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First impression for habitual offender statute

July 7, 2009

In an issue of first impression, the Indiana Court of Appeals had to decide whether a defendant's prior conviction for conspiracy to deal in cocaine qualified as a conviction for dealing in cocaine under the state's habitual offender statute. The appellate court concluded today the prior conviction for conspiracy to commit dealing is a prior conviction for dealing in cocaine for purposes of Section 8 of the statute.

In Myron Owens v. State of Indiana, No. 49A02-0811-CR-1052, Myron Owens appealed his convictions of felony dealing cocaine within 1,000 feet of a youth center program and felony obstruction of justice. He also appealed whether his prior convictions were sufficient to support his habitual offender determination.

Owens was arrested following a drug buy arranged by police with a confidential informant. The sale happened within 1,000 feet of a church day care center. He was also convicted of felony possession cocaine and misdemeanor resisting law enforcement, and sentenced to 80 years.

The Court of Appeals found sufficient evidence to support both his conviction in dealing in cocaine within 1,000 feet of the youth program center and obstruction of justice when he attempted to eat the money used during the drug buy.

In terms of his habitual offender enhancement, Owens claimed his instant dealing offense isn't listed in Indiana Code Section 35-50-2(b)(4) and that he hasn't accrued two unrelated dealing convictions. Owens' instant conviction for dealing isn't delineated in the subsection. The habitual offender statute states a prior conviction for dealing or possession of an illegal drug doesn't count for habitual offender purposes if the crime wasn't listed in Section 2(b)(4) and the defendant has less than two prior dealing convictions.

The panel considered whether Owens' conspiracy to deal in cocaine conviction in 2004, combined with his prior convictions of dealing in cocaine and carrying a handgun without a license, shows he had three prior felony convictions.

"The question presented here is whether Owens's prior conviction for conspiracy to deal in cocaine qualifies as a conviction for 'dealing in cocaine' under Section 8(d)(3)(C)(ii)," wrote Judge Paul Mathias.

In order to have convicted Owens of conspiracy to deal in cocaine, the state had to prove he actually dealt in cocaine, and under these particular facts and circumstances, Owens' prior conviction for conspiracy to commit dealing is, for purposes of Section 8, a prior conviction for dealing in cocaine, wrote the judge.

"Because Owens had two prior convictions for dealing in cocaine, the trial court could properly apply the habitual offender enhancement to the sentence imposed upon Owens's instant dealing conviction," he wrote.

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