’re making to me.
        If you [were] wrong, admit you were wrong[;] don’t qualify it.

                                                 ***

        [T]he State[,] today[,] has requested a [thirty-five-]year sentence.
        I do not find that a [thirty-five-] year sentence is appropriate . . . .
        [B]ut I also don’t believe that the State’s last [plea] offer [of a
        twelve-year sentence] is sufficient. Having heard all of the
        evidence and having considered everything put forth
        today[, twelve years] is far too low, [thirty-five] is far too
        much . . . .

        In mitigation[,] though[,] Mr. Grundy took this case to trial[.] I
        still find he is due some mitigating weight having essentially
        accepted his status as a habitual offender. . . . Mr. Grundy has a
        remarkable family. . . . [I]t goes to your credit, Mr. Grundy, that
        the older members of your family rely on you as heavily as they
        do[,] so I’m affording some mitigating weight for that and some
        mitigating weight for the hardship that will be visited on your
        family by virtue of your impending incarceration. I will also give
        you some mitigating weight for your history of substance abuse.
        Your criminal history reflects [seventeen] alcohol and drug
        related arrests. One is too many. [Seventeen] is far too many[,]
        so you clearly have a problem, Mr. Grundy[,] but the weight that
        I give to that—the mitigating weight I give to that is tempered by
        the virtue of the number of opportunities that you’ve had to
        correct your behavior.

        In aggravation . . . your criminal history is something that cannot
        be overlooked. You have had [thirty-nine] total arrests, . . .

Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015         Page 9 of 19
         [twelve] misdemeanor convictions, three felonies—again,
         [seventeen] alcohol or drug related offenses[,] though not all [of]
         those have resulted in a conviction. The ones today that interest
         me the most and concern me the most are the battery conviction
         you had in 1991 . . . , your battery conviction in 2000 . . . , your
         second felony conviction for battery in 2009 . . . , the invasion of
         privacy charge from 2010 . . . [,] and your 2013 battery
         conviction . . . . Those are the convictions that have an element
         of violence and they show me that over the last [twenty-three]
         years[,] your propensity toward anger and violence has not
         lessened. I’m also more than a little troubled by the gun that you
         have tattooed on your shoulder . . . . [T]o have a gun tattooed on
         your shoulder glorifies violence. . . . [I]t speaks to something in
         your character that is concerning. I also have to give aggravating
         weight to . . . the effect this crime had on your victim. . . . When
         the structure of a person’s face is surgically changed[,] it changes
         that person forever. . . . [I]t was such a permanent change and
         his fear is such that he has had to leave this country[; 5] that’s
         pretty significant.

         You submitted to the Court a number of certificates that you
         accumulated while you were awaiting trial and ask for mitigating
         weight to be afforded that[,] but that’s counter-balanced by your
         efforts while incarcerated to influence the witnesses in this case.
         There’s no question the letter that you sent . . . was an effort to
         influence her. It was manipulative. . . . [T]here’s no question
         that you were attempting to influence your ex, attempting to
         convince her not to come to trial or her life would be changed[,]
         and she would be denied the love and support of your
         family[. T]hat was devious . . . and troubling.

         Lastly[,] in the telephone call that was played during the trial[,]
         you tried to explain away your actions characterizing it as just a


5
  At some point after Grundy’s trial but before sentencing, Tsai told the prosecutor that he was returning to
his native Taiwan because he no longer felt safe in the United States.

Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                           Page 10 of 19
              fight—that is was tuning up a guy for [meddling,] but this was
              not a fight[;] this was an attack. Mr. Tsai was not involved
              beyond being on the receiving end of a devastating punch[,] and
              when he fell to his knees defenseless[,] you kicked him in the
              head. That was an attack[. I]t was unprovoked[ and] irrationally
              violent[,] so coming here today and accepting responsibility and
              making a statement of remorse in an effort to remove some of the
              sting rings a bit hollow, Mr. Grundy.


      Id. at 170-76 (quotation marks and paragraph structure supplied). This appeal

      ensued.


                                      Discussion and Decision
                                 Issue One: Sufficiency of the Evidence

[1]   Grundy first contends that the State presented insufficient evidence to convict

      him of aggravated battery. Our standard of review for sufficiency of the

      evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

      quotation marks omitted).



      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015     Page 11 of 19
[2]   To prove that Grundy committed aggravated battery, as charged, the State had

      to demonstrate that he knowingly or intentionally inflicted injury on Tsai that

      caused “protracted loss or impairment of the function of a bodily member or

      organ.” Ind. Code § 35-42-2-1.5(2). We have previously observed “that

      ‘protracted’ means to ‘draw out or lengthen in time,’ and that ‘impairment’

      means the ‘fact or state of being damaged, weakened, or diminished.’” Mann v.

      State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008) (citations omitted). Expert

      testimony is not required to prove that a victim suffered a protracted

      impairment. Id.


[3]   Grundy concedes that Tsai suffered serious injuries, which is sufficient to

      support a conviction for battery, as a Class C felony. See I.C. § 35-42-2-1(a)(3).

      However, Grundy asserts that the evidence failed to demonstrate that Tsai

      suffered “protracted loss or impairment of the function” of his eye, which is

      necessary to support a conviction for aggravated battery. I.C. § 35-42-2-1.5(2).

      Instead, Grundy argues that, at the time of his trial, Tsai benefitted from the full

      functionality of his right eye.


[4]   In support of this argument, Grundy acknowledges that, in addition to

      permanent numbness and scarring, Tsai continued to have headaches and neck

      problems. However, he points out that Tsai did not lose consciousness during

      or after the attack and that Dr. Lee testified that Tsai’s surgery “was successful

      in restoring Tsai’s function back to his baseline level.” Appellant’s Br. at 12.

      But it is apparent that Grundy’s argument on appeal is merely a request that we

      reweigh the evidence, which will not do. See Pillow, 986 N.E.2d at 344. The

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015   Page 12 of 19
      evidence most favorable to the judgment establishes that, beyond protracted

      loss or impairment, Grundy’s attack left Tsai with permanent numbness,

      permanent scarring, and degraded vision in his right eye. Further, more than

      six months after the attack, Tsai continued to suffer from headaches, neck pain,

      and loss of sleep. This evidence is sufficient to demonstrate protracted loss or

      impairment and, therefore, to support Grundy’s conviction. See, e.g., Fleming v.

      State, 833 N.E.2d 84 at 90 (Ind. Ct. App. 2005) (distinguishing Neville).


[5]   In his attempt to argue that the evidence was insufficient to convict him of

      aggravated battery, Grundy also attempts to analogize the injuries inflicted in

      this case to those suffered by the victims in Neville v. State, 802 N.E.2d 516 (Ind.

      Ct. App. 2004), trans. denied, and Salone v. State, 652 N.E.2d 552 (Ind. Ct. App.

      1995), trans. denied, where we held that the evidence was insufficient to sustain

      the convictions for aggravated battery therein.6 However, those cases do not

      stand for the proposition that Grundy ascribes to them. In both cases, the

      prosecution failed to offer any evidence regarding the “severity or duration of

      functional impairment caused by the victim’s burns.” Neville, 802 N.E.2d at

      519 (discussing Salone, 652 N.E.2d at 559). The prosecutors in Neville and

      Salone left proof of protracted loss or impairment solely to an inference drawn

      by the factfinder “as a matter of common knowledge” that the injuries “resulted

      in protracted loss or impairment.” Id. In contrast, here, the State offered




      6
        In Salone, Salone was convicted of two counts of aggravated battery that corresponded to injuries inflicted
      on two separate victims. We affirmed one of his convictions and reversed the other. 652 N.E.2d at 559-60.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                           Page 13 of 19
      testimony from both Tsai and Dr. Lee that Tsai’s injuries were severe, long-

      lasting, and, to some extent, permanent.


                                             Issue Two: Sentence

[6]   Next, Grundy asserts that his aggregate twenty-year sentence is inappropriate in

      light of the nature of the offense and his character, and, as such, he requests that

      we revise his sentence downward. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration in original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);

      Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

      trial court’s recognition or non-recognition of aggravators and mitigators as an

      initial guide to determining whether the sentence imposed was inappropriate.

      Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

      defendant must persuade the appellate court that his or her sentence has met

      th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

      (alteration original).


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

      (Ind. 2008). The principal role of appellate review is to attempt to “leaven the
      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015   Page 14 of 19
      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other facts that

      come to light in a given case.” Id. at 1224.


[8]   With regard to the nature of the offense, Grundy characterizes his crime as “a

      one-punch, one-kick moment of alcohol-influenced senselessness,” which, he

      argues, was “not unusually severe.” Appellant’s Br. at 14. Further, Grundy

      contends that his sentence is inappropriate because Tsai “made a full functional

      recovery.” Id. at 15. However, this is not how the trial court described

      Grundy’s attack. In contrast to Grundy’s assessment of his crime, the trial

      court called his crime a “devastating,” “unprovoked,” and “irrationally violent”

      attack on a “defenseless” victim. Tr. at 176. We agree with the trial court.

      Grundy viciously assailed Tsai and later downplayed the severity of his crime to

      his uncle. Tsai suffered permanent injuries and now feels unsafe in the United

      States. The nature of the offense supports Grundy’s sentence.


[9]   Grundy’s character also supports his sentence. As the trial court found,

      Grundy has a substantial criminal history, which includes several other

      convictions for battery. A number of his convictions are felonies, and,

      significantly, Grundy was on probation and drove on a suspended license when

      he attacked Tsai. Finally, Grundy attempted to manipulate Smith to keep her

      from testifying against him. Thus, we also hold that Grundy’s sentence is not

      inappropriate in light of his character.



      Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015   Page 15 of 19
                                 Issue Three: Habitual Offender Statute

[10]   Last, Grundy contends that the trial court erred when it sentenced him pursuant

       to the habitual offender statute in effect prior to July 1, 2014. He asserts that,

       instead, the trial court should have sentenced him pursuant to the amended

       habitual offender statute, which went into effect on July 1, 2014. Grundy’s

       challenge presents a question of law, which we review de novo. State v. Moss-

       Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).


[11]   Prior to July 1, 2014, Indiana’s habitual offender statute provided:

               The 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. However, the
               additional sentence may not exceed thirty (30) years.


       I.C. § 35-50-2-8(h) (2013). That statute now states:

               The court shall sentence a person found to be a habitual offender
               to an additional fixed term that is between:

                        six (6) years and twenty (20) years, for a person
                        convicted of murder or a Level 1 through Level 4
                        felony[.]


       Ind. Code § 35-50-2-8(i)(1) (2014). Had Grundy committed his offense after

       July 1, 2014, his aggravated battery conviction would be a Level 3 felony. See

       I.C. § 35-42-2-1.5 (2014).




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015    Page 16 of 19
[12]   When the legislature enacted the new criminal code, it did so alongside a

       general savings statute. That statute provides that the revisions to the criminal

       code do not affect “(1) penalties incurred; (2) crimes committed; or (3)

       proceedings begun” before those revisions took effect. I.C. § 1-1-5.5-21(a)

       (2014). Further, the savings clause specifies that “[t]he general assembly does

       not intend the doctrine of amelioration to apply.” 7 I.C. § 1-1-5.5-21(b) (2014).


[13]   Grundy contends that the general savings clause does not apply to habitual

       offender determinations and, thus, that he should have benefitted from the

       reduced enhancement provided for in the new habitual offender statute.

       Specifically, Grundy asserts that “habitual offender” is a status, not a separate

       crime, and that he obtained habitual offender status on August 26, 2014, after

       the effective date of the revisions to our criminal code. Therefore, he reasons:

       (1) “[t]here were no crimes committed prior to July 1, 2014”; (2) “[t]here were

       no habitual offender penalties incurred prior to July 1, 2014”; and (3) “[t]here

       were no proceedings begun on the habitual offender status because no

       proceedings can begin until the underlying felony conviction[, which was

       entered on August 13, 2014,] is in place.” Appellant’s Br. at 19.


[14]   Grundy concludes that “a person cannot have the status of being a habitual

       offender unless and until he has been convicted of the underlying felony.” Id.

       (emphasis in original). Consequently, because the trial court wished to



       7
         Where no savings clause exists, the doctrine of amelioration allows a court to apply an ameliorative
       amendment made to a sentencing statute “to all those sentenced after [the statute’s] effective date.” Hooker v.
       State, 799 N.E.2d 561, 575 (Ind. Ct. App. 2003), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015                            Page 17 of 19
       sentence him to the minimum enhancement allowed under the habitual

       offender statute, Grundy asserts that, had the court properly sentenced him

       under the revised statute, he would have only received a six-year enhancement

       and not the ten-year enhancement that he actually received.


[15]   While we acknowledge the creativity of Grundy’s argument, we disagree with

       his ultimate conclusion. Although Grundy is correct that a habitual offender

       status “is not a separate crime,” nevertheless, that status is attached to the

       underlying crime. See Baurer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007),

       trans. denied. As we stated in Baurer, a habitual offender finding is “an

       enhancement of the sentence for the underlying crime to which it is attached.” Id.

       (emphasis supplied). And it is well settled that “the sentencing statutes in effect

       at the time the defendant committed the offense govern the defendant’s

       sentence.” Marley, v State, 17 N.E.3d 335, 340 (Ind. Ct. App 2014), trans. denied.

       As a panel of this court recently stated, “[t]he time of a crime is selected as an

       act of free will by the offender, and, thus, it is the criminal, not the State, that

       chooses which statute applies to his or her offense.” Whittaker v. State, ___

       N.E.3d ___, 2015 WL 2405590, at *2 (Ind. Ct. App. May 20, 2015), not yet

       certified; see also Bell v. State, 654 N.E.2d 856, 858 (Ind. Ct. App. 1995).


[16]   Therefore, although Grundy was not adjudicated a habitual offender until

       August 26, 2014, his status as such is inextricably attached to the date he

       committed the underlying crime, which was on December 28, 2013, well before

       the effective date of the revisions to our criminal code. And, again, “the law in

       effect when the crime was committed controls sentencing.” Riffe v. State, 675

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015         Page 18 of 19
       N.E.2d 710, 712 (Ind. Ct. App. 1996), trans. denied. The legislature

       acknowledged as much when it enacted a general savings clause that states that

       the revisions to the criminal code do not apply to crimes committed before the

       effective date of those revisions, through the doctrine of amelioration or

       otherwise. See Marley, 17 N.E.3d at 340 (“It is abundantly clear . . . that the

       General Assembly intended the new criminal code to have no effect on criminal

       proceedings for offenses committed prior to the enactment of the new code.”),

       trans. denied. We, therefore, hold that the trial court did not err when it

       enhanced Grundy’s sentence pursuant to the habitual offender statute in effect

       prior to July 1, 2014.


                                                  Conclusion
[17]   In sum, we hold that sufficient evidence supports Grundy’s conviction for

       aggravated battery. Further, we hold that the trial court did not err when it

       sentenced Grundy or when it enhanced his sentence pursuant to the habitual

       offender statute in effect prior to July 1, 2014.


[18]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-665| June 30, 2015    Page 19 of 19
