Appellate court allows enhanced sentence to stand

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An Indianapolis man who described his offenses as “being in a truck with drugs and a gun” was unable to get his sentence reduced after the Court of Appeals of Indiana rejected his argument that his six-year enhancement for being a habitual offender was an impermissible double enhancement.

Albert Guthery was pulled over by Indianapolis Metropolitan Police officers and was found with 223.51 grams of cocaine, 28.03 grams of methamphetamine and 24.91 grams of fentanyl in his truck. He admitted he intended to sell the drugs, but he denied that the handgun officers also found was his.

Following a bench trial, Guthery was convicted and sentenced for dealing in cocaine, a Level 2 felony, and dealing in meth, a Level 2 felony. The Marion Superior Court imposed 25-year concurrent sentences for each conviction, with 10 years executed in the Indiana Department of Correction, 10 years executed in community corrections and five years suspended, with three years of probation. In addition, the trial court enhanced Guthery’s conviction for dealing in meth by six years for being a habitual offender.

On appeal, Guthery asserted his habitual offender enhancement must be vacated.

The trial court determined Guthery’s sentence was non-suspendable below the minimum sentence for the Level 2 meth offense because of his prior felony conviction for dealing cocaine. Moreover, the trial court found the defendant to be a habitual offender based on his two prior, unrelated convictions for Class A felony cocaine dealing and Class C felony cocaine possession, and it enhanced his sentence for dealing in methamphetamine by six years as a result.

Guthery countered that the trial court impermissibly used the same prior conviction to doubly enhance his sentence “once as a non-suspendable offense, then as a predicate to the habitual offender enhancement.”

But the Court of Appeals upheld the conviction and sentencing in Albert Guthery v. State of Indiana, 21A-CR-711.

Pointing to Conrad v. State, 747 N.E.2d 575 (Ind. Ct. App. 2001), trans. denied, Guthery argued the felony suspendability statute should be viewed in the same way as the serious violent felon statute because “it increases the mandatory period of incarceration from nothing at all to a definitive amount of mandatory incarceration.” Consequently, he continued, any sentence imposed under the felony suspendability statute may not be further enhanced under the general habitual offender statute.

The Court of Appeals was not persuaded.

“… (T)he suspendability statute does not expand the sentencing range for an offense. Rather, it merely limits the discretion of the trial court to order a sentence to be suspended, all within the existing sentencing range for the offense,” Judge Patricia Riley wrote for the court. “Therefore, the felony suspendability statute is not a sentencing enhancement statute to which double-enhancement analysis applies.”

As such, the appellate panel ruled the trial court did not abuse its discretion in finding Guthery’s sentence for dealing in meth to be non-suspendable under the minimum for a Level 2 felony, nor in enhancing that sentence for being a habitual offender based in part on the same predicate felony.

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