COA upholds habitual offender enhancement as timely filed

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A habitual offender enhancement that was filed 21 days before a trial that was eventually rescheduled was not untimely, the Court of Appeals of Indiana has ruled.

In 2019, Michael Owens punched his girlfriend, Candiance Day, twice and shot her in the face, back and leg. Day survived the attack, but it left her blind in one eye.

Owens was charged with attempted murder, aggravated battery and unlawful possession of a firearm by a serious violent felon.

The jury trial was originally set for April 2019 but was reset multiple times due to court congestion and continuances.

The state amended the charges 21 days before trial to allege Owens was a habitual offender. Two weeks later, the trial was continued again because Owens needed additional time to secure witnesses.

The jury trial finally began on Aug. 10, 2021. Owens moved to dismiss the habitual offender enhancement as untimely, but the Marion Superior Court denied the motion, noting the amended information had been filed for over a year at that point.

Owens was convicted of all three charges and was found to be a habitual offender.

At the sentencing hearing, the trial court merged the aggravated battery and attempted murder convictions due to double jeopardy concerns. Owens was then sentenced to an aggregate, enhanced term of 40 years in prison.

Owens appealed the trial court’s denial of his motion to dismiss the habitual offender enhancement.  He pointed to Indiana Code § 35-34-1-5(e), which provides that a charging amendment must be made at least 30 days “before the commencement of trial.”

Owens argued the phrase “before the commencement of trial” meant the trial date on the books when the habitual offender enhancement was filed. Because the enhancement was not filed until 21 days before the scheduled trial date at the time, it was untimely, he claimed.

“The State counters that the phrase means before the beginning of trial, whenever that may occur,” Judge Leanna Weissmann wrote. “We agree with the State.”

“Though his trial was then-scheduled to begin 21 days later, it did not actually begin for another 18 months,” Weissmann wrote. “Accordingly, the amendment was filed within 30 days of the commencement of Owens’s trial. Because the amendment was timely, the State was not required to show good cause under Indiana Code § 35-34-1-5(e), and the trial court did not err in denying Owens’s motion to dismiss the habitual offender enhancement.”

The appellate court also addressed the trial court’s attempt to resolve its double jeopardy concerns by merging without vacating Owen’s conviction for aggravated battery.

“Because it appears the trial court entered judgment of conviction on the aggravated battery charge, merging the offenses was not enough to resolve the court’s double jeopardy concern,” Weissmann wrote. “As the parties do not contest the trial court’s double jeopardy determination, we remand this case to the trial court to vacate the ‘merged’ conviction for aggravated battery in both its sentencing order and abstract of judgment.”

The case is Michael T. Owens v. State of Indiana, 21A-CR-1900.

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