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Justices reaffirm ruling on sentence enhancements under habitual offender statute

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The Indiana Supreme Court Thursday granted the state’s request for a rehearing in a case in which the justices determined that Anthony Dye’s sentence for unlawful possession of a firearm by a serious violent felon, which was enhanced under the general habitual offender statute, was an impermissible double enhancement. The justices used the rehearing to reiterate that a person convicted of unlawful possession of a firearm by a SVF may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a SVF.

In Anthony H. Dye v. State of Indiana, 20S04-1201-CR-5,  the state petitioned for rehearing contending the court’s decision in Dye’s case was a departure from Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007), in that the justices held that serious violent felons who possess firearms cannot be punished as habitual offenders.

In Mills, the court held “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon.’” The justices reaffirmed the ruling, but pointed out that Dye is not entitled to relief on this ground.

Instead, the felony used to establish that Dye was a habitual offender was part of the same res gestae, and the enhancements must be based on two unrelated prior felonies. Dye's stemmed from a confrontation between Dye and an Elkhart Police officer in 1997, where he pleaded guilty to possession of a handgun, possession of a handgun within 1,000 feet of a school, and attempted battery while armed with a deadly weapon. The state used the possession within 1,000 feet of a school and a 1993 conviction for forgery to seek to have his sentenced enhanced under the general habitual offender statute. He was charged in 2007 - the conviction at issue in this case - with unlawful possession of a firearm by a SVF based on his conviction of attempted battery with a deadly weapon stemming from the 1997 incident.

“The State is not be permitted to support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon,” Rucker wrote.

Justice Mark Massa concurred with his colleagues that the original opinion didn’t extend Mills to situations where different prior unrelated convictions are used to establish a habitual offender finding and the elements of the SVF statue, but continued to “dissent from the ultimate result on rehearing for reasons previously explained” in the original opinion.
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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