ILNews

COA rules on habitual-offender enhancement

Jennifer Nelson
January 1, 2007
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. @BryanJBrown, You are totally correct. I have no words, you nailed it.....

  2. You have not overstated the reality of the present situation. The government inquisitor in my case, who demanded that I, on the record, to choose between obedience to God's law or man's law, remains on the BLE, even an officer of the BLE, and was recently renewed in her contract for another four years. She has a long history in advancing LGBQT rights. http://www.realjock.com/article/1071 THINK WITH ME: What if a currently serving BLE officer or analogous court official (ie discplinary officer) asked an atheist to affirm the Existence, or demanded a transsexual to undergo a mental evaluation to probe his/her alleged mindcrime? That would end a career. The double standard is glaring, see the troubling question used to ban me for life from the Ind bar right here: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners (see page 8 of 21) Again, what if I had been a homosexual rights activist before law school rather than a prolife activist? A gay rights activist after law school admitted to the SCOTUS and Kansas since 1996, without discipline? A homosexual rights activist who had argued before half the federal appellate courts in the country? I am pretty certain that had I been that LGBQT activist, and not a pro-life activist, my passing of the Indiana bar exam would have rendered me an Indiana attorney .... rather than forever banished. So yes, there is a glaring double standard. And some are even beyond the reach of constitutional and statutory protections. I was.

  3. Historically speaking pagans devalue children and worship animals. How close are we? Consider the ruling above plus today's tidbit from the politically correct high Court: http://indianacourts.us/times/2016/12/are-you-asking-the-right-questions-intimate-partner-violence-and-pet-abuse/

  4. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  5. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

ADVERTISEMENT