MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jan 16 2018, 10:01 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
Ronald J. Moore                                          Curtis T. Hill, Jr.
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Stanley,                                            January 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A04-1708-CR-1790
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1608-F6-359



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018            Page 1 of 6
                                       Statement of the Case
[1]   John Stanley appeals his habitual offender adjudication following a bifurcated

      jury trial. Stanley raises one dispositive issue for our review, which we restate

      as whether Indiana law required the State to prove that Stanley was a habitual

      offender by showing that not more than ten years have elapsed between the

      time he was released from imprisonment, probation, or parole for each of the

      three prior felony offenses and his present offense.


[2]   We reverse and remand with instructions.


                                 Facts and Procedural History
[3]   On November 7, 2015, Stanley approached the home of Donna Snyder, a 71-

      year-old widow, and asked if she had any work she needed done on her home.

      Snyder decided to hire Stanley to coat her tin roof and install siding on her

      garage. Snyder and Stanley entered into a contract. Snyder paid Stanley a

      deposit of fifty dollars. Stanley worked on a section of her roof and then told

      Snyder that he needed two hundred dollars to buy more paint. After Snyder

      gave Stanley the money, Stanley left. Stanley never returned, and he never

      completed the work on her home. Snyder attempted to contact Stanley several

      times using the telephone number that he left on the contract, but she was

      unable to reach him. Snyder then called the police.


[4]   On August 31, 2016, the State charged Stanley with one count of home

      improvement fraud, as a Level 6 felony. On March 28, 2017, the State filed an

      amended habitual offender sentencing enhancement. The trial court held a

      Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018   Page 2 of 6
      bifurcated jury trial on April 4 and 5. After the first phase of the trial, the jury

      found him guilty as charged, and the trial court entered judgment of conviction

      accordingly.1


[5]   During the second phase of the trial, the State presented evidence that Stanley

      had been convicted of four prior unrelated felonies: home improvement fraud,

      as a Class C felony, in 1999; home improvement fraud, as a Class D felony, in

      2004; theft, as a Class D felony, in 2004; and home improvement fraud, as a

      Class D felony, in 2011.


[6]   After the State presented its evidence during the second phase of the trial,

      Stanley moved for a judgment on the evidence on the grounds that the State’s

      evidence did not show that he had been released from his sentences for all three

      of the required prior unrelated felonies within the last ten years, which the trial

      court denied. The jury found, and the trial court adjudicated, Stanley to be a

      habitual offender. The trial court sentenced Stanley to a sentence of two and

      one-half years in the Indiana Department of Correction for the conviction for

      home improvement fraud, which the court enhanced by five and one-half years

      under the habitual offender statute. This appeal ensued.




      1
          Stanley does not challenge his conviction for home improvement fraud, as a Level 6 felony.


      Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018          Page 3 of 6
                                     Discussion and Decision
[7]   Stanley asks us to interpret Indiana’s habitual offender statute. Indiana’s

      habitual offender statute at the time Stanley committed the present offense

      provided as follows:


              (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; and


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


                       (A) Level 5 felony;


                       (B) Level 6 felony;


                       (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.




      Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018   Page 4 of 6
       Ind. Code § 35-50-2-8 (2015).2


[8]    Stanley contends that, in order for the State to prove that a person is a habitual

       offender under that statute, not more than ten years can have elapsed between a

       person’s release from his sentence for each of the three required prior felony

       convictions and the present offense. The State asserts that the statute only

       requires an offender to have been released from his sentence in the last ten years

       for one of those prior felonies.


[9]    The Indiana Supreme Court recently resolved this issue in Johnson v. State, ---

       N.E.3d---, No. 32S05-1707-CR-469, 2017 WL 6523525 (Ind. Dec. 21, 2017).3

       In that case, our Supreme Court held that “each lower-level felony—namely a

       Level 5, Level 6, Class C, or Class D felony—the State uses to establish

       subsection 8(d)(1) must meet the ten-year requirement found in subsection

       8(d)(2).” Id. at *2.


[10]   Here, the jury found that Stanley had been convicted of three prior unrelated

       felonies: home improvement fraud, as a Class C felony, in 1999; home

       improvement fraud, as a Class D felony, in 2004; and home improvement



       2
         The Indiana General Assembly has since amended the habitual offender statute. The statute now provides
       that, if the person is alleged to have committed a prior unrelated Level 5 felony, Level 6 felony, Class C
       felony, or 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) for at least one (1) of the three (3) prior
       unrelated felonies and the time the person committed the current offense.” I.C. § 35-50-2-8(d) (2017) (emphasis
       added). However, there is no dispute that the 2015 version applies to Stanley.
       3
         The trial court held the jury trial on April 4 and 5, 2017. The Indiana Supreme Court decided Johnson v.
       State on December 21, 2017, while this case was on appeal. As such, neither the parties nor the trial court
       had the guidance of the Johnson opinion on the habitual offender statute during the trial proceedings.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018               Page 5 of 6
       fraud, as a Class D felony, in 2011. All three of those felonies were lower-level

       felonies. As such, based on our Supreme Court’s holding in Johnson, the State

       was required to prove that not more than ten years have elapsed between

       Stanley’s release from imprisonment, probation, or parole for all three of those

       prior felony offenses and the present offense. Id.


[11]   Stanley contends, and the State does not disagree, that “[t]here is no dispute”

       that Stanley was released from imprisonment, probation, or parole for his

       conviction of home improvement fraud in 1999 “more than ten (10) years prior

       to November 7, 2015.” Appellant’s Br. at 11. And our review of the record on

       appeal does not show that the State presented evidence of Stanley’s release

       dates to the jury. Therefore, the State did not prove that he was released from

       his sentence for all three prior unrelated felonies within ten years of the current

       offense, as required by our Supreme Court’s interpretation of the habitual

       offender statute in Johnson. Thus, we reverse Stanley’s habitual offender

       enhancement and remand for a retrial on that enhancement. See Calvin v. State,

       ---N.E.3d---, No. 02S03-1709-CR-611, 2017 WL 6524663 (Ind. Dec. 21, 2017)

       (“‘[R]etrial on a sentencing enhancement based on a prior conviction is

       permitted even where the enhancement is reversed because of insufficient

       evidence.’” Id. at *4 (quoting Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012))).


[12]   Reversed and remanded with instructions.


       Mathias, J., and Barnes, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 89A04-1708-CR-1790 | January 16, 2018   Page 6 of 6
