House to consider stricter definition of out-of-state Level 6 felony

January 15, 2018

A bill that would change how Indiana’s courts treat out-of-state felonies during sentencing for habitual offender purposes will come before the full Indiana House of Representatives for a vote Tuesday.

Last week, the House Courts and Criminal Code Committee passed House Bill 1033, which seeks to define a Level 6 felony from an out-of-state jurisdiction as “a conviction … to which the convicted person might have been imprisoned for more than one (1) year, but less than two and one-half (2½) years.” Current law, Indiana Code section 35-50-2-1, defines an out-of-state Level 6 felony as any conviction resulting in a possible sentence of more than one year.
That law, coupled with I.C. 35-50-2-8(b), recently led a majority of the Indiana Supreme Court to overturn Darryl Calvin’s habitual offender enhancement. In Darryl Calvin v. State of Indiana, 02S03-1709-CR-611, Calvin had two prior Illinois convictions for Class 1 felony residential burglary when he was convicted in Indiana of Level 4 felony burglary.

A jury also found Calvin to be a habitual offender, but the majority of the Supreme Court reversed the enhancement after determining I.C. 35-50-2-1 classified all out-of-state felonies as Level 6 felonies. Further, an offender can only be a habitual offender under Indiana law if they have two prior unrelated felonies, one of which cannot be considered a Level 6 or Class D.

Justice Mark Massa, however, dissented from the majority.

“Here, the legislature used the traditional line of demarcation between felonies and misdemeanors — imprisonment for at least a year — to define low-level felonies from other states, which otherwise might use a different nomenclature of class or level, too varied to be included by specific reference,” Massa wrote in his December dissent. “This doesn’t mean they meant all out-of-state felonies are Levels 6s, regardless of severity.”

HB 1033, authored by Thomas Washburne, R-Evansville, would more narrowly define the parameters of an out-of-state Level 6 felony under Indiana law.


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