Cain v. State
| Decision Date | 29 September 1992 |
| Docket Number | No. 79A02-9012-CR-00758,79A02-9012-CR-00758 |
| Citation | 599 N.E.2d 625 |
| Parties | Michael Hill CAIN, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Robert C. Perry, Steckler, Perry and Ryan, Indianapolis, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
OPINION ON PETITION FOR REHEARING
On July 2, 1992, we vacated Appellant Michael Hill Cain's conviction upon one count of Robbery while armed with a deadly weapon, 1 and affirmed his conviction upon the four remaining counts challenged in his appeal. Cain v. State (1992) 2d Dist.Ind.App., 594 N.E.2d 835. In addition, we affirmed Cain's sentencing as an habitual offender pursuant to I.C. 35-50-2-8 (Burns Code Ed.Supp.1992). Id. Cain petitioned for rehearing, asserting inter alia, that this court erred in failing to address an apparent sentencing error upon the merits. 2 We now grant the petition for the purpose of addressing this issue, and deny the petition in all other respects.
In charging Cain as an habitual offender, the State relied upon three convictions from foreign jurisdictions. In responding to Cain's sufficiency challenge upon the habitual offender determination, we held that I.C. 35-50-2-1 (Burns Code Ed.Supp.1992) authorized the State to treat these convictions as Class D felonies for habitual offender purposes. Cain asserts that the trial court sentenced him under the erroneous belief that it was obligated to enhance his sentence by the full thirty years, whereas I.C. 35-50-2-8(e) authorized the court to reduce the sentence enhancement by as much as ten years because the prior unrelated felonies counted as Class D felonies. Cain concludes that we should remand for resentencing so that the trial court may appropriately exercise its discretion.
I.C. 35-50-2-8(e) provides in pertinent part:
(Emphasis supplied.)
Reduction of a sentence under sub-section (e) is permissive, and is left to the discretion of the trial court. Moredock v. State (1987) Ind., 514 N.E.2d 1247, 1251-52.
In sentencing Cain, the trial court stated:
Record at 1525-26. (Emphasis supplied.)
This statement makes it clear that the trial court believed that the habitual offender determination obligated...
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