A man who drove drunk with his three young grandchildren in the car cannot challenge the validity of his convictions on direct appeal, but the Indiana Court of Appeals remanded Friday so that his habitual vehicular substance offender enhancement could be attached to a specific felony.
In Carl Eugene McDonald v. State of Indiana, 21A-CR-363, grandfather Carl McDonald was arrested during a traffic stop after driving intoxicated with his three granddaughters in the car, ranging in age from 6 months to 6 years old.
McDonald, who has never held a driver’s license, was charged with Level 6 felony operating a vehicle while intoxicated, endangering a person with a passenger less than 18 years old; three counts of Level 6 felony neglect of a dependent; and one count of Class C misdemeanor operating a motor vehicle without ever receiving a license. He was also alleged to be a habitual vehicular substance offender, having accumulated three prior, unrelated but similar vehicular substance offenses.
McDonald pleaded guilty without a plea agreement, and the Cass Superior Court sentenced him to an aggregate, initially-executed term of seven years. It ordered a 60-day suspended sentence for the operating-never-having-been-licensed conviction and ordered McDonald into purposeful incarceration, after the successful completion of which he could petition for a sentence modification.
However, the subsequent written sentencing statement was different from the trial court’s oral sentence — it only listed a 4½-year aggregate executed sentence that imposed two-year sentences for each of the neglect convictions to be served concurrently, as well as 1,642 days as McDonald’s HVSO sentencing enhancement. The statement also said McDonald was sentenced to 730 days for his misdemeanor conviction.
On appeal, McDonald challenged his felony convictions on constitutional and common law double jeopardy grounds, but the Indiana Court of Appeals agreed with the state that McDonald couldn’t challenge the validity of his convictions following his guilty plea.
“This court is bound by the precedent established by our supreme court,” Judge Patricia Riley wrote Friday, citing Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), and Hayes v. State, 906 N.E.2d 819 (Ind. 2009). “… We will follow Tumulty and Hayes until they are modified by our supreme court or legislative action. Accordingly, we dismiss McDonald’s double jeopardy claims without prejudice so that they may be brought through a petition for post-conviction relief if he elects to pursue them.”
But as to his sentencing, the appellate court proceeded with its analysis based on the trial court’s written sentencing order. It agreed with McDonald that the trial court improperly entered his HVSO sentencing enhancement as a separate, consecutive sentence.
“We conclude that the trial court abused its discretion when it failed to specifically attach the enhancement to one of McDonald’s felony convictions and when it imposed the HVSO as a separate, consecutive sentence. Therefore, we reverse that portion of the trial court’s sentencing order and remand so that the trial court may specify which felony conviction it enhanced with its HVSO finding,” Riley wrote.
Additionally, the appellate court agreed with McDonald that, unlike the standard habitual offender statute, the HVSO statute does not contain a provision that it is non-suspendible. It therefore concluded that the trial court’s incorrect understanding of the HVSO statute was improper as a matter of law and constituted an abuse of its discretion.
“Although we find that the trial court abused its discretion, we do not agree with McDonald that remand for resentencing is necessary,” Riley wrote. “… These circumstances indicate to us that the trial court would not have suspended McDonald’s HVSO enhancement, and we are confident that the trial court would have imposed the same sentence had it realized that it could have suspended the HVSO enhancement.”
Lastly, the appellate court remanded so that a corrected abstract of judgment could be issued on the point of McDonald’s suspended sentence.