MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Jul 31 2018, 9:45 am

regarded as precedent or cited before any                                     CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren D. Bedwell                                         Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Appellate Division
                                                          Lyubov Gore
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James E. Jones,                                           July 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-26
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Stanley E. Kroh,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G03-1611-F1-45794



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018                     Page 1 of 9
                                           Case Summary
[1]   James E. Jones (“Jones”) was found guilty of Unlawful Possession of a Firearm

      by a Serious Violent Felon, a Level 4 felony (“SVF”),1 and determined to have

      the status of a habitual offender.2 The trial court sentenced Jones to six years in

      the Indiana Department of Correction, and imposed an additional twelve years

      as a habitual-offender sentence enhancement. Jones now appeals, challenging

      the enhancement of his sentence. He argues that the enhancement is improper

      because the felonies supporting the enhancement are not unrelated, and that he

      has been subjected to an impermissible “double enhancement.”


[2]   We affirm.



                                   Facts and Procedural History
[3]   After a shooting occurred on November 16, 2016, Jones became a suspect, and

      officers from the Indianapolis Metropolitan Police Department (“IMPD”)

      began surveilling a residence and a truck parked near the residence that was

      associated with Jones. On November 22, 2016, IMPD officers observed Jones

      getting into the truck, and ordered Jones to exit. Jones then exited the truck

      while leaving the door open, which revealed a handgun on the floorboard.




      1
          Ind. Code § 35-47-4-5.
      2
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 2 of 9
[4]   Jones was arrested, and charged with Attempted Murder and Aggravated

      Battery based upon allegations concerning the November 16 shooting. The

      State also charged Jones with two counts of SVF; one related to possessing a

      gun on November 16, and the other related to possessing the gun in the truck

      on November 22. The State further alleged that Jones was a habitual offender.


[5]   In September 2017, the Attempted Murder and Aggravated Battery counts were

      tried to a jury, which found Jones not guilty. Thereafter, Jones agreed to waive

      his right to a jury trial on the remaining allegations, in exchange for dismissal of

      the SVF count related to November 16. The court dismissed that count, and,

      following a bench trial, determined that Jones (1) was guilty of the remaining

      SVF count; and (2) had the status of a habitual offender. The SVF count was

      supported by evidence indicating that Jones had a prior conviction for Dealing

      in Cocaine. The habitual-offender allegation was supported by evidence

      indicating that Jones had a 1991 felony conviction for Burglary and a 1995

      felony conviction for Carrying a Handgun Without a License; the latter of

      which had been elevated to a felony because of the 1991 conviction. At trial,

      Jones argued that these two felonies were not “unrelated” and therefore did not

      support an enhancement under the habitual-offender statute.


[6]   Following a sentencing hearing, the trial court imposed a sentence of six years

      on the SVF count and ordered a twelve-year sentence enhancement. All

      eighteen years were to be served in the Indiana Department of Correction.


[7]   Jones now appeals.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 3 of 9
                                  Discussion and Decision
[8]    This case involves the interplay between two systems addressing recidivism: the

       general “habitual offender” statute and “progressive penalty” statutes. Under

       the former, an enhanced sentence is available when a defendant qualifies as a

       habitual offender. See generally I.C. § 35-50-2-8. Under the latter, “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.” State v. Downey, 770 N.E.2d 794, 796 (Ind. 2002).


[9]    To obtain the instant habitual-offender enhancement, the State was obligated to

       prove that Jones had “been convicted of two (2) prior unrelated felonies” and

       that “at least one (1) of the prior unrelated felonies is not a Level 6 felony or a

       Class D felony.” I.C. § 35-50-2-8(b). On appeal, Jones primarily focuses on

       whether his predicate offenses were “unrelated.” This is a question of law,

       which we review de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).


[10]   The habitual offender statute provides, in pertinent part:


               A person has accumulated two (2) . . . prior unrelated felony
               convictions for the purposes of this section only if:


                        (1) the second prior unrelated felony conviction was
                        committed after commission of and sentencing for the first
                        prior unrelated felony conviction; [and]


                        (2) the offense for which the state seeks to have the person
                        sentenced as a habitual offender was committed after


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018     Page 4 of 9
                        commission of and sentencing for the second prior
                        unrelated felony conviction.


       I.C. § 35-50-2-8(f). When applying a previous version of the statute, our

       supreme court observed that “[t]he phrase ‘unrelated felony’ . . . means the

       predicate felony is not part of the res gestae of the principal offense, and that the

       second predicate felony was committed after conviction of the first predicate

       felony.” Beach v. State, 496 N.E.2d 43, 45 (Ind. 1986) (internal citation

       omitted). In this context, res gestae denotes acts that are part of an uninterrupted

       transaction. Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013) (“Dye II”).


[11]   Here, the State presented evidence that, in 1991, Jones was convicted of

       Burglary, as a Class B felony. The State also presented evidence that, in 1995,

       Jones was convicted of Carrying a Handgun Without a License, as a Class C

       felony—an offense that Jones committed after he was sentenced for the first

       felony. Due to a progressive-penalty scheme, the 1995 offense was elevated

       from a misdemeanor to a felony because of Jones’s 1991 felony conviction.

       Based on this connection between the offenses, Jones argues that the felonies

       are not “unrelated,” rendering his enhancement improper.


[12]   Our Indiana Supreme Court rejected this line of argument in Beach. That case

       involved a burglary committed in 1984. Beach, 496 N.E.2d at 45. The State

       sought a habitual-offender enhancement based on (1) a burglary for which the

       defendant was sentenced in 1976 and (2) unlawful use of a weapon committed

       in 1980, where the offense had been elevated to a felony because of the prior

       burglary. Id. at 44-45. The defendant argued that the prior felonies were not
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 5 of 9
       unrelated because “the first felony conviction cause[d] the second conviction to

       be a felony rather than a misdemeanor.” Id. at 44. In resolving the case, the

       Beach Court evaluated the “sequence of events” and determined that the

       felonies were “clearly” unrelated in the sense contemplated by the statute. Id. at

       45. In doing so, the Court “noted a ‘clear intent of the legislature . . . that all

       persons who have been convicted of two prior felonies are subject to being

       found to be habitual offenders.’” Id. (quoting Woods v. State, 471 N.E.2d 691,

       693 (Ind. 1984)); see also Marsillett v. State, 495 N.E.2d 699, 705 (Ind. 1986)

       (“The purpose of this enhancement is to penalize more severely those persons

       whom prior sanctions have failed to deter from committing felonies.”).


[13]   In attempting to distinguish Beach, Jones questions the clarity of the legislature’s

       intent based upon developments after the case was decided, and argues that

       there is ambiguity in the definition of “unrelated.” Jones cites to Mills v. State,

       in which the Indiana Supreme Court identified “an ongoing dialogue between

       Indiana’s appellate courts and the Legislature on the general question of when a

       court may impose more severe sentences than would otherwise be the case on

       criminals because they have proven to be ‘repeat’ or ‘habitual’ offenders.” 868

       N.E.2d 446, 448 (Ind. 2007). Yet, years after discussing those developments in

       Mills, the Indiana Supreme Court returned to Beach when evaluating the

       relatedness of certain offenses. See Beldon v. State, 926 N.E.2d 480, 484 (Ind.

       2010) (“We adhere to Beach; the offenses are unrelated.”). Ultimately, Beach

       directs our resolution of this issue: the use of one predicate offense to elevate

       another does not affect whether the offenses are “unrelated.” Instead, the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 6 of 9
       question of whether offenses are “unrelated” involves an evaluation of res gestae

       and the sequence of events. See Beach, 868 N.E.2d at 45; Beldon, 926 N.E.2d at

       484.3 Thus, Jones has not demonstrated that his enhancement is improper due

       to the connection between the predicate offenses or any alleged ambiguity.4


[14]   Jones also appears to argue that use of the predicate offenses produced an

       impermissible double enhancement. Jones directs us to Mills for the proposition

       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.” 868 N.E.2d at 451. This is the general rule against “double

       enhancements,” which remains intact. See Beldon, 926 N.E.2d at 484 (citing

       Mills, 868 N.E.2d at 452). In challenging his enhancement, Jones briefly asserts

       that “explicit authorization for multiple sentence enhancements under

       progressive penalty schemes . . . is lacking in this case.” Appellant’s Br. at 16.


[15]   Double-enhancement issues arise when “more than one” type of statutory

       system addressing recidivism “is applied to the defendant at the same time.”




       3
         As to that evaluation, Jones asserts that the “prior burglary conviction was part of the res gestae of the
       handgun offense because it was an essential element of the felony” in that it was “one of the ‘things done’ to
       elevate the handgun charge to [a] felony.” Appellant’s Br. at 16. Yet, Jones has failed to demonstrate that
       any of the pertinent offenses were part of the same uninterrupted transaction. See Dye II, 984 N.E.2d at 629.
       4
         We note also that in the more than thirty years since Beach was decided—and in the years since Beldon
       relied upon Beach—the legislature has not amended the habitual-offender statute in a way undermining our
       supreme court’s interpretation of “unrelated.” See Layman v. State, 42 N.E.3d 972, 978 (Ind. 2015) (observing
       that a judicial interpretation of a statute, accompanied by legislative inaction for a considerable time, may be
       understood to signify the legislature’s acquiescence and agreement with the judicial interpretation).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018                          Page 7 of 9
       See Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012), affirmed on reh’g. In applying

       the general rule against double enhancements, we first determine whether the

       present conviction was obtained pursuant to a progressive-penalty scheme or a

       specialized habitual-offender scheme. Id. at 858. “If not, then there is no

       double-enhancement problem.” Id.


[16]   Here, double-enhancement concerns were implicated in that the SVF statute is

       considered a progressive-penalty statute, and Jones received an enhanced

       sentence upon his SVF conviction. See Dye, 972 N.E.2d at 858. Yet, in such

       instances, there is a double-enhancement problem only if the State used the

       same felony to support the SVF conviction and the enhancement. See Mills, 868

       N.E.2d at 452; see also Dye II, 984 N.E.2d at 630 (“[A] person convicted of

       unlawful possession of a firearm by a serious violent felon may not have his or

       her sentence enhanced under the general habitual offender statute by proof of

       the same felony used to establish that the person was a serious violent felon.”).

       That is not what happened here, and Jones has failed to articulate how the

       enhancement of his conviction constituted an improper double enhancement.


[17]   However, to the extent that Jones is arguing that an enhancement cannot rely

       upon a predicate felony that was itself elevated, our legislature has provided as

       follows: “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.” I.C. § 35-50-2-8(e). In Olatunji v. State, this

       Court determined that this language clarified “the legislature’s original intent”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 8 of 9
       that “a misdemeanor enhanced to a felony . . . may itself serve as a predicate

       habitual offender felony.” 788 N.E.2d 1268, 1272 (Ind. Ct. App. 2003), trans.

       denied. The Court also noted that the concern with double enhancement relates

       to the enhancement of a present conviction, and that the “concern has never

       been applied to a situation where a predicate habitual offender felony was itself

       enhanced for whatever reason.” Id. at 1273.


[18]   Ultimately, we are not persuaded that the enhancement is improper.


[19]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-26 | July 31, 2018   Page 9 of 9
