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Statute doesn’t allow consecutive habitual offender sentences

May 7, 2014

The Indiana Court of Appeals reversed a man’s sentence for operating a vehicle while intoxicated, finding the trial court had no authority to order his present sentence, enhanced by the habitual substance offender statute, to be served consecutively to his previously enhanced sentences.

John Jacob Venters appealed his sentence referred to as Cause No. FD-011 in court records, in which he pleaded guilty to Class D felony operating a vehicle while intoxicated. He admitted to being a habitual substance offender. The trial court sentenced him to three years on the charge, enhanced by seven years because of the habitual substance offender statute. Two years of the executed sentence were suspended to probation. The sentence was ordered to be served consecutively to sentences imposed under Cause Nos. FB-024, FC-064, and FB-011. Those cases involve felony drug convictions as well as reckless homicide. He was also found to be a habitual substance offender and habitual offender in those cases.

In John Jacob Venters v. State of Indiana, 79A02-1305-CR-481, the Court of Appeals reversed the trial court and remanded for his sentence in the OVWI case to be served concurrently with the other sentences.

Absent express statutory authority to do so, trial courts cannot impose consecutive enhanced sentences, regardless of the circumstances under which they arise, Judge Rudolph Pyle III wrote, citing Starks v. State, 523 N.E.2d 735 (Ind. 1988), and Aslinger v. State, 2 N.E.3d 84 (Ind. Ct. App. 2014).

“The habitual offender and habitual substance offender statutes have been amended several times since Starks. With those amendments, the statutes are still silent on a trial court’s authority to impose consecutive habitual offender sentences. Accordingly, we reverse and remand to the trial court with instructions to run Venters’s enhanced sentence at issue in this case concurrently with any previous sentence enhanced by the habitual offender or habitual substance offender statutes,” he wrote.
 

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