Collins v. State, 79A02-9005-CR-00290
| Decision Date | 30 December 1991 |
| Docket Number | No. 79A02-9005-CR-00290,79A02-9005-CR-00290 |
| Citation | 583 N.E.2d 761 |
| Parties | Larry J. COLLINS, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff). |
| Court | Indiana Appellate Court |
Lisa V. Schrader, Heide, Sande, Deets, Kennedy, Schrader & Antalis, Lafayette, for appellant.
Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant-defendant Larry J. Collins (Collins) appeals his convictions for operating a vehicle with a previous conviction for driving while intoxicated, 1 operating a vehicle after being determined to be an habitual traffic offender, 2 and the court's finding that he was an habitual substance offender. 3
We affirm the convictions but remand for resentencing.
The facts which most support the judgment are that on February 21, 1988, West Lafayette police officer John Cox (Cox) stopped Collins for speeding. Upon approaching the vehicle, Cox requested that Collins step out of the car and produce identification. Collins responded by cursing at Cox telling him he had no right to stop him. Cox smelled alcohol on Collins' breath and noticed that his eyes were bloodshot and watery, his speech was slurred, and he was unsteady on his feet.
Because Collins fumbled through his pants' pocket and wallet before eventually Collins was charged with driving while intoxicated (Count I), driving while intoxicated with a previous conviction for driving while intoxicated (Count II), being an habitual substance offender (Count III), and driving after being determined to be an habitual traffic offender (Count IV). The charges were severed and a jury trial was held on February 1, 1990 on Count I, following which Collins was found guilty. 5 The remaining three counts were tried to the bench with the same result. Subsequently, the court sentenced Collins to three years on Counts II and IV and enhanced Count II by three years due to the determination that Collins, who did not have a felony conviction prior to the instant felony, was also an habitual substance offender. The court ordered the sentences on Counts II and IV to run consecutively for a total of nine years and fined Collins $1,000. The Court then suspended six years of the sentence and the fine, and ordered Collins to serve the remaining three years.
producing his driver's license, Cox requested that Collins recite the alphabet. Collins was only able to reach the letter "c", and continued to be uncooperative and challenged Cox's right to "bother him." Cox then advised Collins of Indiana's Implied Consent Law 4 and requested that he submit to a breath test. Collins refused the breath test at the scene and again at the police station
On appeal, Collins raises four issues which we restate as:
1. Did the trial court err in finding that the enhancement imposed for being an habitual substance offender could not be suspended, even though the sentence for the underlying offense was suspendable?
2. Did the State present sufficient evidence that Collins knew he had been determined to be an habitual traffic offender prior to being stopped for speeding?
3. Was the evidence sufficient to support a conviction of operating a vehicle while intoxicated?
4. Was Collins' trial counsel ineffective for failing to move for a mistrial or an admonishment when Cox (the police officer) testified he had previously given testimony against Collins?
ISSUE ONE--Did the trial court err in finding that the enhancement of Collins' sentence under the habitual substance offender statute could not be suspended even though the underlying sentence for the felony conviction was suspendable?
PARTIES' CONTENTIONS--Collins argues that an habitual substance offender determination is not a separate conviction and when the underlying felony is suspendable, the enhancement of that sentence is suspendable as well. The State says an enhancement of a sentence due to an habitual substance offender determination is never suspendable.
CONCLUSION--The enhancement of Collins' sentence under the habitual substance offender statute is suspendable.
This issue was first addressed in Devaney v. State (1991), Ind.App., 578 N.E.2d 386. In that case, the defendant had been convicted of operating a vehicle while intoxicated with a prior conviction and operating while an habitual traffic violator. The defendant had also been determined to be an habitual substance offender. Following the trial court's decision to suspend a portion of the enhancement of the defendant's sentence under the habitual substance offender statute, the State sought and received from the Indiana Supreme Court an Alternative Writ of Mandamus ordering the trial court to resentence the defendant "without suspending a portion of the habitual substance offender sentence enhancement." The trial judge, however, suspended a portion of the enhanced sentenced nonetheless.
On appeal, this court concluded that the trial court erred in suspending the enhancement of Devaney's sentence. In reaching its conclusion a majority of the court relied not only on the Writ, but also decided that the purpose and mandatory language of the habitual substance offender statute prohibited the suspension of any enhancement under the statute. In a concurring opinion, Judge Shields concluded that the majority opinion had gone too far and indicated that under certain situations the enhancement of the sentence could be suspended.
This case is one such situation. While in Devaney, the defendant's conviction was his second felony conviction and the sentence for that second felony was non-suspendable, this case involves Collins' first felony conviction, for which the sentence is suspendable. See IC 35-50-2-2. The question in common to both Devaney and this case is whether an enhancement of the defendant's sentence for the felony conviction can be suspended.
The State answers the question in the negative, citing State v. Williams (1982), Ind., 430 N.E.2d 756, for the proposition that an enhancement of a sentence under the general habitual offender statute 6 is always non-suspendable, which proposition the State argues should also apply to an enhancement under the habitual substance offender statute. Collins, on the other hand, reads Williams for the proposition that the suspendability of an enhancement of a sentence depends upon whether the underlying sentence is suspendable.
In Williams, the defendant was convicted of forgery and determined to be an habitual offender. The trial judge sentenced Williams to eight years imprisonment for the forgery charge and thirty additional years for being an habitual offender, which enhancement he ordered suspended.
On appeal, the supreme court determined that the trial court erred by treating the habitual offender determination as a separate felony conviction:
Id. at 758 (quoting Wise v. State (1980), 272 Ind. 498, 400 N.E.2d 114, 117) (emphasis in original).
Having determined that a sentence under the general habitual offender statute is not a separate sentence but rather attaches to and enhances the underlying sentence, the court then turned to IC 35-50-2-2 (1979), to see if the sentence for the underlying felony could be suspended. That statute then provided:
The Court in Williams concluded that because there must have been a prior unrelated felony in order for there to have been an habitual offender determination, the sentence to which the enhancement was being attached could not have been suspended under IC 35-50-2-2. 7 Thus, the Court reasoned, an enhancement of a sentence under the general habitual offender statute could not be suspended:
Id. at 758. (emphasis supplied).
So an enhanced sentence is to be treated as one sentence and the suspendability of that sentence requires an application of IC 35-50-2-2.
Unlike in Williams and Devaney, Collins was being sentenced for his first felony conviction and neither party disputes that his sentence for that conviction is properly suspendable under IC 35-50-2-2. As the enhancement of Collins' sentence, unlike the enhancements in Williams and Devaney, is being attached to a suspendable offense, the enhancement is likewise suspendable. See Marsillett v. State (1986), Ind., 495 N.E.2d 699; Williams, supra. The trial judge erroneously believed the three year enhancement of Collins' sentence was not suspendable, record at 440, so this matter is remanded for reconsideration of Collins' sentence.
ISSUE TWO--Did the State present sufficient evidence that Collins knew he had been determined to be an habitual traffic offender prior to his being stopped?
PARTIES' CONTENTIONS--Collins claims the State failed to prove he had knowledge of his status as an habitual traffic offender. The State claims that a copy of the letter notifying Collins of the classification and revocation of his license, as well as the testimony of a BMV...
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...1045, 1048 (Ind.2001), and a sentence enhanced by the habitual offender finding is to be treated as one sentence. Collins v. State, 583 N.E.2d 761, 765 (Ind. Ct.App.1991).5 Therefore, the State reasons, the trial court was obliged to require that Smith's sentences, including both enhancemen......
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