Afanador v. State
| Decision Date | 28 January 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-1000 |
| Citation | 181 N.E.3d 462 |
| Parties | Scott AFANADOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Scott Afanador appeals following his conviction of Level 5 felony automobile theft1 and the finding that he is a habitual offender.2 Afanador argues the elevation of his automobile theft conviction from a Level 6 to a Level 5 felony based on his prior conviction of automobile theft, and the further enhancement of his sentence for that elevated conviction due to his habitual offender status, resulted in an improper double enhancement. To reach this conclusion, Afanador cites the definition of "unrelated felony" in the habitual offender statute, Indiana Code § 35-50-2-8(f), which provides that felonies are "unrelated" only if a subsequent offense is committed after conviction of and sentencing for an earlier offense, and Afanador points out that he was convicted of the prior automobile theft used to enhance his conviction on the same day that he was convicted of one of the predicate felonies for his habitual offender enhancement, such that those two prior crimes are not "unrelated" under the definition provided in the habitual offender statute.
[2] The State, in contrast, argues the double enhancement of Afanador's conviction is not improper because his prior automobile theft conviction did not arise as part of the same res gestae as either of the predicate felonies for his habitual offender enhancement. In support, the State cites Dye v. State , 984 N.E.2d 625 (Ind. 2013) (hereinafter " Dye II "), which held the State could not "support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon." Id. at 630.
[3] Afanador's argument is a request that we expand our Indiana Supreme Court's pronouncement in Dye II of the circumstances that cause a double enhancement to be improper. If such expansion is to occur, we believe it lies within the province of our Supreme Court to modify Dye II , and we accordingly affirm Afanador's double enhancement.
[4] On January 25, 2002, Afanador was convicted of Forgery, a Class C felony, in Monroe Circuit Court under cause number 53C05-0002-CF-00065 ("Predicate-1 Forgery"). On July 14, 2012, Afanador committed the offense of carrying a handgun without a license, a Class C felony. He was charged in Monroe Circuit Court under cause number 53C05-1207-FB-000669, and he was convicted and sentenced on November 26, 2019 ("Predicate-2 Handgun"). In July of 2017, Afanador committed Level 6 felony automobile theft. He was charged in Monroe Circuit Court under cause number 53C05-1707-F6-000726, and he was convicted and sentenced on November 26, 2019 ("Predicate-3 Auto Theft"). Of particular importance to this appeal is the fact that, although the criminal act underlying Predicate-2 Handgun occurred five years before the criminal act underlying Predicate-3 Auto Theft, the trial court entered the convictions and sentences for Predicate-2 Handgun and Predicate-3 Auto Theft on the same day in 2019.
[5] Afanador was arrested in Lawrence County on November 4, 2019, and charged with Level 2 felony dealing in methamphetamine,3 Level 3 felony possession of methamphetamine,4 and Level 6 felony possession of a syringe5 under cause number 47D01-1911-F2-002116 ("Cause 2116").6 The State also filed notice of its intent to seek a habitual offender sentencing enhancement. The trial court eventually released Afanador on his own recognizance to await trial.
[6] During the early morning hours of August 6, 2020, Sergeant Lonnie Johnson of the Lawrence County Sheriff's Department responded to a complaint that a suspicious vehicle was parked outside a house on State Road 150 in Bedford, Indiana. The homeowner called 911 after she saw someone exit the vehicle and knock on her door. She did not answer the door, and the person walked back to the vehicle and started honking the horn. Sergeant Johnson found Afanador driving the suspicious vehicle. Sergeant Johnson learned the vehicle had been reported stolen from a Bloomington parking lot two days earlier, and he arrested Afanador. Security camera footage from the parking lot confirmed that someone who looked like Afanador had stolen the vehicle.
[7] The State charged Afanador with Level 6 felony automobile theft under cause number 47D01-2008-F5-001189 ("Cause 1189"). The State also alleged the offense should be elevated to a Level 5 felony pursuant to Indiana Code section 35-43-4-2(2)(C) because of Afanador's Predicate-3 Auto Theft conviction. The State then filed notice of its intent to seek a habitual offender sentencing enhancement.
[8] Back in Cause 2116, the trial court held a four-day jury trial from November 30, 2020, to December 3, 2020. At the conclusion of the trial, the jury returned a verdict of guilty on all counts. The State moved to dismiss its allegation that Afanador qualified for the habitual offender sentencing enhancement in Cause 2116, and the trial court dismissed the charge.
[9] Then, in Cause 1189, the trial court held a three-day jury trial from March 29, 2021, to March 31, 2021. The jury found Afanador guilty of Level 6 felony automobile theft. Afanador waived his right to a jury trial on each of the enhancements. The State submitted a certified copy of the judgment of conviction for Predicate-3 Auto Theft, which the trial court used to elevate Afanador's instant automobile theft conviction to a Level 5 felony. As to the habitual offender allegation, the State submitted two judgments of conviction. The first was for Predicate-1 Forgery and the second was for Predicate-2 Handgun. The trial court found Afanador to be a habitual offender.
[10] The trial court held a combined sentencing hearing for Cause 2116 and Cause 1189 on April 27, 2021. In Cause 2116, the trial court sentenced Afanador to a term of twenty-two years for his Level 2 felony dealing methamphetamine conviction, with two years suspended to probation, and a concurrent term of two-and-a-half years for his Level 6 felony illegal possession of a syringe conviction.7 In Cause 1189, the trial court sentenced Afanador to a term of five years for his Level 5 felony automobile theft conviction, and the trial court enhanced Afanador's sentence by a period of four years because of the habitual offender finding. The trial court ordered Afanador's sentence in Cause 1189 to run consecutive to his sentence in Cause 2116, for an aggregate term of thirty-one years, with two years suspended to probation.
[11] Afanador's arguments herein concern only Cause 1189, in which his conviction of automobile theft was elevated to a Level 5 felony and his sentence therefor was enhanced by a habitual offender finding. He argues he received an impermissible double enhancement because his Predicate-2 Handgun conviction and his Predicate-3 Auto Theft conviction are not "unrelated" in the context of Indiana's enhancement law and, therefore, the convictions cannot be used simultaneously to support two sentence enhancements on a single conviction. (Appellant's Br. at 13.) The State asserts the two sentence enhancements were permissible because "[t]he two prior convictions Afanador argues were related were based on crimes committed five years apart, charged under two different cause numbers, and had none of the same operative facts." (Appellee's Br. at 7.)
[12] Because the parties present a pure question of law, we review the trial court's ruling de novo. Ramirez v. Wilson , 901 N.E.2d 1, 2 (Ind. Ct. App. 2009), trans. denied. We thus review the issue without affording any deference to the trial court's decision. Shaffer v. State , 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003). The General Assembly bears primary responsibility for determining appropriate criminal penalties, Hazelwood v. State , 3 N.E.3d 39, 42 (Ind. Ct. App. 2014), reh'g denied , and has provided "three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive-penalty statutes." Dye v. State , 972 N.E.2d 853, 857 (Ind. 2012) (" Dye-I "), aff'd on reh'g , 984 N.E.2d 625 (Ind. 2013). Indiana's general habitual offender statute states:
The state may seek to have a person sentenced as a habitual offender for a felony by alleging ... the person has accumulated the required number of prior unrelated felony convictions in accordance with this section.
Ind. Code § 35-50-2-8(a). "Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses." Dye I, 972 N.E.2d at 857. Progressive-penalty statutes "elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense." Id. A double enhancement issue comes about when "more than one of these statutes is applied to the defendant at the same time." Id. Double enhancements are impermissible "unless there is explicit legislative direction authorizing them." Id. at 856.
[13] In this case, Afanador's Level 6 felony auto theft conviction was elevated to a Level 5 felony by a progressive-penalty statute and then his sentence was enhanced by the habitual offender finding. Afanador's argument centers around the text of the general habitual offender statute, which provides that if the State seeks a habitual offender sentencing enhancement for a person convicted of a Level 5 felony, such as Afanador, the State must prove the person has two prior "unrelated" felony...
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