Hendrix v. State

• Decision Date: 20 December 2001
• Docket Number: No. 57S00-0008-CR-509.,57S00-0008-CR-509.
• Citation: 759 N.E.2d 1045
• Parties: Sandra Marie HENDRIX, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

759 N.E.2d 1045

Sandra Marie HENDRIX, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 57S00-0008-CR-509.

Supreme Court of Indiana.

December 20, 2001.

Susan K. Carpenter, Lorraine L. Rodts, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Defendant Sandra Marie Hendrix was convicted of drug dealing and sentenced to 60 years, including 30 years for being a habitual offender. We find that the State was authorized to seek a general habitual offender enhancement, rather than the habitual substance offender enhancement. However, we remand to the trial court for resentencing because it was under the mistaken impression that the enhancement had to be attached to the most severe felony of which Defendant was convicted.

Background

The facts most favorable to the judgment indicate that defendant sold crack cocaine and marijuana to Carl Kahler. Kahler, a friend of Defendant's, had been charged with theft. He was working as a confidential drug informant in exchange for lenient treatment in his theft case. Kahler arranged a drug transaction with Defendant for August 15, 1998. After the first transaction, Defendant arranged a second transaction to occur on August 28, 1998. During the first transaction, Defendant sold 1.63 grams of crack to Kahler. During the second transaction, Defendant sold Kahler 3.09 grams of crack and 2.1 grams of marijuana.

Defendant was convicted of Dealing in Cocaine, a Class B felony;¹ Dealing in Cocaine, a Class A felony; and Dealing in Marijuana, a Class A misdemeanor.² Defendant was also found to be a habitual offender. She was sentenced to a total of 60 years in prison.

Discussion

I

Defendant contends that she should have been charged as a "habitual substance offender" according to Indiana Code § 35-50-2-8 rather than the harsher habitual offender statute, Indiana Code § 35-50-2-10.

Defendant was charged as a habitual offender under Indiana's general habitual offender statute, which states: "The state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions." Ind.Code § 35-50-2-8(a) (1998).

The statute requires that a person found to be a habitual offender "shall be sentence[d]... to an additional fixed term that is not less that the presumptive sentence for the underlying offense nor more than three (3) times the presumptive sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years." I.C. § 35-50-2-8(e) (1998). Because the presumptive sentence for a Class A felony is 30 years, therefore, where a habitual offender conviction is attached to a Class A felony, the sentence enhancement must be 30 years. I.C. § 35-50-2-4.

Indiana Code § 35-50-2-10, the habitual substance offender statute, is similar to the general habitual offender statute. The statute applies where "the jury ... or the court ... finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated substance offense convictions." I.C. § 35-50-2-10(e). The statute requires that a habitual substance offender be sentenced to an additional three to eight years. I.C. § 35-50-2-10(f). Even where the underlying crime is a Class A felony, the habitual substance offender cannot add more than eight years. Id.

Certain classes of criminals will meet the requirements of both the habitual offender statute and the habitual substance offender statute. The habitual offender statute includes people who have been convicted of three separate felonies. The habitual substance offender statute includes people who have been convicted of three substance offense convictions. An individual who is convicted of three felony substance abuse convictions will, by definition, meet the criteria for both statutes.

We have previously held that where two criminal statutes overlap such that both are appropriate under the circumstances, the prosecutor has the discretion to charge under either statute. See Skinner v. State, 736 N.E.2d 1222, 1222 (Ind.2000). We hold that this principle applies in the habitual offender context as well. Where a defendant could be prosecuted under either the habitual offender statute or the habitual substance offender statute, the prosecutor has discretion to choose either statute.

Although both statutes implicate Defendant, Defendant argues that the legislature intended all substance abuse offenders to be charged under the habitual substance offender statute. Defendant suggests that the "General Assembly intended to punish the recidivism of habitual substance offenders ... more leniently than habitual violators generally." (Appellant's Br. at 8.) Defendant regards the existence of the habitual substance offender statute as a signal of the legislature's intent to treat repeat drug offenders more leniently than those that meet the criteria of the general habitual offender statute: "The very existence of such a mechanism for leniency compels the conclusion that the Indiana legislature intended its application to all those to whom it might reasonably be applied." Id.

The primary rule in statutory construction is to ascertain and give effect to the intent of the legislature. See Chambliss v. State, 746 N.E.2d 73, 77 (Ind.2001); Bartlett v. State, 711 N.E.2d 497, 501 (Ind. 1999). "The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute." Chambliss, 746 N.E.2d at 77.

The plain language of both the habitual offender and habitual substance offender statutes encompass the action of a repeat felony drug offender and there is no reason to believe that the plain language of the substance offender statute does not fully reflect the legislature's intent. The relatively moderate sentencing provisions of the habitual substance offender statute suggests that the legislature intended a certain class of repeat offenders to be treated more leniently. Specifically, any repeat drug offender may be sentenced to an additional three to eight years. This includes misdemeanor drug offenders as well as felony drug offenders. See I.C. § 35-50-2-10(a)(1) ("`Substance offense' means a Class A misdemeanor or a felony in which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime.") (emphasis added). Unlike the habitual substance offense statute, the general habitual offender statute only punishes repeat felons. See I.C. § 35-50-2-8(d). The habitual substance offender statute punishes repeat offenders whether the underlying convictions were misdemeanors or felonies, while the general habitual offender statute is reserved for criminals who have repeatedly been convicted of felonies.

Defendant suggests that the difference between the two statutes reflects the legislature's desire to treat drug offenders more leniently than offenders with multiple convictions for other felonies. The statutes, however, are better explained as part of the legislatures desire to treat felonies more harshly than misdemeanors.³ Where, as in this case, a defendant commits three felony drug offenses, the prosecutor has discretion to use either Indiana Code § 35-50-2-10 or Indiana Code § 35-50-2-8.

II

Defendant contends that the trial court erred in its conclusion that it did not possess the discretion to impose anything other than a thirty-year sentence upon the habitual offender adjudication. (Appellant's Br. at 20.)

During the sentencing hearing, Defendant had requested that the trial court "temper justice with mercy" by imposing the most lenient sentence possible. The trial court sentenced Defendant to a total of 60 years in prison. She received ten years for count I, the Class B felony; and 30 years for count II, the Class A felony. See I.C. §§ 35-50-2-4, 35-50-2-5 (1998). These are the respective presumptive sentences for Class A and Class B felonies. She also received the maximum sentence of one year for Count III, Dealing Marijuana. See I.C. § 35-50-3-2. The court ordered the sentences to be served concurrently.

The trial court also enhanced Defendant's 30 year sentence for Count II, her Class A felony drug conviction, by 30 years. A habitual offender finding does not constitute a separate crime nor does it result in a separate sentence, rather it results in a sentence enhancement imposed upon the conviction of a subsequent felony. See Greer v. State, 680 N.E.2d 526, 527 (Ind.19...