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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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