                                                                       FILED
                                                                  Apr 19 2017, 8:05 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brian J. Johnson                                           Curtis T. Hill, Jr.
      Danville, Indiana                                          Attorney General of Indiana
                                                                 Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Matthew L. Johnson,                                        April 19, 2017

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 32A05-1604-CR-703
              v.                                                 Appeal from Hendricks Superior
                                                                 Court.
                                                                 The Honorable Mark A. Smith,
      State of Indiana,                                          Judge.
      Appellee-Plaintiff.                                        Cause Nos. 32D04-1508-F2-18,
                                                                 32D04-1507-F4-18




      Shepard, Senior Judge

[1]   New legislation limits the use of lower-level felony convictions in determining

      whether a new crime can be sentenced under the habitual offender scheme. We

      apply our best reading of these recent amendments to the case of appellant

      Matthew L. Johnson.




      Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017                    Page 1 of 8
                                Facts and Procedural History
[2]   Johnson brings this interlocutory appeal from the trial court’s order denying his

      objection to habitual felony offender enhancement charges. The State has

      charged Johnson under two cause numbers. One case alleges seven felonies

      that range from Level 2 to Level 6. The other alleges three felonies, ranging

      from Level 4 to Level 6. The State filed identical habitual offender allegations

      in each cause. The habitual allegation was that Johnson had been convicted of

      Class D felonies in 2001, 2005, 2006, and 2008. Johnson objected to the

      habitual counts on grounds that under new legislation all lower-level felonies

      must have occurred during the last ten years. The trial court overruled his

      objection, and certified this new question of criminal law for interlocutory

      appeal.


                                                    Analysis
[3]   This novel sentencing question requires statutory interpretation, and as such

      presents a question of law reviewed de novo. Sloan v. State, 947 N.E.2d 917

      (Ind. 2011). The primary goal of statutory interpretation is to effectuate

      legislative intent. Allen v. Allen, 54 N.E.3d 344 (Ind. 2016). In criminal cases,

      where we are attempting to fulfill legislative intent, we also incorporate the rule

      of lenity—interpreting the statute in the defendant’s favor to the extent the

      language can provide such support. Day v. State, 57 N.E.3d 809 (Ind. 2016).




      Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017     Page 2 of 8
[4]   Indiana’s provisions on enhancing standard sentences for felonies have evolved

      over time from a statute that was both strict and simple, to the versions before

      us in this case.


[5]   The original version of the habitual charge said rather straightforwardly:

              The state may seek to have a person sentenced as an habitual
              offender for any felony by alleging, on a page separate from the
              rest of the charging instrument, that the person has accumulated
              two (2) prior unrelated felony convictions. A person who is
              found to be an habitual offender shall be imprisoned for an
              additional fixed term of thirty (30) years, to be added to the fixed
              term of imprisonment imposed under section 3, 4, 5, 6, or 7 of
              this chapter. Ind. Code § 35-50-2-8; P.L. 340-1977, SEC. 121.
[6]   Our supreme court resolved a challenge to the definition of “unrelated,”

      making clear in Erickson v. State, “The term ‘unrelated felony’ does not mean a

      felony of unlike kind, but [rather] not related to the instant felony in the sense

      that it is not connected to it as part of the res gestae of the instant crime.” 438

      N.E.2d 269, 273 (Ind. 1982). If so, the trial court was directed to add a flat

      thirty years to whatever sentence it imposed for the current crime.


[7]   Subsequent versions of the habitual offender law authorized trial courts to add

      fewer than the thirty-year standard term. Beginning with Public Law 210-1980,

      SEC. 1, courts were given discretion to reduce the thirty-year habitual offender

      term by up to twenty-five years if ten years or more had elapsed since the

      offender was discharged from probation, imprisonment, or parole for the last

      prior unrelated felony conviction and the date he committed the instant felony

      offense.

      Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017       Page 3 of 8
[8]    Later, in 1985, the statute was amended to provide further deductions from the

       flat thirty-year enhancement. Public Law 328-1985, SEC. 2, amended the

       statute to provide that if at least one of the prior unrelated offenses was a Class

       D felony, then the trial court could subtract up to ten years from the additional

       fixed term. If the instant offense for which the defendant was being sentenced

       was also a Class D, then the court was permitted to subtract up to twenty years

       from the additional fixed term. Id. However, if the offender was found to be an

       habitual offender, the court was required to sentence the offender to at least an

       additional fixed term of five years. Id. Additional amendments to the statute in

       Public Law 1-1990, SEC. 353, led to the same sentencing result.


[9]    Further amendment led to capping the habitual add-on at a proportion of the

       maximum sentence for which the instant felony could result. For instance,

       Public Law 165-1993, SEC. 13 provided that the sentence for an habitual

       offender finding would be “not less than the presumptive sentence for the

       underlying offense nor more than three (3) times the presumptive sentence for

       the underlying offense. However, the additional sentence may not exceed thirty
                      1
       (30) years.”


[10]   The most recent amendments likewise reflect a continuation of the policy trend

       evidenced in the changes we have just mentioned. In general, lower level prior




       1
         In contrast, nonetheless, the statute was amended in Public Law 140-1994, SEC 14., to include a provision
       for life imprisonment for those defendants found to be violent habitual criminals for committing certain
       statutorily defined offenses, comprising the underlying offense and the prior unrelated offenses. That
       provision of the statute was later deleted. P.L. 306-1995, SEC.1.

       Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017                         Page 4 of 8
       felonies are less forceful in habitual calculation. And, pertinent to this case,

       there are time limits on how distant they can be from the instant offense.


[11]   The current rule for Murder and Level 1-4 felonies, for example, is that a

       defendant is an habitual offender if the State proves beyond a reasonable doubt

       that the offender has been convicted of two prior unrelated felonies and at least

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

       Ind. Code § 35-50-2-8 (2015).


[12]   For Level 2 to Level 4 felony offenses, the State must prove beyond a

       reasonable doubt that the person has been convicted of two prior unrelated

       felonies of which at least one is not a Level 6 or Class D felony. Similarly, for a

       Level 5 felony, the State must prove beyond a reasonable doubt that the person

       has been convicted of two prior unrelated felonies, at least one of which is not a

       Level 6 or Class D felony; however, if one of the alleged prior unrelated felonies

       is a Level 5 or 6, or Class C or D felony, not more than ten years must 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. Ind. Code § 35-50-2-8(c).


[13]   A number of Johnson’s felony offenses are at Level 6, and the version of the

       statute that was in effect at the time of the July 31, 2015 offenses read as

       follows:

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


       Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017       Page 5 of 8
                (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.
                                                    2
       Ind. Code § 35-50-2-8 (d) (2015). The only difference between the prior

       version of the statute, applicable to the May 27, 2015 offenses, and the version

       applicable to the July 31, 2015 offenses, is the replacement of “a Level 6

       offense” for “a felony offense.” Compare Ind. Code § 35-50-2-8(d) (2014) with

       Ind. Code § 35-50-2-8(d) (2015).


[14]   Johnson’s position has been that the statute requires that each lower level

       unrelated felony conviction meet the ten-year requirement.




       2
         Here, there was an amendment to the habitual offender enhancement statute effective July 1, 2015.
       Johnson’s underlying offenses straddle that date, although the amendment does not appear to affect our
       analysis. An habitual offender finding determines an offender’s status, which is attached to the underlying
       crime. Grundy v. State, 38 N.E.3d 675 (Ind. Ct. App. 2015), trans. denied. An habitual offender finding is “an
       enhancement of the sentence for the underlying crime to which it is attached.” Bauer v. State, 875 N.E.2d
       744, 747 (Ind. Ct. App. 2007), trans. denied. Further, 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 (Ind. Ct.
       App. 2014), trans. denied.

       Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017                           Page 6 of 8
[15]   The State has argued that only one of the prior unrelated felony convictions

       need fall within the ten-year period in order to proceed with all of the

       allegations of the habitual offender determination. It focuses on the statutory

       language of (d)(2)—if the person is alleged to have committed a prior unrelated

       Level 5 or 6, or Class C or D felony. Appellant’s App. p. 61. The State has

       further argued that the statute “only requires that a conviction (or released from
                                                                                                           3
       imprisonment probation or parole) be within in[sic] ten (10) years.” Id.


[16]   The actual words of the statute do not actually mandate either of these

       outcomes in any visible way.


[17]   We conclude that the long-term visible policy has turned on two kinds of

       changes: (1) reducing the impact of prior offenses of lower rank, and (2)

       reducing the impact of convictions entered quite some years ago. Put another

       way, the general thrust is that individuals who committed lesser offenses and

       then stayed clean for long periods do not face enhancements of the same
                                                                                    4
       severity as under habitual statutes in their earlier form.




       3
         On appeal, the State reframes the argument as the statute only requires “one of the lower level unrelated
       felonies to have occurred—or be subject to prison, probation, or parole—within the last ten years.”
       Appellee’s Br. p. 8.
       4
         While the sentencing law in effect at the time of the commission of the crime governs the outcome of a
       sentencing issue, our legislature has just recently voted to amend the habitual statute in a way that actually
       could explicitly alter the code to permit limited use of older convictions. The Governor signed the bill on
       March 29, 2017, with an effective date of July 1, 2017. P.L. 12-2017 (H.E.A. 1064). Of course, we resolve
       Johnson’s appeal under the plain language of the current statute.

       Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017                             Page 7 of 8
[18]   Thus, consistent with this apparent trend in legislative policy and with the rule

       of lenity, we interpret the statute to work as follows: convictions from which

       the offender was released more than ten years before the current offense do not

       count for habitual purposes under section 8(d). Those from which the offender

       was released less than ten years before the current offense do count for habitual

       purposes.


[19]   It is apparent that one or another of the offenses alleged in the habitual count

       are not available for one or more of Johnson’s ten current felonies. Thus, as

       this matter returns to the trial court, it will be necessary to examine each of the

       priors as eligible for habitual purposes as respects each of the ten current

       charges. This analysis will also necessitate an examination of an issue already

       recognized by the trial court—the dates upon which Johnson was released from

       each of his prior offenses.


                                                  Conclusion
[20]   We reverse the trial court’s order overruling Johnson’s objection to the habitual

       offender enhancement charges and remand for review consistent with this

       opinion.


[21]   Reversed and remanded.


       Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 32A05-1604-CR-703 | April 19, 2017    Page 8 of 8
