Court rules on consecutive enhancements issue

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Consecutive habitual offender enhancements are improper, whether the enhancements arise from separate trials on unrelated charges or separate trials on related charges, the Indiana Supreme Court ruled yesterday in two opinions.

The high court addressed whether in Byron K. Breaston v. State, No. 20S04-0810-CR-561, a defendant who committed a crime that resulted in a second habitual offender enhancement being imposed before he was discharged from his first crime could have multiple consecutive habitual offender enhancements.

Acknowledging Byron K. Breaston's case differs from caselaw on the matter - Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988), and Smith v. State, 774 N.E.2d 1021, 1024 (Ind. Ct. App. 2002), which ruled imposing consecutive habitual offender enhancements to be improper - the Supreme Court held the language of Indiana Code Section 35-50-1-2(d) doesn't expressly authorize multiple habitual offender enhancements to be imposed consecutively.

Breaston was sentenced in November 2004 to three years for felony escape, enhanced by four and one-half years for being a habitual offender, for not returning to his work release program. Several weeks later he was sentenced to three years for a theft conviction, which was enhanced by four and one-half years due to another habitual offender finding. The sentences and habitual offender enhancements were ordered to be served consecutively.

"Under Indiana law, a trial court cannot order consecutive habitual offender sentences," wrote Justice Frank Sullivan. "This holds true whether the concurrent enhanced sentence is imposed in a single proceeding or in separate proceedings."

In John D. Farris v. State of Indiana, No. 02S03-0904-PC-181, John Farris had consecutive habitual offender enhancements imposed following separate trials on related charges. Because his counsel didn't object to the imposition of consecutive habitual offender enhancements, and his sentence was improperly enhanced by 30-years, the Supreme Court ruled Farris is entitled to post-conviction relief on the basis of ineffective assistance of counsel.

Farris was convicted of robbery and then separately of murder and felony aggravated battery; he was found to be a habitual offender at each trial. His robbery sentence was enhanced by 30 years and his murder sentence was enhanced for 30 years for a total of 155 years.

The post-conviction court didn't find Farris' trial counsel to be ineffective for failing to oppose the imposition of the consecutive enhancements. Precedent established by Seay v. State, 550 N.E.2d 1284, 1289 (Ind. 1990), held the state is barred from seeking multiple, pyramiding habitual offender sentence enhancements by bringing successive prosecutions for charges that could have been consolidated for trial, Justice Sullivan wrote. The post-conviction court and the Indiana Court of Appeals both misapplied Seay.

Seay was decided seven years before Farris was convicted and his attorney was guilty of deficient performance for not moving to dismiss the habitual offender allegation filed with the murder and battery charges, wrote the justice.

In Breaston, the Supreme Court remanded to the trial court to order the habitual offender enhancements to be served concurrently and to re-sentence him accordingly. In Farris, the case was remanded to the post-conviction court to vacate his second enhancement in accordance with the opinion.

The Supreme Court affirmed the Court of Appeals in all other respects in both cases.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.