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. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  2. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  3. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  4. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  5. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

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