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.