Editor’s note: This article has been corrected.
A Logansport man who was charged with drunken driving without a license with his three young grandchildren in his vehicle will be resentenced after the Indiana Supreme Court found “multiple irregularities” in his original sentencing.
Carl Eugene McDonald was charged with Level 6 felony operating a vehicle while intoxicated, endangering a person with a passenger less than 18 years old, three counts Level 6 felony neglect of a dependent and one count of Class C misdemeanor operating a vehicle without ever receiving a license. Additionally, the state alleged McDonald was a habitual vehicle substance offender.
McDonald pleaded guilty to all charges and the HVSO enhancement without a plea agreement.
At the sentencing hearings, the state, McDonald’s counsel and the Cass Superior Court agreed the HVSO enhancement was nonsuspendible. The court entered an order sentencing McDonald to two years on each of the felony convictions and 60 days on the misdemeanor conviction, with all sentences suspended and served concurrently to each other and consecutively to the HVSO sentence.
The trial court then sentenced McDonald to 4½ years on the HVSO enhancement. However, the abstract of judgment differs from the sentencing order by imposing a two-year sentence for the misdemeanor conviction.
This past July, the Court of Appeals of Indiana dismissed McDonald’s double-jeopardy argument and declined to remand for resentencing.
In a Monday per curiam opinion, the state justices summarily affirmed the double jeopardy section of the COA opinion, agreeing that it is “well-established that a defendant who has pleaded guilty may not challenge the validity of his conviction on direct appeal,” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996).
The Supreme Court also affirmed the sentencing section of the opinion but disagreed with the COA’s conclusion that remand for a new sentence is unnecessary.
“The Court of Appeals concluded that the abstract of judgment is incorrect regarding the sentence imposed for operating without a license; the trial court incorrectly entered the HVSO enhancement as a separate, consecutive sentence rather than as an enhancement to a felony conviction, citing I.C. § 9-30-15-5.2(d); and the trial court did not understand the HVSO enhancement could be suspended, comparing Ind. Code § 9-30-15.5-2 with § 35-50-2-8(i),” the justices wrote.
“The Court of Appeals remanded to the trial court to issue a corrected abstract of judgment and to issue a new sentencing order specifying which felony conviction is enhanced by the HVSO finding,” the opinion continued. “But the Court of Appeals concluded that although the trial court did not understand the HVSO enhancement was suspendible, remand for a new sentencing is unnecessary because the Court of Appeals is ‘confident that the trial court would have imposed the same sentence had it realized that it could have suspended the HVSO enhancement.’”
But the justices wrote that they were “not so sure” the trial court would have imposed the same sentence. Thus, the high court remanded to the trial court for resentencing in Carl Eugene McDonald v. State of Indiana, 22S-CR-46.