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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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