                                                                            Apr 07 2015, 5:57 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Romy N. Elswerky                                           Gregory F. Zoeller
Gibson Law Office                                          Attorney General of Indiana
Lafayette, Indiana
                                                           Christina D. Pace
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John W. Light,                                             April 7, 2015

Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           79A02-1409-CR-637
        v.                                                 Appeal from the Tippecanoe Superior
                                                           Court.

State of Indiana,                                          The Honorable Randy J. Williams,
                                                           Judge.
Appellee-Plaintiff.
                                                           Cause No. 79D01-1403-FC-12




Riley, Judge.




Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015                          Page 1 of 7
                                        STATEMENT OF THE CASE
[1]   Appellant-Defendant, John W. Light (Light), appeals his sentence following an

      open plea, in which he pled guilty to Count I, operating a motor vehicle while

      privileges are forfeited for life, a Class C felony, Ind. Code § 9-30-10-17 (2013);

      Count II, operating a vehicle while intoxicated, a Class A misdemeanor, I.C. §

      9-30-5-2; and his adjudication as a habitual substance offender, I.C. § 35-50-2-

      10(b)1.


[2]   We affirm.


                                                           ISSUE

[3]   Light raises one issue on appeal, which we restate as follows: Whether the trial

      court erred when it ordered Light’s conviction for operating a motor vehicle

      while privileges are forfeited for life to be served consecutively to his habitual

      substance offender sentence enhancement, attached to his Class A

      misdemeanor conviction.


                               FACTS AND PROCEDURAL HISTORY

[4]   On October 18, 2013, the State filed an Information charging Light with Count

      I, operating a motor vehicle while privileges are forfeited for life, a Class C

      felony, I.C. § 9-30-10-17 (2013); and Count II, operating a vehicle while

      intoxicated, a Class A misdemeanor, I.C. § 9-30-5-2. On December 17, 2013,



      1
          This statute was repealed by P.L. 158-2013, § 664, eff. July 1, 2014.


      Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015    Page 2 of 7
      the State filed an amendment to the Information, adding a habitual substance

      offender charge. On July 14, 2014, Light pled guilty to all charges in an open

      plea. On August 14, 2014, the trial court imposed an executed six years

      sentence for Class C felony operating while forfeited for life, and an executed

      one-year sentence on the Class A misdemeanor operating a vehicle while

      intoxicated. The trial court enhanced the Class A misdemeanor by six-years for

      the habitual substance offender (HSO) adjudication, with three years executed

      and three years suspended. The trial court ordered the sentences to run

      consecutively, for an aggregate sentence of thirteen years.


[5]   Light now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[6]   Light contends that the trial court erred by ordering his conviction for operating

      a motor vehicle while privileges are forfeited for life and his HSO sentence

      enhancement, attached to his Class A misdemeanor conviction, to be served

      consecutively. He maintains that the imposition of the consecutive sentences of

      the HSO enhancement with his sentence for operating a vehicle for life

      constitutes an impermissible double enhancement.


[7]   Indiana courts have previously discussed the ways in which the Legislature has

      dealt with individuals who have proven to be repeat or habitual criminals. The

      first type, the general habitual offender statute, I.C. § 35-50-2-8 (2013), provides

      that a person convicted of three felonies of any kind are classed as “habitual

      offenders.” Beldon v. State, 935 N.E.2d 480, 482 (Ind. 2010). Habitual offenders

      Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015   Page 3 of 7
      are subject to an additional term of years beyond that imposed for the

      underlying felony. Id. The second type, specialized habitual offender statutes,

      applies where the predicate underlying offenses are of a common type. Id.

      Examples are found in I.C. § 9-30-10-4 (2013), which subjects habitual traffic

      violators to an additional term of years beyond that imposed for the underlying

      traffic offense, and the statute at issue in this case, I.C. § 35-50-2-10 (2013),

      which applies to habitual substance offenders. Id. The third and final type, the

      progressive penalty statutes, is even more specialized. Id. “Under this type, the

      seriousness of a particular charge (with a correspondingly more severe sentence)

      can be elevated if the person charged has previously been convicted of a

      particular offense.” Id. (quoting State v. Downey, 770 N.E.2d 794, 795 (Ind.

      2002)). Examples of progressive penalty statutes include the statute at issue

      here, I.C. § 9-30-10-17.


[8]   Light pled guilty to a Class C felony, operating a motor vehicle while privileges

      are forfeited for life, based on the same underlying conviction in Cause No.

      79E01-0006-DF-190 (Cause DF-190) of March 11, 2002, as well as a Class A

      misdemeanor conviction with an HSO enhancement. “A person is a HSO if

      the individual has accumulated at least two prior unrelated substance offense

      convictions. See I.C. § 35-50-2-10(b). According to the charging Information,

      Light’s HSO enhancement is predicated on three prior unrelated substance

      offenses: (1) Cause DF-190, operating while intoxicated, on March 11, 2002;

      (2) Cause No. 12D01-9410-CF-89 (Cause CF-89), operating while intoxicated,

      on September 30, 1995; and (3) and Cause No. 12D01-9301-CM-32 (Cause


      Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015     Page 4 of 7
       CM-32), operating while intoxicated, on May 10, 1993. Accordingly, only the

       progressive penalty statute and the specialized habitual offender statute are

       implicated in this case.


[9]    As a general rule, “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.” Beldon, 926 N.E.2d at 483. Although Beldon further

       holds that “the requisite legislative direction exists to authorize an underlying

       elevated conviction to be enhanced by an HSO enhancement, even if the same

       prior conviction was used to support both enhancements, we need not go there

       as the trial court did not attach the HSO enhancement to Light’s Class C

       progressive penalty conviction, but rather to his conviction for the Class A

       misdemeanor conviction, operating a vehicle while intoxicated. Id. at 484.


[10]   Thus, the only issue before us is whether it is permissible to run the HSO

       enhanced sentence consecutively to the sentence for operating while forfeited

       for life, which was itself already enhanced under a progressive penalty statute.

       In Sweatt v. State, 887 N.E.2d 81, 84 (Ind. 2008), the defendant’s sexually

       violent felon (SVF) conviction and his status as a habitual offender were both

       based on the same prior rape conviction. The habitual offender enhancement

       was applied to the defendant’s conviction for burglary, not his SVF conviction.

       Id. Our supreme court held that this “d[id] not . . . create a double

       enhancement” because the prior rape conviction supported enhancements that

       operated on separate counts. Id. at 84. However, the court held that “where

       Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015     Page 5 of 7
       separated counts are enhanced based on the same prior felony conviction,

       ordering the sentences to run consecutively has the same effect as if the

       enhancements both applied to the same count.” Id.


[11]   Although the trial court seemingly relied on the same Cause DF-190 to support

       both enhancements, we note that the underlying predicate offense arising out of

       Cause DF-190 is different for each enhancement. For the Class C felony

       enhancement, the predicate offense is operating a motor vehicle after driving

       privileges are forfeited for life, while the predicate offense for the HSO

       enhancement is a conviction for operating while intoxicated with a prior

       conviction.2 Nevertheless, the State was merely required to establish two prior

       unrelated substance offenses for the HSO enhancement. Thus, even though the

       State established three such offenses to sustain a valid HSO enhancement, it

       needed only two. Consequently, Cause DF-190 was entirely unnecessary to

       support Light’s HSO enhancement. Unlike Sweatt, Light’s two enhancements

       were not based on the same prior felony convictions: his Class C felony

       enhancement is based on the underlying Cause DF-190; while his HSO

       enhancement is based on the underlying Cause CF-89 and Cause CM-32. See

       Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied (when two

       separate enhancements are not based on the same prior felony conviction,




       2
         In Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013), our supreme court expanded the doctrine to hold that
       when two felonies arise out of the same conviction, which are unrelated and not part of the same res gestae,
       then each felony is independently viewed and not considered the same prior conviction for purposes of
       enhancement. However, today we need not analyze whether the two felonies arising out of Cause DF-190
       meet these requirements as we affirm the trial court on a different ground.

       Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015                           Page 6 of 7
       Sweatt is not controlling and the trial court’s imposition of consecutive

       sentences is not an improper double enhancement). We therefore conclude that

       the trial court’s imposition of consecutive sentences does not constitute an

       improper double enhancement under the facts and circumstances of the present

       case.


                                                 CONCLUSION

[12]   Based on the foregoing, we hold that the trial court properly ordered Light’s

       sentences to run consecutively.


[13]   Affirmed.


[14]   Baker, J. concurs


[15]   Vaidik, C. J. concurs in result




       Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015   Page 7 of 7
