The Indiana Court of Appeals reduced a man’s aggregate sentence by three years after it found he was denied effective assistance of counsel when his counsel did not bring up a statutory limitation issue.
Jennings Daugherty got a 53-year sentence for felony intimidation, operating a motor vehicle while intoxicated and resisting law enforcement, all Class D felonies; and two counts of Class B felony possession of a firearm by a serious violent felon that was enhanced by 20 years because of his status as an habitual offender. Police found him clearly drunk when they checked out a bar fight he was allegedly involved in, and later found him on the highway driving his van. Every time the police got out of their car to check on him after they pulled him over, he would slowly drive away until he ran out of room. He also had a handgun and rifle in the car.
The trial court later vacated his habitual offender charge, bringing the sentence to 33 years. He filed for post-conviction relief in 2015 and it was denied, even though his appellate counsel said he did not consider raising a claim that consecutive sentences for two serious violent felon convictions constituted impermissible double enhancement, as well as the fact that Daugherty’s aggregate sentence exceeded the statutory limit for consecutive sentences arising out of single episode of criminal conduct.
The COA agreed with Daugherty’s claim that his sentence for the intimidation conviction ordered to run consecutively to other sentences exceeded the maximum allowed punishment pursuant to Indiana Code 35-50-1-2. An aggregate sentence cannot exceed the advisory sentence for a felony which is one class of felony higher than that of the most serious felonies for which he had been convicted, and his sentence for Class B felony unlawful possession of a firearm should have only carried maximum sentence of a Class A felony, 30 years. Appellate courts need to correct a sentence that violates the trial court’s authority to impose consecutive sentences, and Daugherty’s attorney did not do that.
Daugherty’s case was remanded to the trial court for resentencing to take off three years from his 33-year aggregate sentence.
Daugherty also argued his appellate counsel was ineffective because it did not raise a claim that two consecutive sentences based on a single prior felony conviction constituted impermissible double enhancement. He said because the two SVF convictions were already enhanced and each was supported by the same underlying felony, ordering the sentences to run consecutively violated the double enhancement prohibition. The COA did not agree.
The COA said Daugherty’s single felony conviction served as an element in each SVF count, not an enhancement, and each SVF count was a separate and distinct offense. Also, there was no reasonable probability the result would have been different if appellate counsel would have made the claim.
The case is Jennings Daugherty v State of Indiana, 89A01-1510-PC-1532.