COA affirms felony auto theft conviction, habitual offender finding

A Lawrence County man has failed in his bid to overturn his auto theft conviction and habitual offender status, despite his argument that the ruling produced an improper double enhancement.

In Scott Afanador v. State of Indiana, 21A-CR-1000, Scott Afanador appealed his August 2020 conviction of Level 5 felony automobile theft and the finding that he was a habitual offender.

Previously, Afanador had been convicted of Class C felony forgery in 2002, Class C felony carrying a handgun without a license in 2012 and Level 6 felony automobile theft in 2017. Although the criminal act underlying the handgun offense occurred in 2012, five years before the criminal act underlying the auto theft offense in 2017, the Lawrence Superior Court entered the convictions and sentences for both offenses on the same day in 2019.

Afanador was also convicted of Level 2 felony dealing in methamphetamine, Level 3 felony possession of meth and Level 6 felony possession of a syringe in December 2020. He was later sentenced to 22 years, with two years suspended to probation and a concurrent 2½-year term.

Then in March 2021, he was convicted Level 6 felony automobile theft. The trial court used a certified copy of the judgment of conviction for the 2019 auto theft conviction to elevate Afanador’s 2021 auto theft conviction to a Level 5 felony.

The court also found Afanador to be a habitual offender and sentenced him to five years for the Level 5 felony conviction. It enhanced Afanador’s sentence by a period of four years because of the habitual offender finding. Those terms were ordered to run consecutively to his sentence for the December 2020 convictions, for an aggregate sentence of 31 years, with two years suspended.

On appeal, Afanador argued he received an impermissible double enhancement because his predicate handgun conviction and his predicate auto theft conviction were not “unrelated” in the context of Indiana’s enhancement law. He centered his argument around the general habitual offender enhancement statute, providing that if the state seeks a habitual offender sentencing enhancement for a person convicted of a Level 5 felony, it must prove the person has two prior “unrelated” felony convictions.

The Court of Appeals of Indiana affirmed, however, and found that Afanador’s predicate forgery conviction was “unrelated” to both the handgun and auto theft predicates because he was convicted and sentenced for forgery a decade before he committed the latter two crimes.

“The same cannot be said, however, about Predicate-2 Handgun and Predicate-3 Auto Theft because although Afanador committed Predicate-2 Handgun five years before he committed Predicate-3 Auto Theft, he was convicted of and sentenced for the two crimes on the same day,” Judge Melissa May wrote. “Consequently, the two offenses are not ‘unrelated’ prior felonies pursuant to the definition provided in the habitual offender statute.”

Going a step further, Afanador argued that because his handgun conviction and auto theft convictions could not both be used to support a sentence enhancement under the general habitual offender statute, the use of both convictions to support simultaneous sentence enhancements resulted in an impermissible double enhancement of his sentence.

“However, Afanador’s argument takes our Supreme Court’s holding in (Dye v. State, 984 N.E.2d 635 (Ind. 2013)) a step too far,” May wrote in affirming the trial court. “For one, we note Indiana Code section 35-50-2-8(f) expressly states its definition of ‘unrelated’ is intended for ‘purposes of this section’— the general habitual offender statute — ‘only.’ Yet, Afanador asks us to expand that definition beyond the general habitual offender context and apply it to all double enhancements. Second, it ignores the primary focus of Dye-II, which was that two offenses committed in the same episode of criminal conduct could not be used to support double enhancement.”

The appellate court therefore held that the trial court did not err in using Afanador’s predicate auto theft conviction to enhance his offense under a progressive-penalty statute, or his handgun conviction to enhance his sentence pursuant to Indiana’s general habitual offender statute.

“The two predicate offenses are not part of the same res gestae,” it concluded. “They occurred on different days, involved different victims, and were assigned separate cause numbers.”

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