Judges reverse felony enhancement for handgun possession

Because a prior felony conviction the state relied on to enhance a man’s handgun possession charge was later reduced to a misdemeanor as part of a plea agreement, the Indiana Court of Appeals reversed the denial of the man’s motion to dismiss the enhancement.

Kevin Moss pleaded guilty to theft as a Class D felony in July 2012; as part of his plea deal, he could petition for alternative misdemeanor sentencing upon successful completion of probation without any violations. When he was pulled over by police in January 2013, he had completed all the terms of his probation and was discharged.

Moss was driving on a suspended license and had a handgun in his glove box. Moss admitted that his handgun permit had been revoked. He was charged with one count each of Class A misdemeanor carrying a handgun without a license and driving while suspended; the state sought to enhance the handgun charge to a Class C felony due to Moss’ prior felony theft conviction.

After he was charged, Moss petitioned the court to enter the felony conviction for theft as a Class A misdemeanor, which it did. Then he filed his motion to dismiss the felony enhancement, which the trial court denied, noting that at the time of the alleged offense, the felony conviction was in place.

On interlocutory appeal, the judges reversed in Kevin Moss v. State of Indiana, 49A02-1307-CR-618. The court found Gardiner v. State, 928 N.E.2d 194 (Ind. 2010), instructive. Gardiner also went back to the prior court and requested it modify her felony conviction after she was charged with a new crime of Class A felony dealing in methamphetamine. The Indiana Supreme Court pointed out “the statute prohibiting sentence modification below a certain minimum sentence if a defendant has a prior felony conviction “speaks in the present tense,” and after Gardiner’s prior conviction was reduced to a Class A misdemeanor, she not longer had a prior felony conviction.”

The statute at issue in Moss’ case also speaks in the present tense. After the prior court reduced his Class D felony conviction to a Class A misdemeanor, he, like Gardiner, no longer had a prior felony conviction, Senior Judge Carr Darden wrote.

The judges also noted that to allow the state to continue to use the prior felony conviction against him after Moss entered into a plea agreement would deprive him of the benefit for which he bargained and which the state accepted.

The case is remanded for further proceedings.

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