                                                                            FILED
                                                                       Jan 15 2019, 8:55 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark A. Kiesler                                            Curtis T. Hill, Jr.
Kiesler Law Office                                         Attorney General of Indiana
New Albany, Indiana                                        Lyubov Gore
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Arnold Tuell,                                              January 15, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1186
        v.                                                 Appeal from the
                                                           Orange Circuit Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        Steven L. Owen, Judge
                                                           Trial Court Cause No.
                                                           59C01-1711-F5-1259



Kirsch, Judge




Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019                            Page 1 of 10
[1]   Arnold Tuell (“Tuell”) was charged with operating a motor vehicle after

      forfeiture of license for life,1 a Level 5 felony, and with being a habitual

      offender.2 Tuell raises the following issue in this discretionary interlocutory

      appeal, whether the trial court erred in denying his motion to dismiss the

      habitual offender charge, which he claims is impermissible because operating a

      motor vehicle after forfeiture of license for life is a progressive penalty statute

      that cannot be further enhanced by the general habitual offender statute.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On the evening of November 25, 2017, Indiana State Police Trooper Noah

      Ewing (“Trooper Ewing”) was driving on State Road 56 and decided to run the

      plate of the vehicle in front of him. Appellant’s App. Vol. II at 10. He learned

      that Bureau of Motor Vehicle (“BMV”) records indicated that the registered

      owner, Tuell, was a habitual traffic violator for life. Id. As Trooper Ewing

      drove closer to the vehicle, he noticed that the driver was a male with dark hair,

      which matched information from the BMV records. Id. Trooper Ewing

      activated his emergency lights, and the vehicle stopped. As Trooper Ewing

      approached the vehicle, he noticed that the driver looked to be the same person

      depicted in Tuell’s BMV photo. Id. Tuell admitted to Trooper Ewing that 1)




      1
          See Ind. Code §§ 9-30-10-16, -17.
      2
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019           Page 2 of 10
      the car was his, 2) that he did not have a license, and 3) that he was a habitual

      traffic violator. Id.


[4]   Tuell was arrested and charged with Count 1, Level 5 felony operating a motor

      vehicle after forfeiture of license for life and Count 2, with being a habitual

      offender. Id. at 22. The habitual offender charging information listed the

      following prior convictions: 1) January 22, 2008 Daviess County conviction for

      operating a motor vehicle after forfeiture of license for life, a Class C felony; 2)

      October 12, 2004 Dubois County conviction for operating a motor vehicle after

      forfeiture of license for life, a Class C felony; 3) January 7, 2013 Orange County

      conviction for operating a motor vehicle after forfeiture of license for life, a

      Class C felony; 4) March 30, 2004 Orange County conviction for operating a

      vehicle as habitual traffic violator,3 a Class D felony; and 5) November 4, 1997

      Orange County conviction for child molesting, a Class B felony. Appellant’s

      App. Vol II at 22.


[5]   Tuell filed a motion to dismiss the habitual offender charge. Id. at 53-54. At

      the hearing on the motion, defense counsel argued that the habitual offender

      enhancement should be dismissed because Tuell was charged with operating a

      motor vehicle after forfeiture of license for life under a progressive penalty

      scheme, and a penalty under such a statute could not be further enhanced under




      3
       As discussed below, this is the conviction that makes Tuell eligible for Count 1, operating a motor vehicle
      after forfeiture of license for life, and his double enhancement arguments rest, in part, on the State’s possible
      use of this conviction to support its habitual offender allegation in Count 2.

      Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019                                  Page 3 of 10
the habitual offender statute. Tr. Vol. II at 11-13. In denying the motion, the

trial court concluded that the habitual offender charge would not create an

impermissible double enhancement. Specifically, it found and concluded as

follows:


        2. I.C. 35-5-2-8(e) sets forth the limitations on “double
        enhancement”:


        (e) The state may not seek to have a person sentenced as a
        habitual offender for a felony offense under this section if the
        current offense is a misdemeanor that is enhanced to a felony in
        the same proceeding as the habitual offender proceeding solely
        because the person had a prior unrelated conviction. . . .


        3. . . . Neither of these apply to this situation.


        4. [Tuell] cites Dye v. State, 972 N.E.2d 853 (Ind. 2012), aff’d on
        reh’g, 984 N.E.2d 625 (Ind. 2013), as authority that double
        enhancement is not permitted. In Dye, the court held that it was
        impermissible for the defendant’s unlawful possession of a
        firearm by a serious violent felon conviction to be enhanced
        further by the general habitual offender statute. On rehearing,
        the supreme court further clarified that the defendant’s habitual
        offender enhancement was vacated not merely because the
        serious violent felon statute, a progressive-penalty statute, and
        the general habitual offender enhancement were simultaneously
        applied, but more precisely because the past felonious conduct
        used as the basis for the habitual offender charge was a part of the
        same “uninterrupted transaction” on which the serious violent felon
        charge was based. Dye, 984 N.E.2d at 630.


        5. . . . Woodruff v. State, 80 N.E.3d 216 (Ind. Ct. App 2017)
        clarified . . . Dye. Dye does not stand for the proposition that

Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019           Page 4 of 10
              whenever any two enhancements are applied to an underlying
              conviction there is an impermissible double enhancement.
              Rather, Dye states that there is a double enhancement issue when
              more than one of the types of statutes that authorize
              enhancements for repeat offenders are applied to the same proof of an
              “uninterrupted transaction.” Therefore, double enhancement
              analysis is proper when the proof of previous criminal conduct is
              the basis of more than one enhancement.


      Appellant’s App. Vol. II at 56-58 (emphasis added).


[6]   Upon Tuell’s request, the trial court certified its ruling for discretionary

      appellate review, and on June 22, 2018, we granted Tuell’s motion for

      interlocutory appeal and accepted jurisdiction over this case. Id. at 83, 91.


                                      Discussion and Decision
[7]   Tuell contends that the trial court erred in denying his motion to dismiss the

      habitual offender charge, claiming it subjects him to an impermissible double

      enhancement. “We review a trial court’s ruling on a motion to dismiss a

      charging information for an abuse of discretion, which occurs only if a trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances.” Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014),

      trans. denied. Here, because the parties do not dispute the facts, we are

      presented with a question of law to which we apply a de novo standard of

      review. See Moss v. State, 6 N.E.3d 958, 960 (Ind. Ct. App. 2014). In

      interpreting a statute, the reviewing court heeds both what the statute “does not

      say” and what it “does say.” State v. Brown, 70 N.E.3d 331, 334 (Ind. 2017).


      Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019           Page 5 of 10
[8]   Tuell argues that allowing the State to proceed with the habitual offender

      charge subjects him to an impermissible double enhancement because he would

      be simultaneously subjected to two enhancing statutes, the progressive penalty

      statute of his operating a motor vehicle after forfeiture of license for life charge

      and the enhancement from the habitual offender charge. Tuell contends that

      there is no statutory authority for such a double enhancement, citing to Stanek v.

      State, 603 N.E.2d 152 (Ind. 1992). Appellant’s Br. at 10.


[9]   We look to our Supreme Court’s case in Dye v. State, 972 N.E.2d 853, 856-57

      (Ind. 2012) for guidance on this issue:


              It has long been established that double enhancements are not
              permissible unless there is explicit legislative direction
              authorizing them. E.g., Beldon v. State, 926 N.E.2d 480, 483-84
              (Ind. 2010); Breaston v. State, 907 N.E.2d 992, 995 (Ind. 2009);
              Mills v. State, 868 N.E.2d 446, 449 (Ind. 2007) . . . . Whether a
              particular double enhancement is permissible, therefore, is a
              matter of statutory interpretation. E.g., Nicoson v. State, 938
              N.E.2d 660, 663 (Ind. 2010).


              There are three types of statutes authorizing enhanced sentences
              for recidivist offenders: the general habitual offender statute,
              specialized habitual offender statutes, and progressive-penalty
              statutes. [State v.] Downey, 770 N.E.2d [794,] 795-96 [(Ind.
              2012)]. The general habitual offender statute, Ind. Code § 35-50-
              2-8 (2008), authorizes a sentencing enhancement of up to 30
              years where the defendant has been convicted of three
              “unrelated” felonies. Downey, 770 N.E.2d at 795. . . .
              [P]rogressive-penalty statutes, which are the most specialized,
              elevate the level of an offense (with a correspondingly enhanced
              sentence) where the defendant previously has been convicted of a
              particular offense. Downey, 770 N.E.2d at 796 . . . Ind. Code §§
      Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019        Page 6 of 10
               9-30-10-16 & -17 (2010) (Class D felony driving while privileges
               are suspended elevated to Class C felony if defendant has prior
               conviction for driving while suspended) . . . . Double-
               enhancement issues arise where more than one of these statutes
               is applied to the defendant at the same time. See, e.g., Downey,
               770 N.E.2d at 795-98.


       Dye, 972 N.E.2d at 856-57.; see also Dugan v. State, 976 N.E.2d 1248, 1250 (Ind.

       Ct. App. 2012); Shepherd v. State, 985 N.E.2d 362, 363 (Ind. Ct. App. 2013).


[10]   Here, the underlying felony Tuell was charged with -- Level 5 felony operating

       a motor vehicle after forfeiture of license for life -- is a progressive penalty

       statute. Dye, 972 N.E.2d at 857. “The general rule is that, absent explicit

       legislative direction, a sentence imposed following conviction under a progressive

       penalty statute may not be increased further under either the general habitual

       offender statute or a specialized habitual offender statute.” Id. (emphasis in

       original).


[11]   Tuell rests much of his argument on Stanek, 603 N.E.2d at 152, which involved

       similar facts to the present case. There, Stanek was convicted of operating a

       motor vehicle after driving privileges are forfeited for life, a Class C felony, and

       with being a habitual offender. Id. at 153. While acknowledging that the

       habitual offender statute in effect at the time allowed the State to seek a habitual

       offender enhancement for “any felony,” Stanek construed the habitual offender

       statute and Article 12 of Title 9 – the then article on general penalty provisions

       for motor vehicle offenses -- to hold that the legislature did not intend that a

       conviction for a Class C felony under Article 12 to be subject to further

       Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019         Page 7 of 10
       enhancement under the general habitual offender statute because it

       characterized then Article 12 as a “discreet, separate, and independent habitual

       offender statute.” Id. at 153-54. Thus, the Supreme Court vacated Stanek’s

       habitual offender enhancement. Id. at 154. Tuell argues the same reasoning

       applies here and that this court should reverse the trial court’s denial of his

       motion to dismiss the habitual offender count.


[12]   However, while Tuell aptly observes that the facts in Stanek are like his case, he

       ignores the substantial evolution in double enhancement jurisprudence since

       Stanek was decided, both in case law and the habitual offender statute. As to

       caselaw, as noted above, many Indiana decisions have held that there is no

       double enhancement unless more than one of the statutes that authorize

       enhancements for repeat offenders are applied to the same felony or the same proof of

       an “uninterrupted transaction.” See; Mills, 868 N.E.2d at 452; Beldon, 926 N.E.2d

       at 483; and Woodruff, 80 N.E.3d at 218. Similar holdings can be found in

       Dugan, 976 N.E.2d at 1250 and Shepherd, 985 N.E.2d at 363. Thus, under this

       line of cases, there would be no impermissible double enhancement as long as

       the State does not use the 2004 Orange County conviction for operating a

       vehicle as habitual traffic violator as a predicate felony for Tuell’s habitual

       offender status. That offense has already been enhanced pursuant to a

       progressive penalty statute.


[13]   As to the habitual offender statute itself, the General Assembly has amended it

       several times since 1992, when Stanek was decided. Subsection (e) of the

       current habitual offender statute states the following:

       Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019        Page 8 of 10
               The state may not seek to have a person sentenced as a habitual offender
               for a felony offense under this section if the current offense is a
               misdemeanor that is enhanced to a felony in the same proceeding as the
               habitual offender proceeding solely because the person had a prior
               unrelated conviction. However, a prior unrelated felony conviction
               may be used to support a habitual offender determination even if
               the sentence for the prior unrelated offense was enhanced for any
               reason, including an enhancement because the person had been
               convicted of another offense.


       Ind. Code § 35-50-2-8(e) (emphasis added). The emphasized language in

       subsection (e) provides explicit legislative direction about when the State may

       not seek a double enhancement. That language, however, does not bar double

       enhancement here because Tuell’s current offense is not a misdemeanor that

       was enhanced to a felony in the same proceeding as the habitual offender

       proceeding solely because of a prior unrelated conviction. Thus, by the plain

       language of the statute, the circumstances here do not pose the risk of an

       impermissible double enhancement. Recalling that it is as important to observe

       what a statute does not say as what it does say, we find that this language

       provides explicit authorization for the potential double enhancement with

       which Tuell has been charged. See Brown, 70 N.E.3d at 334.


[14]   The legislative history of the habitual offender statute makes it even clearer that

       the statute provides specific authorization for a potential double enhancement

       here. When Stanek was decided, the habitual offender statute allowed the State

       to seek a habitual offender status for “any felony.” Stanek, 603 N.E.2d at 153.

       The version of the statute effective until June 30, 2014, did not allow the State

       to seek a habitual offender enhancement on an offense that was already
       Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019           Page 9 of 10
       enhanced under the same statute at issue here, the progressive penalty statue for

       motor vehicle offenses, Indiana Code sections 9-30-10-16 and -17. That version

       of the statute stated: “The state may not seek to have a person sentenced as a

       habitual offender for a felony offense under this section if . . . the offense is an

       offense under IC 9-30-10-16 or IC 9-30-10-17.” Ind. Code § 35-50-2-8 (effective

       until June 30, 2014). However, the version of the statute that went into effect

       on July 1, 2014, removed this exclusion. See Ind. Code § 35-50-2-8 (effective

       July 1, 2014). Finally, the current version of the habitual offender statute is

       consistent with the previous version of the statute; that is, it does not include

       the prohibition on using the habitual offender enhancement for offenses under

       Indiana Code section 9-30-10-16 and -17.


[15]   These changes to the habitual offender statute convince us even more that the

       current statute gives explicit authorization for use of the habitual offender

       enhancement in the ways Tuell seeks to avoid. Over time, the legislature has

       enacted various iterations of the habitual offender statute, calibrating it one way

       or another, so we see the narrow exclusion in the current version of the statute

       as not being arbitrary or arising by happenstance but, instead, a product of the

       legislature’s considered deliberation about what exclusions best fit the needs of

       our State at this time. Accordingly, the trial court did not abuse its discretion in

       denying Tuell’s motion to dismiss Count 2, the habitual offender charge.


[16]   Affirmed.


       Vaidik, C.J., and Riley, J., concur..


       Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019        Page 10 of 10
