An Indiana Supreme Court ruling that a conviction of possession of a firearm by a serious violent felon cannot have a sentence enhanced under the habitual offender statute does not apply when the enhancement came for a separate conviction, the Indiana Court of Appeals held Monday.
In Darryl Shepherd v. State of Indiana, 49A05-1111-CR-600, the court on rehearing affirmed its prior decision on Shepherd’s conviction of possession of a firearm by a serious violent felon.
The court held its petition for rehearing in abeyance until the Indiana Supreme Court ruled in Dye v. State, 972 N.E.2d 853, 855, 858 (Ind. 2012). The justices determined in Dye that the SVF conviction is impermissible only when the same underlying offense or chain of offenses is used to establish the SVF and the habitual offender status.
Shepherd also raises the issue for the first time on appeal, Judge Edward Najam wrote for the panel, thus waiving it.
“Shepherd’s waiver notwithstanding, our review of the record available on direct appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in cocaine, as a Class B felony, while his habitual offender enhancement was based on a 1991 Class C felony conviction for battery and a 2008 Class D felony conviction for intimidation,” Najam wrote. “There is no reason for this court to believe that any one of those three underlying felonies is in any way related to another. Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior decision.”