Hatchett v. State, 49A05-0007-CR-295.

• Citation: 740 N.E.2d 920
• Decision Date: 20 December 2000
• Docket Number: No. 49A05-0007-CR-295.,49A05-0007-CR-295.
• Parties: Vincent E. HATCHETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

740 N.E.2d 920

Vincent E. HATCHETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0007-CR-295.

Court of Appeals of Indiana.

December 20, 2000.

Transfer Denied March 15, 2001.

Patricia Caress McMath, Indianapolis, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant Vincent E. Hatchett ("Hatchett") appeals his convictions for unlawful possession of a firearm by a serious violent felon¹ as a Class B felony and carrying a handgun without a license² as a Class A misdemeanor. We affirm in part and remand in part.

Issues

Hatchett raises five issues for review, which we restate as follows:

I. whether he was entitled to a bifurcated trial on his serious violent felon ("SVF") charge;

II. whether the punishment mandated by Indiana Code Section 35-47-4-5 ("the SVF statute") is disproportionate to the nature of the offense under Article I, Section 16 of the Indiana Constitution;

III. whether the SVF statute violates the privileges and immunities clause under Article I, Section 23 of the Indiana Constitution;

IV. whether his convictions and sentences violate the double jeopardy clause under Article I, Section 14 of the Indiana Constitution; and

V. whether the trial court relied on improper aggravating factors in imposing an enhanced sentence.

Facts and Procedural History

On August 30, 1999, police arrested Hatchett after he chased fourteen-year-old L.W. outside her grandmother's apartment while carrying a handgun. The State charged Hatchett with unlawful possession of a handgun by a serious violent felon and with carrying a handgun without a license. At his bench trial, Hatchett stipulated to having a 1982 robbery conviction. The trial court found Hatchett guilty as charged and imposed a fourteen-year sentence on the SVF conviction, with five years thereof suspended, and a concurrent one-year executed sentence on the handgun conviction. The trial court also sentenced Hatchett to three years of probation.

Discussion and Decision

I. Bifurcated Trial

Hatchett asserts that the SVF statute violates the Fifth and Sixth Amendments to the United States Constitution and Article I, Section 13 of the Indiana Constitution because it precludes bifurcation of the firearm possession charge from the serious violent felon determination.³ Indiana Code Section 35-47-4-5 reads in relevant part as follows:

(a) As used in this section, "serious violent felon" means a person who has been convicted of:

(1) committing a serious violent felony in:

(A) Indiana; or

...

(2) attempting to commit or conspiring to commit a serious violent felony in:

(A) Indiana[.]

(b) As used in this section, "serious violent felony" means:

[list of twenty-six felonies, including murder, rape, robbery, and dealing in cocaine].

(c) A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony.

We first note that Hatchett has waived any claim under the federal constitution because he provides no authority regarding any applicable principles and offers no substantive analysis or argument. See Dunlop v. State, 724 N.E.2d 592, 596 n. 6 (Ind.2000)

(citing, inter alia, Ind. Appellate Rule 8.3(A)(7)). More dispositively, Hatchett has waived consideration of this issue because he failed to object to the lack of bifurcated proceedings at trial. See Nasser v. State, 727 N.E.2d 1105, 1108-09 (Ind.Ct.App.2000) (waiving appellant's argument that he was entitled to bifurcated proceedings for a driving while suspended charge where he failed to "object to the nature of the proceedings"), trans. denied;⁴

see also Robles v. State, 705 N.E.2d 183, 187 (Ind.Ct.App.1998) ("Additionally, we have determined that a party may not sit idly by, permit the court to act in a claimed erroneous⁵ matter, and then attempt to take advantage of the alleged error at a later time.") (citation omitted).

II. Disproportionate Sentence

Hatchett also contends that the B felony classification of the SVF statute constitutes punishment disproportionate to the severity of the offense in violation of Article I, Section 16 of the Indiana Constitution. We recently addressed this issue in Teer v. State, 738 N.E.2d 283 (Ind.Ct.App. 2000), trans. pending:

Determining the appropriate sentence for a crime is a function properly exercised by the legislature. This court will not disturb the legislature's determination unless there is a showing of clear constitutional infirmity. In other words, we will not set aside a legislatively sanctioned penalty because it might seem too severe. Rather, a sentence may be unconstitutional by reason of its length, if it is so severe and entirely out of proportion to the gravity of the offense committed as "`to shock public sentiment and violate the judgment of a reasonable people.'"

The serious violent felon statute classifies possession of a firearm by a serious and violent felon as a class B felony. Our legislature has determined that the presumptive sentence for a class B felony is ten years, with up to ten years added for aggravating circumstances and up to four years subtracted for mitigating circumstances. IND.CODE § 35-50-2-5. Such a sentencing range does not "shock public sentiment" or "violate the judgment of a reasonable people." Our legislature has prohibited those who have committed serious violent felonies from possessing firearms, presumably, to make it harder for them to continue committing other violent crimes. Consequently, we do not find that a sentencing range of six to twenty years is unconstitutionally disproportionate for possession of a firearm by a serious violent felon.⁶

Id. at 290 (citations omitted). We agree with the Teer court's reasoning and reject Hatchett's argument.

III. Privileges and Immunities

Hatchett next asserts that the SVF statute violates the equal protection clause of the United States Constitution and the privileges and immunities clause of the Indiana Constitution "because it creates and separates a class of individuals and treats them disparately without a rational reason for such distinction." Appellant's Brief at 9. Again, Hatchett has waived any federal constitutional claim by failing even to cite the Fourteenth Amendment, let alone make a separate argument with respect thereto. See Dunlop, 724 N.E.2d at 596 n. 6

. With respect to his state constitutional claim, we turn once more to our decision in Teer:

The Indiana Constitution provides, "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." IND. CONST. art. I, § 23. This provision imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of people. First, the disparate treatment accorded by the legislation must be reasonably related to the inherent characteristics that distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. In determining whether a statute complies with Article I, Section 23, "courts must exercise substantial deference to legislative discretion." The challenger carries the burden "to negative every reasonable basis for the classification."

738 N.E.2d at 288 (citations omitted).

Hatchett contends that "[t]here is no rational basis consistent with the inherent characteristics of the class for creating a separate group of people singled out for unequal treatment." Appellant's Brief at 11. He further notes that "[t]here are crimes strikingly similar to those enumerated in the statute [e.g., pointing a firearm,⁷ criminal recklessness,⁸ and involuntary manslaughter⁹] which are easily deemed `serious violent felonies[,'] but are not included as qualifying felonies." Id.

We note that "`[a] classification having some reasonable basis is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of classification and to exclude all others.'" Our legislature has decided to prohibit gun ownership by those who have committed a serious violent felony. The list of serious violent felonies contains crimes such as murder, rape, carjacking, stalking, and drug dealing among others. Because these crimes often involve violence, the legislature based its comprehensive list on a reasonable distinction. Accordingly, we cannot say that the legislature's method of defining the class of serious violent felons violates the first element of the Article I, Section 23 test. Simply put, the serious violent felon statute's apparent lack of "mathematical nicety," that is, its omission of a few other arguably violent crimes, does not render it unconstitutional.

Teer, 738 N.E.2d at 288-89 (citations omitted). Like Teer, Hatchett fails to address the second prong of the privileges and immunities analysis regarding uniform application of the SVF statute to all similarly situated persons; thus, we need not address his argument further. See id. at 289 (citing App. R. 8.3(A)(7)).

IV. Double Jeopardy

Hatchett argues that his convictions for carrying a handgun without a license and unlawful possession of a firearm by a serious violent felon were based on the same evidentiary facts in violation of Indiana double jeopardy principles. "To show that two challenged offenses constitute the same offense under the actual evidence test of the Indiana Double Jeopardy Clause,¹⁰ the defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Lundberg v. State, 728 N.E.2d 852, 854 (Ind...