                                                                           FILED
                                                                      May 23 2019, 9:25 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
John Jay Lacey                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

John Jay Lacey,                                           May 23, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2623
        v.                                                Appeal from the Boone Superior
                                                          Court
State of Indiana,                                         The Honorable Matthew C. Kincaid,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          06D01-1606-F3-149



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019                               Page 1 of 6
                                              Case Summary
[1]   John Jay Lacey (“Lacey”) appeals, pro se, his thirteen-year sentence

      enhancement based upon habitual offender status. He raises three issues, which

      we consolidate and restate as whether there was sufficient evidence to support

      his habitual offender enhancement.


[2]   We reverse and remand with instructions.



                                Facts and Procedural History
[3]   On June 22, 2016, the State charged Lacey with aggravated battery, as a Level 3

      felony,1 and subsequently filed a notice also seeking a habitual offender

      enhancement,2 based on an October 16, 2012, Florida conviction for battery on

      an officer, as a Level 3 felony,3 and a March 2, 2014, Florida conviction for

      aggravated battery, as a Level 3 felony.4 On November 18, 2016, Lacey and the

      State entered into a plea agreement under which Lacey pled guilty to

      aggravated battery and admitted his status as a habitual offender. The plea

      agreement left sentencing to the trial court’s discretion and agreed to a cap of

      fourteen years on the habitual offender enhancement.




      1
          Ind. Code § 35-42-2-1.5 (2016).
      2
          I.C. § 35-50-2-8.
      3
          Fla. Stat. § 784.07(2)(b) (2012).
      4
          Fla. Stat. § 784.021(2) (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019            Page 2 of 6
[4]   On February 16, 2017, the trial court sentenced Lacey to fifteen years for

      aggravated battery, enhanced by thirteen years for being a habitual offender.

      Lacey filed a motion to correct erroneous sentence pursuant to Indiana Code

      Section 35-38-1-15 on August 15, 2018, and the trial court denied that motion

      on October 11. This appeal ensued.



                                 Discussion and Decision
                         Motion to Correct Sentence/Appeal
[5]   As an initial matter, we note that the State does not challenge Lacey’s right to

      seek a correction of the judgment imposing the habitual offender enhancement

      under Indiana Code Section 35-38-1-15. That statute permits the filing of a

      motion to correct sentence when a sentence is defective on its face in light of the

      statutory authority. See Woodcox v. State, 30 N.E.3d 748, 751 (Ind. Ct. App.

      2015) (citing Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)). “A sentence is

      defective on its face if it violates express statutory authority at the time the

      sentence is pronounced, as when the sentence falls outside the statutory

      parameters for the particular offense or is based on an erroneous interpretation

      of a penalty provision.” Id. (quotations and citation omitted). Lacey alleges

      that his sentence violated express statutory authority at the time the sentence

      was pronounced; therefore, his motion to correct sentence pursuant to Indiana

      Code Section 35-38-1-15 was appropriate.


[6]   Nor does the State challenge Lacey’s right to appeal his sentence, despite his

      plea agreement waiving that right. Because Lacey’s plea agreement did not fix
      Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019             Page 3 of 6
      his sentence, he may appeal the merits of the sentence. Creech v. State, 887

      N.E.2d 73, 74 (Ind. 2008) (also noting “[t]he same is true even when the

      defendant agrees to a sentencing cap or range”); see also Haddock v. State, 112

      N.E.3d 763, 767 (Ind. Ct. App. 2018) (citing Crider v. State, 984 N.E.2d 618, 623

      (Ind. 2013)) (“[I]f a sentence imposed is illegal, and the defendant does not

      specifically agree to the sentence, the waiver-of-appeal provision [in the plea

      agreement] is invalid.”), trans. denied. Thus, this appeal is properly before us.


                              Habitual Offender Enhancement
[7]   Lacey contends that the habitual offender enhancement was issued in error

      because his two prior unrelated out-of-state felonies were both the equivalent of

      Level 6 felonies.5 To the extent this issue requires us to interpret the meaning of

      the habitual offender statutes, our review is de novo. Calvin v. State, 87 N.E.3d

      474, 476 (Ind. 2017). “We then determine whether, under that interpretation,

      sufficient evidence supports [the defendant’s] habitual offender enhancement.”

      Id. We view the evidence in the light most favorable to the judgment, and we

      will affirm that judgment unless we cannot find substantial evidence of

      probative value to support it. E.g., Pierce v. State, 29 N.E.3d 1258, 1265 (Ind.

      2015).




      5
        In his reply brief, Lacey also contends—for the first time—that he did not enter into his plea agreement
      willingly and intelligibly and that he was denied effective assistance of trial counsel. However, those
      arguments are waived as they may not be brought for the first time in a reply brief. See, e.g., Monroe Guar. Ins.
      Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).

      Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019                                      Page 4 of 6
[8]   At the time of Lacey’s sentencing6—i.e., February 16, 2017—Indiana law

      provided that a person convicted of a Level 1 through Level 4 felony was a

      habitual offender if “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)(2) (2017). A “Level 6 felony

      conviction” was defined to include a conviction in any jurisdiction other than

      Indiana “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) (2017). This

      court and our state Supreme Court have, since at least 1991, consistently

      interpreted the plain language of the latter statute as meaning “all non-Indiana

      felonies count as Level 6 felonies.” Calvin v. State, 87 N.E.3d at 479 (citing

      Rowold v. State, 629 N.E.2d 1285, 1287 (Ind. Ct. App. 1994); Cain v. State, 594

      N.E.2d 835, 842-43 (Ind. Ct. App. 1992), clarified on reh’g, 599 N.E.2d 625 (Ind.

      Ct. App. 1992); Johnson v. State, 575 N.E.2d 282, 285 (Ind. Ct. App. 1991),

      trans. denied.)7


[9]   Both of Lacey’s prior, unrelated felony convictions in Florida were classified as

      felonies “of the third degree,” Fla. State § 784.07(2)(b) (2012), Fla. State §

      784.021(2) (2014), for which Lacey could have received a term of imprisonment



      6
       “The sentencing statute in effect at the time a crime is committed governs the sentence for that crime.”
      Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008).
      7
        As the State notes, in 2018 the legislature amended the definition of a “Level 6 felony” for purposes of the
      habitual offender enhancement. Effective March 8, 2018, an out-of-state Level 6 felony 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 but less than two and one-half (2 ½ ) years.” I.C. § 35-50-2-1(a)(2) (2018); P.L. 20-
      2018, SEC. 1, eff. March 8, 2018. However, that amendment is irrelevant to the present case where the crime
      underlying the habitual offender enhancement was committed in June of 2016, i.e., almost two years before
      the amendment’s effective date. See, e.g., Harris, 897 N.E.2d at 928-29.

      Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019                                    Page 5 of 6
       “not exceeding 5 years,” Fla. Stat. § 775.082(d) (2012), Fla. Stat. § 775.082(e)

       (2014). Because Lacey “might have been imprisoned for more than one (1)

       year” for each of the Florida convictions, both of those convictions were treated

       as Level 6 felony convictions under Indiana law in 2017. I.C. § 35-50-2-1(a)(2)

       (2017). Therefore, those Florida convictions could not support a habitual

       offender enhancement. I.C. § 35-50-2-8(b)(2) (2017). There was insufficient

       evidence to support the thirteen-year habitual offender enhancement.8



                                                 Conclusion
[10]   We reverse the judgment of the trial court on the habitual offender finding and

       remand to the trial court for resentencing consistent with this opinion.


[11]   Reversed and remanded with instructions.


       Riley, J., and Pyle, J., concur.




       8
         Lacey also purports to challenge the habitual offender enhancement as an “improper” “stacked” sentence
       under “the Criminal Justice Reform Bill of December 2018.” Lacey’s Br. at 14. We do not address that
       claim as it is waived for failure to provide citation to any authority or make cogent argument as required
       under Indiana Appellate Rule 46(A)(8). Waiver notwithstanding, given our holding, it is not necessary to
       address that claim.

       Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019                                 Page 6 of 6
