MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Apr 20 2018, 10:52 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General

                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Lee Conrad,                                        April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1709-CR-2036
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         79D01-1703-F5-30
                                                         79D01-1109-FA-23



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018              Page 1 of 7
                                             Case Summary
[1]   Brian Lee Conrad was convicted of level 5 felony narcotics possession and

      adjudicated a habitual offender. He appeals, challenging the sufficiency of the

      evidence to support the habitual offender finding. Finding the evidence

      sufficient, we affirm.


                                  Facts and Procedural History
[2]   On March 16, 2017, Conrad was a passenger in a vehicle with his wife and a

      friend, Ryan Smith, who was driving. Police pulled them over for speeding,

      and just before Smith’s vehicle came to a stop, Conrad instructed his wife to

      stash some heroin in her vagina “and make sure that it was in there good.” Tr.

      Vol. 2 at 31-32. The officer discovered that Smith was driving on a suspended

      license, and a nearby canine unit was summoned to the scene. The canine

      officer alerted officers to the presence of drugs. On the passenger floorboard,

      the officers found a corner of a baggie containing a white residue later

      determined to be heroin. Conrad’s wife retrieved the heroin from her vagina

      and gave it to one of the officers.


[3]   The State charged Conrad with level 5 felony possession of a narcotic (by a

      person with a prior conviction for narcotics possession) and a habitual offender

      count. A jury found him guilty of the underlying level 6 felony narcotics

      possession, and he waived a jury trial for the second phase of trial. The State

      introduced his prior conviction in Wisconsin for heroin possession, and the trial

      court found him guilty of narcotics possession as a level 5 felony. During the


      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018   Page 2 of 7
      habitual offender phase, the State introduced evidence of Conrad’s 2012 class B

      felony conviction, his 2006 class D felony conviction, for which he received a

      three-year executed sentence, and two 2004 class C felony convictions, for

      which he received concurrent six-year sentences, with four years executed and

      two years suspended to probation. The trial court took the matter under

      advisement and later issued an order adjudicating Conrad a habitual offender.

      The order referenced Conrad’s prior class B, D, and C felony convictions but

      did not specify which convictions the court relied on for the habitual offender

      finding. Appellant’s App. Vol. 2 at 53-55. The trial court sentenced Conrad to

      five years for narcotics possession, with a three-year habitual offender

      enhancement, and revoked his probation in his class B felony case. Conrad

      now appeals the habitual offender finding. Additional facts will be provided as

      necessary.


                                     Discussion and Decision
[4]   Conrad challenges the sufficiency of the evidence to support his habitual

      offender adjudication. When reviewing a sufficiency challenge to a habitual

      offender adjudication, we neither reweigh evidence nor reassess witness

      credibility; rather, we examine only the evidence and reasonable inferences

      most favorable to the judgment and will affirm if substantial evidence of

      probative value supports the judgment. Woods v. State, 939 N.E.2d 676, 677

      (Ind. Ct. App. 2010), trans. denied (2011).


[5]   When Conrad committed the current level 5 felony offense, Indiana Code

      Section 35-50-2-8 read, in pertinent part,
      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018   Page 3 of 7
         (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;


         (2) at least one (1) of the prior unrelated felonies is not a Level 6
         felony or a Class D felony; and


         (3) if the person is alleged to have committed a prior unrelated:


         ….

         (C) Class C felony; or


         (D) Class D felony;


         not more than ten (10) years have elapsed between the time the
         person was released from imprisonment, probation, or parole
         (whichever is latest) and the time the person committed the
         current offense.[1]

         (d) A person convicted of a felony offense is a habitual offender if
         the state proves beyond a reasonable doubt that:


         (1) the person has been convicted of three (3) prior unrelated
         felonies;




1
  With respect to the ten-year limitation, the legislature has since amended Indiana Code Section 35-50-2-
8(c) to read, “not more than ten (10) years have elapsed between the time the person was released from
imprisonment, probation, or parole (whichever is latest) for at least one (1) of the two (2) prior unrelated
felonies and the time the person committed the current offense.”

Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018               Page 4 of 7
               (2) if the person is alleged to have committed a prior unrelated:

               ….

               (C) Class C felony; or


               (D) Class D felony;


               not more than ten (10) years have elapsed between the time the
               person was released from imprisonment, probation, or parole
               (whichever is latest) and the time the person committed the
               current offense.[2]


[6]   Relying on subsection 8(d), Conrad argues that the State was required to prove

      that he had accumulated three prior unrelated felonies, with the two lower-level

      felonies being subject to the ten-year limitation. However, Conrad’s underlying

      conviction in this case is a level 5 felony. This means that his habitual offender

      status is determined by applying subsection 8(c), which requires only two prior

      unrelated felony convictions, one of which was Conrad’s class B felony, which

      is not subject to the ten-year limitation. Thus, the State was required to

      establish only that he was still serving his sentence for one of his less serious

      offenses on March 16, 2007, which is ten years before he committed the current

      level 5 felony offense. Conrad does not challenge the sufficiency of evidence to

      support the use of his 2012 class B felony conviction as a predicate offense and


      2
        Indiana Code Section 35-50-2-8(d) has since been amended to read, “not more than ten (10) years have
      elapsed between the time the person was released from imprisonment, probation, or parole (whichever is
      latest) for at least one (1) of the three (3) prior unrelated offenses.” See Johnson v. State, 87 N.E.3d 471, 473
      (Ind. 2017) (interpreting the prior version of the statute as requiring that all, not merely one, of the lower level
      felony offenses used as predicate offenses had to meet the ten-year limitation).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018                   Page 5 of 7
      argues with respect to the remaining offenses that the record simply does not

      support a finding that he was still serving his sentence for his class C or D

      felony offenses as of March 16, 2007.


[7]   We find the record sufficient to support the use of Conrad’s class D felony as

      his second prior unrelated offense. On July 21, 2004, Conrad was sentenced to

      concurrent six-year sentences for his two class C felony offenses, with four years

      executed and two years suspended to probation. On July 26, 2006, Conrad

      agreed to plead guilty to the class D felony offense and to admit to violating his

      probation in his class C felony case. On September 27, 2006, Conrad was

      sentenced to three years for the class D felony offense, to be served consecutive

      to the probation revocation sentence imposed in his class C felony case, the

      length of which is not mentioned in the exhibits. The only reasonable

      inferences that can be drawn from these facts are that on March 16, 2007,

      which was less than six months after the sentencing date in his class D felony

      case, Conrad was either still serving his three-year sentence for his class D

      felony conviction or had not yet begun to serve it because he was still serving

      the probation revocation sentence in his class C felony case.3 The evidence was

      sufficient to support a finding that his release date for his class D felony




      3
        The presentence investigation report (“PSI”) definitively shows that Conrad was still serving his sentence
      for his class D felony conviction as late as November 2007. See Appellant’s App. Vol. 2 at 155 (probation
      revoked on November 13, 2007, and defendant sentenced to Department of Correction for two years). At
      the outset of the sentencing hearing, the trial court stated that it had found Conrad guilty of the underlying
      level 5 felony and the habitual offender count and asked Conrad whether any corrections needed to be made
      to his PSI. Conrad responded, “NO judge other than just on … the credit time” calculation for the current
      case. Tr. Vol. 2 at 205.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018               Page 6 of 7
      predicate offense was within ten years of the date he committed his current

      offense. As such, we find the evidence sufficient to support his adjudication as

      a habitual offender. Accordingly, we affirm.


[8]   Affirmed.



      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2036 | April 20, 2018   Page 7 of 7
