                                                                          May 20 2015, 6:34 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                     Gregory F. Zoeller
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Plainfield, Indiana
                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael Whittaker,                                        May 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A01-1411-CR-506
              v.                                                Appeal from the Vigo Superior
                                                                Court.

      State of Indiana,                                         The Honorable David R. Bolk,
                                                                Judge.
      Appellee-Plaintiff.
                                                                Cause No. 84D03-1309-FD-2931




      Darden, Senior Judge


                                      Statement of the Case
[1]   Michael Whittaker appeals his sentence for his conviction of theft, a Class D

      felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an

      habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.




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                                                          Issue
[2]   Whittaker presents one issue for our review, which we restate as: whether the

      savings clause of the 2014 criminal code revision violates the Equal Privileges

      and Immunities Clause of the Indiana Constitution.


                                  Facts and Procedural History
[3]   In September 2013, the State charged Whittaker with theft and alleged that he

      was an habitual offender. Whittaker pleaded guilty to the theft charge and

      admitted being an habitual offender in September 2014. The following month

      the trial court sentenced Whittaker to 180 days on the theft conviction,

      enhanced by eighteen months for his admission to being an habitual offender,

      for an aggregate sentence of two years. It is from this sentence that Whittaker

      now appeals.


                                         Discussion and Decision
[4]   Whittaker contends that the savings clause of the 2014 criminal code revision

      violates his rights under the Equal Privileges and Immunities Clause of the
                                     1
      Indiana Constitution. Specifically, he argues that the savings clause




      1
       The State asserts that Whittaker failed to raise this issue before the trial court, and therefore it is waived.
      However, our Supreme Court has said that “[e]ven though the general rule is that failure to challenge the
      constitutionality of a statute at trial results in waiver of review on appeal, this Court as well as the Court of
      Appeals has long exercised its discretion to address the merits of a party’s constitutional claim
      notwithstanding waiver.” Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We exercise our
      discretion to do so now.

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      improperly prohibits the ameliorative sentencing statutes of the new criminal

      code to apply to certain offenders, including himself.


[5]   Generally, the sentencing statutes in effect at the time a defendant commits an

      offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340

      (Ind. Ct. App. 2014), trans denied. An exception to this general rule is the

      doctrine of amelioration. The doctrine of amelioration entitles a defendant,

      who is sentenced after the effective date of a statute providing for more lenient

      sentencing, to be sentenced pursuant to that statute rather than the sentencing

      statute in effect at the time of the commission or conviction of the crime. Id.

      However, the doctrine of amelioration does not apply where the legislature

      expressly states in a specific savings clause an intention that crimes committed

      before the effective date of the ameliorative amendment should be prosecuted

      under prior law. Id.


[6]   At the time Whittaker committed these offenses and was charged, the general

      crime of theft was a Class D felony, with a sentencing range of six months to

      three years. See Ind. Code §§ 35-43-4-2(a) (2009), 35-50-2-7(a) (2013). On July

      1, 2014, while Whittaker’s charges were pending, a significant revision of our

      criminal code went into effect resulting in, among other things, a change in

      terminology from “Class D felony” to “Level 6 felony” and a reduction of the

      sentencing range for a Class D/Level 6 felony to a term of six months to two

      and one-half years. See Ind. Code § 35-50-2-7(b) (2014). In addition, the

      general crime of theft was reduced to a Class A misdemeanor with a maximum

      sentence of one year. See Ind. Code §§ 35-43-4-2(a) (2014), 35-50-3-2 (1977).

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      At the same time, the General Assembly enacted the following specific savings

      clause:


              (a) [The new criminal code] does not affect:
              (1) penalties incurred;
              (2) crimes committed; or
              (3) proceedings begun;
              before the effective date of [the new criminal code sections].
              Those penalties, crimes, and proceedings continue and shall be
              imposed and enforced under prior law as if [the new criminal
              code] had not been enacted.
              (b) The general assembly does not intend the doctrine of
              amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to
              apply to any SECTION [of the new criminal code].


      Ind. Code § 1-1-5.5-21 (2014). Recently, a panel of this Court remarked, “[i]t is

      abundantly clear from these statutes that the General Assembly intended the

      new criminal code to have no effect on criminal proceedings for offenses

      committed prior to the enactment of the new code.” Marley, 17 N.E.3d at 340.


[7]   Whittaker challenges the constitutionality of this savings clause under the Equal

      Privileges and Immunities Clause of the Indiana Constitution. When the

      constitutionality of a statute is challenged, we begin with the presumption that

      the statute is constitutional. Bennett v. State, 801 N.E.2d 170, 173 (Ind. Ct. App.

      2003). The party challenging the statute labors under a heavy burden to show

      that it is unconstitutional. Id. at 173-74. All reasonable doubts must be

      resolved in favor of the statute’s constitutionality. Id. at 174.


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[8]    The Equal Privileges and Immunities Clause states that “[t]he General

       Assembly shall not grant to any citizen, or class of citizens, privileges or

       immunities, which, upon the same terms, shall not equally belong to all

       citizens.” IND. CONST. art. I, §23. In Collins v. Day, our Supreme Court

       concluded that Section 23 imposes two requirements on statutes that result in

       disparate treatment to differing classes of people: “First, the disparate treatment

       accorded by the legislation must be reasonably related to inherent

       characteristics which distinguish the unequally treated classes. Second, the

       preferential treatment must be uniformly applicable and equally available to all

       persons similarly situated.” 644 N.E.2d 72, 80 (Ind. 1994). In determining

       whether a statute violates Section 23, we accord substantial deference to

       legislative discretion. Id.


[9]    Whittaker argues that the savings clause unconstitutionally created two classes

       of offenders: those who committed their offenses before the new criminal code

       went into effect on July 1, 2014 but were sentenced after that date and those

       who committed their offenses after the July 1, 2014 effective date. He

       maintains that the date of the offense is not reasonably related to any inherent

       characteristic that distinguishes the two classes.


[10]   Five years after establishing the two-step analysis in Collins, our Supreme Court

       again dealt with Section 23 in Rondon v. State, 711 N.E.2d 506 (Ind. 1999).

       There, Rondon’s argument failed under the first prong of the Collins analysis.

       However, the court determined that even if Rondon had prevailed under the

       first prong, his argument would fail under the second prong because

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       “[a]mendments to a law that are coupled with a savings clause do not create

       two similarly situated groups of people.” Rondon, 711 N.E.2d at 513.

       “‘Criminal statutes apply exclusively to one class of people, those who violate

       the law, and they relate to the specific point in time that a violation occurs.’”

       Id. (quoting Rivera v. State, 179 Ind. App. 295, 385 N.E.2d 455, 457 (1979)).

       Therefore, upon alteration of the criminal law, individuals who subsequently

       commit an offense are not similarly situated and cannot be equated to those

       who had previously committed an offense. Rondon, 711 N.E.2d at 513. “[T]he

       time of a crime is selected as an act of free will by the offender,” and, thus, it is

       the criminal, not the State, that chooses which statute applies to his or her

       offense. Id. The court further noted it had previously determined that a change

       in penal statutes which applies only to those who commit their crimes after its

       effective date does not violate one’s equal protection rights. Id. n.7 (citing State

       v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994); Vicory v. State, 272 Ind. 683, 400

       N.E.2d 1380, 1381-83 (1980)).


[11]   Similarly, we need not discuss whether Indiana Code section 1-1-5.5-21 passes

       the first prong of the Collins analysis because it clearly fails on the second prong.

       Whittaker, in an act of free will, selected his offense date as August 31, 2013,

       thereby choosing to commit theft as a Class D felony subject to a sentence of six

       months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing

       so, he differentiated himself from those offenders who committed the offense of

       theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to




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       those defendants who committed offenses after July 1, 2014, and, therefore, he

       has no viable equal privileges and immunities claim.


                                                 Conclusion
[12]   For the reasons stated, we conclude that the savings clause of the 2014 criminal

       code revision does not violate the Equal Privileges and Immunities Clause of

       the Indiana Constitution.


[13]   Affirmed.


[14]   Vaidik, C.J., and May, J., concur.




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