ILNews

COA rules on habitual-offender enhancement

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals affirmed in part, reversed in part, and remanded a case involving the denial of a defendant's motion to correct an erroneous sentence. The court also considered whether the trial court dealt correctly with the defendant's habitual substance offender enhancement by treating it as a separate conviction and whether the trial court may properly suspend any portion of the sentence enhanced by the habitual substance offender finding.

In Joseph Bauer v. State of Indiana, 92A05-0704-PC-229, Bauer filed a motion to correct an erroneous sentence, which the trial court denied. Bauer pleaded guilty to three counts: Count I, Class D felony operating a vehicle while intoxicated; Count III, Class D felony operating a motor vehicle after being adjudged a habitual traffic violator; and Count VI, habitual substance offender. Bauer was sentenced to three years for both Counts I and III to be served concurrently, and three years for Count VI, with one year executed and two years suspended, served consecutively, for a total of six years.

Bauer claimed in his motion to correct that the state failed to properly document the charges against him in violation of his constitutional rights, and that his counsel provided ineffective assistance. Judge Terry Crone wrote in the opinion that these claims are not the type of claims to be presented in a motion to correct an erroneous sentence, so the court affirmed the trial court's denial of his motion regarding these claims.

The state conceded the trial court erred in treating the habitual substance offender finding as a separate conviction. A habitual substance offender finding is not a separate crime but an enhancement of the sentence for the underlying crime to which it is attached, wrote Judge Crone. The court remanded with instructions to amend the sentencing order to show Bauer's habitual offender finding is attached to an underlying conviction and to enhance the sentence for that conviction accordingly.

Sua sponte, the court addressed the propriety of the trial court's suspension of part of Bauer's habitual substance offender enhancement. Indiana Code Section 35-50-2-2(a) allows for a court to suspend any part of a sentence for a felony, and subsection (b) lists the crimes for which a trial court may suspend that part of the sentence that is in excess of the minimum sentence. The court disagreed with the plain language of I.C. 35-50-2-10(f) that requires habitual offender enhancements to be fully executed, referring to Devaney v. State, 578 N.E.2d 386, 390 (Ind. Ct. App. 1991), which held that an enhanced sentence imposed under I.C. 35-50-2-10 may not be suspended.

Judge Crone wrote that I.C. 35-50-2-10(f) is similar to other statutes governing sentences for underlying felonies, and the language of those statutes do not prevent such sentences from being suspended and the court "sees no reason to treat I.C. 35-50-2-10(f) differently."

The court noted that I.C. 35-50-2-2(c) provides that whenever a court suspends a felony sentence, it shall place the person on probation for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire. Because of this, the trial court must place Bauer on probation during the time his sentence is suspended, wrote Judge Crone.
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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