MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 27 2017, 8:36 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Stephen Miller                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darryl L. Calvin,                                        June 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1701-CR-93
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1604-F4-30



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017          Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Darryl L. Calvin (Calvin), appeals his conviction for

      burglary, a Level 4 felony, Ind. Code § 35-43-2-1; and his adjudication as an

      habitual offender, I.C. § 35-50-2-8(a).


[2]   We affirm.


                                                    ISSUE
[3]   Calvin raises one issue for our review, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to support his

      adjudication as an habitual offender.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 7, 2016, the State charged Calvin with a Level 4 felony burglary. On

      August 19, 2016, the State filed a notice of intention to seek an habitual

      offender enhancement, alleging that Calvin had two prior unrelated Class 1

      felony residential burglary convictions from the State of Illinois. On November

      29 through November 30, 2016, the trial court conducted a bifurcated jury trial.

      At the conclusion of the evidence, the jury found Calvin guilty of the burglary

      charge. During the bifurcated hearing, the State presented evidence establishing

      that Calvin had been convicted in Illinois on December 30, 1992, of two Counts

      of Class 1 felony residential burglary and one Count of Class 2 felony attempted

      residential burglary. Calvin had also been convicted in Illinois on October 13,

      1999, of one Count of Class 1 felony residential burglary. At the close of the

      hearing, the jury returned a guilty verdict on the habitual offender charge. On
      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 2 of 8
      December 16, 2016, the trial court, finding no mitigating circumstances,

      imposed a six-year sentence on the burglary charge, enhanced by ten years for

      the habitual offender adjudication, for an aggregate sentence of sixteen years.


[5]   Calvin now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[6]   Calvin contends that the State presented insufficient evidence establishing that

      at least one of Calvin’s two prior unrelated felonies for purposes of the habitual

      offender statute is not a Level 6 felony or a Class D felony.


[7]   Our standard of review in claims of insufficient evidence is well settled: we

      neither reweigh the evidence nor judge the credibility of the witnesses, and we

      consider only the evidence most favorable to the verdict and the reasonable

      inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,

      993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial

      evidence of probative value supports it. Id. As an appellate court, we respect

      the jury’s exclusive province to weigh conflicting evidence. Id.


[8]   The habitual offender statute provides, in relevant part, that

              A person convicted of murder or of a Level 1 through Level 4
              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; and



      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 3 of 8
               (2) at least one (1) of the prior unrelated felonies is not a Level 6
               felony or a Class D felony.


       I.C. § 35-50-2-8(b).


       For purposes of the habitual offender statute, a Level 6 felony conviction means

       “a conviction, in any other jurisdiction at any time, with respect to which the

       convicted person might have been imprisoned for more than one (1) year.” I.C.

       § 35-50-2-1(a)(2).


[9]    To support its habitual offender enhancement, the State presented evidence that

       Calvin had been previously convicted in the State of Illinois. On December 30,

       1992, Calvin was convicted of a Class 1 felony residential burglary for which he

       received a thirteen-year sentence, and on October 13, 1999, Calvin was found

       guilty of a Class 1 felony residential burglary and received a twenty-eight-year

       sentence.


[10]   Calvin does not dispute the existence or application of the two Illinois

       convictions as predicates for the habitual offender enhancement; rather, Calvin

       contends that the State, by merely establishing that he had been imprisoned in

       both previous convictions for more than one year, only showed that both prior

       convictions were Level 6 felonies for purposes of the Indiana habitual offender

       statute. As such, Calvin maintains, the State failed its burden that “at least one

       of the prior unrelated felonies is not a Level 6 felony or a Class D felony.” See

       I.C. § 35-50-2-8(b).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 4 of 8
[11]   We agree that pursuant to I.C. § 35-50-2-8(b), both of Calvin’s Illinois’

       convictions are considered Level 6 or Class D felonies for habitual offender

       purposes because they are convictions from a court other than an Indiana court

       for which Calvin has been sentence to more than one year. However, as

       pointed out by the State, ending our evaluation there would lead to absurd

       results: “[u]nder [Calvin’s] argument, crimes of any level, including the most

       serious of crimes such as murder and rape, are treated as though they are of the

       lowest level of felony offenses simply because they occurred across the state

       line.” (Appellee’s Br. p. 14). Thus, by qualifying every out-of-state conviction

       at the highest as a Level 6 felony, an out-of-state criminal history is rendered

       meaningless for purposes of the habitual offender schedule. As such, out-of-

       state offenders would be treated substantially more favorable than in-state

       offenders. Accordingly, the Legislature could not have intended to treat all

       foreign convictions with a sentence of more than one year as a Level 6 felony.

       Glotzbach v. State, 783 N.E.2d 1221, 1227 (Ind. Ct. App. 2003) (the Legislature

       is presumed to have intended that the language used in the statute is applied

       logically and not bring about an unjust or absurd result).


[12]   In recent years, the habitual offender statute has undergone some significant

       amendments. See Johnson v. State, --- N.E.3d ---- (Ind. Ct. App. Apr. 19, 2017)

       (petition for transfer pending). Throughout these changes, the Legislature’s

       visible policy turned on two prongs: (1) reducing the impact of prior offenses of

       lower rank, and (2) reducing the impact of convictions entered quite some years

       ago. Id. “Put another way, the general thrust is that individuals who


       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 5 of 8
       committed lesser offenses and then stayed clean for long periods do not face

       enhancements of the same severity as under habitual statutes in their earlier

       form.” Id. Because the habitual offender statute differentiates the level of

       enhancement based on the seriousness of the offender’s prior offenses, the

       Legislature cannot have intended to treat all foreign convictions at a single,

       lowest level for Indiana’s habitual offender purposes.


[13]   In several other criminal statutes, the Indiana Legislature has treated out-of-

       state offenses similar to their Indiana counterparts when the crimes are

       equivalent. See, e.g., I.C. § 7.1-1-3-13.5 (conviction for operating while

       intoxicated); I.C. § 35-42-2-1.3(b)(1)(B) (defining a domestic battery as a Level 6

       felony); I.C. § 35-47-4-5(a)(1)(B) (defining serious violent felon). Continuing

       this comparison policy, we note that residential burglary under the Indiana and

       Illinois statutory schemes are equivalent crimes. Specifically, in Indiana

       burglary is defined as “a person who breaks and enters the building or structure

       of another person, with intent to commit a felony or theft in it, commits

       burglary, a Level 5 felony.” I.C. § 35-43-2-1. The offense becomes a Level 4

       felony if the building or structure is a dwelling. I.C. § 35-43-2-1(1). Illinois

       defines residential burglary as “when he or she knowingly and without

       authority enters or knowingly and without authority remains within the

       dwelling place of another, or any part thereof, with the intent to commit therein

       a felony or theft.” 720 ILCS 5/19-3(a).


[14]   Comparing Illinois’ residential burglary statute and its possible sentence with

       Indiana’s felony sentencing scheme qualifies Illinois’ residential burglary as

       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 6 of 8
       greater than a Level 6 felony conviction. Residential burglary is categorized as

       a Class 1 felony in the state of Illinois. 720 ILCS 5/19-3(b). The sentence of a

       Class 1 felony “shall be a determinate sentence of not less than 4 years and not

       more than 15 years.” 730 ILCS 5/5-4.5-30(a). The sentence of imprisonment

       “for an extended term Class 1 felony [] shall be a term not less than 15 years

       and not more than 30 years.” 730 ILCS 5/5-4.5-30(a). Therefore, the sentence

       for a Class 1 felony residential burglary is greater than the maximum sentence

       for an Indiana Level 6 felony conviction and more in line with a sentence for an

       Indiana Level 4 felony conviction. See I.C. § 35-50-2-7(b) (sentence for Level 6

       felony convictions is between six months and two-and-one-half years); I.C. §

       35-50-2-5.5 (a Level 4 felony incurs imprisonment for a fixed term of between

       two and twelve years).


[15]   Accordingly, a comparison of the Illinois residential burglary statute and the

       Indiana Level 4 burglary establishes that both offenses are equivalent in

       statutory elements and sentencing. As it is clear that Calvin’s predicate offenses

       for the habitual offender enhancement are more similar to a Level 4 felony than

       a Level 6 felony, “at least one of the prior unrelated felonies is not a Level 6

       felony or a Class D felony.” See I.C. § 35-50-2-8(b). Therefore, we conclude

       that the State presented sufficient evidence to support Calvin’s habitual offender

       enhancement.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 7 of 8
                                             CONCLUSION
[16]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Calvin’s adjudication as an habitual

       offender.


[17]   Affirmed.


[18]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-93 | June 27, 2017   Page 8 of 8
