COA: Habitual substance offender enhancement illegal on non-substance-related conviction

A man convicted of attempted residential entry will get a new sentence after the Indiana Court of Appeals determined the trial court erroneously imposed a habitual substance offender enhancement on a non-substance-related conviction.

In Jacob O. Robinson v. State of Indiana, 22A01-1604-CR-856, Jacob Robinson was fleeing on foot from police when he approached a stranger’s home, beat on the door to try to get inside and broke the door knob. Robinson was subsequently charged with Class D felony attempted residential entry and various drug charges and was alleged to be a habitual offender and habitual substance offender under.

Robinson pleaded guilty to the Class D felony attempted residential entry and habitual substance offender charges pursuant to an open plea agreement. He also pleaded guilty to and was sentenced on a charge of Level 6 felony resisting law enforcement and being a habitual substance offender under a different cause under a separate plea agreement on the same day.

The Floyd Circuit Court instructed Robinson to report to the probation department for a presentence investigation report, be he failed to report on the scheduled date. Then, on the morning of his scheduled sentencing, Robinson texted his counsel and asked for a continuance of the hearing because he had a real estate closing “coming up in the next few days” and “wish(ed) to get his ducks in line.” The trial court denied that request, noting Robinson’s failure to meet with the probation department indicated he wasn’t taking the matter seriously.

During sentencing, the prosecutor noted an anomaly in the fact that Robinson had admitted to being a habitual substance offender when he had not pleaded guilty to a substance-related offense. The prosecutor indicated a habitual offender enhancement was more appropriate and said he was broaching the issue to prevent a future post-conviction relief motion.

The trial court, however, said it was “not inclined to at this point to reopen this matter” and imposed a three-year executed sentence for the attempted residential entry conviction. The court also withheld imposition of the habitual substance offender enhancement until Robinson appeared and issued a warrant for his arrest for failure to appear.

After Robinson was arrested, the trial court held a supplemental sentencing hearing at which both parties were represented by new counsel. The judge did not mention the concerns about the habitual substance offender enhancement and instead imposed a separate three-year sentence, with 1 ½ years executed and 1 ½ years suspended to probation, for the enhancement.

On appeal, Robinson argued the trial court abused its discretion by denying his motion to continue and that his sentence is inappropriate, but the Indiana Court of Appeals declined to address those issues in a Friday opinion. Instead, Judge Rudolph Pyle wrote the court had concluded sua sponte that his sentence and plea agreement should be vacated because the habitual substance offender enhancement of a non-substance offense was illegal and contrary to the existing habitual substance offender statute in place at that time.

“We recognize that defendant ‘may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complaint that it was an illegal sentence,’” Pyle wrote. “Here, however, Robinson plead guilty under an open plea agreement and did not agree to a specific sentence. Thus, the trial court was required to sentence Robinson in accordance with the prevailing law and statutes at that time.”

The case was remanded with instructions to enter a new plea agreement, or for further proceedings if no agreement is reached.

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