Jones v. State

• Citation: 569 N.E.2d 975
• Decision Date: 15 April 1991
• Docket Number: No. 48A02-8912-CR-638,48A02-8912-CR-638
• Parties: David M. JONES, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Court of Appeals of Indiana

Page 975

569 N.E.2d 975

David M. JONES, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).

No. 48A02-8912-CR-638.

Court of Appeals of Indiana,

Second District.

April 15, 1991.

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-appellant David Jones (Jones) appeals from his conviction for recklessness ¹ and the determination that he was an habitual class D felony offender, ² claiming that the evidence was insufficient to sustain his conviction, that the trial court erred when it admitted evidence, that he was charged and sentenced under the wrong habitual offender statute, and that he received ineffective assistance of counsel.

We affirm.

FACTS

The facts most favorable to the jury's verdict reveal that the victim, Jones' ex-wife, saw Jones at her place of employment, a bar, on July 19, 1988. Jones had a bulge in his shirt which appeared to be a gun. Jones left the bar and telephoned the victim, threatening to shoot her. The victim notified the police of Jones' threat, and she left work early.

On the way home, while stopped at a stop sign, the victim noticed Jones in a car in the adjoining lane. Jones was sitting with his head and torso out of the vehicle, which was being driven by a young woman and which also contained one other passenger. Jones pointed his gun at the victim and fired three shots in the direction of her car. The car then sped away.

Jones was arrested and charged with recklessness, a class D felony. Jones was also alleged to be an habitual class D felony offender on the basis of his 1979 conviction for possession of marijuana, a class D felony, and his 1982 conviction for operating a motor vehicle while an habitual traffic offender, a class D felony. After a trial by jury on August 7th and 8th, 1989, Jones was convicted on both counts and he received a four-year term of imprisonment for his recklessness conviction, enhanced by eight years due to his status as an habitual class D felony offender, for a total term of imprisonment of twelve years. Thus he was sentenced under the D Felony Statute, infra.

ISSUES

1. Whether Jones was prosecuted under the proper habitual offender statute?

2. Whether the evidence was sufficient to sustain Jones' recklessness conviction?

3. Whether the trial court properly sustained the State's objection during cross-examination?

4. Whether the trial court properly overruled Jones' objection during questioning of victim?

5. Whether the trial court erred during rebuttal and surrebuttal testimony?

6. Whether Jones received ineffective assistance of counsel?

DECISION

ISSUE ONE--Was Jones prosecuted under the proper habitual offender statute?

PARTIES' CONTENTIONS--Jones argues that the habitual offender statute under which he was prosecuted did not apply to him because his prior felonies were committed before that statute was enacted in 1985, citing Moncrief v. State (1988), Ind.App. 525 N.E.2d 1286. The state responds that the statute applies to Jones because the underlying felony with which he was charged was committed on July 19th, 1988, after the effective date of the statute.

CONCLUSION--Jones was prosecuted under the proper statute.

The resolution of Jones' argument is aided by historical perspective. We must examine the 1984 habitual offender statute, its 1985 reincarnation and the 1985 habitual class D felony offender statute which was added by a 1985 amendment to the habitual offender statute. We must also consider the effect of an uncodified savings clause included in the 1985 amending legislation.

In 1984, IC 35-50-2-8 (1984) [hereinafter referred to as the Habitual Offender Statute] provided for sentencing defendants as habitual offenders without distinguishing between different classes of felonies.

In 1985, the legislature enacted P.L. 328-1985, which added the habitual class D felony offender statute, IC 35-50-2-7.1 (1985) [hereinafter referred to as the D Felony Statute], and which amended the Habitual Offender Statute. The D Felony Statute created a new class of habitual offender, the "habitual Class D felony offender," which consisted of defendants who had an underlying class D felony conviction and whose prior, unrelated enhancing felonies were also class D felonies. The D Felony Statute reduced the maximum enhancement from 30 years under the 1984 Habitual Offender Statute to 8 years. The Habitual Offender Statute was modified and amended with section (h), which provided: "A person may not be sentenced as an habitual offender under this section if all of the felonies relied upon for sentencing the person as an habitual offender are Class D felonies." IC 35-50-2-8(h) (emphasis supplied).

The enacting legislation, P.L. 328-1985, contained the following uncodified savings clause:

"SECTION 3. (a) The addition of IC 35-50-2-7.1 and the amendment of IC 35-50-2-8 by this act do not affect any:

(1) rights or liabilities accrued;

(2) penalties incurred; or

(3) proceedings begun;

before September 1, 1985. The rights, liabilities, and proceedings are continued and punishments, penalties, or forfeitures shall be imposed and enforced under IC 35-50-2-8 as if this act had not been enacted.

(b) If all of the felonies relied upon for sentencing a person as an habitual offender under IC 35-50-2-8 are felonies that were committed before September 1, 1985, the felonies shall be prosecuted and remain punishable under IC 35-50-2-8 as if this act had not been enacted." (Emphasis supplied).

Jones asserts that section (b) [hereinafter referred to as the Savings Clause] prohibits the State from prosecuting and sentencing him as an habitual class D felony offender because his prior class D felony convictions were committed before September 1, 1985 (i.e. 1979 and 1982). Therefore, he claims, he was tried and sentenced under the wrong statute and his sentence must be vacated.

In reviewing a statute, we must give effect and meaning to every word, if possible, and no part should be held meaningless if it can be reconciled with the rest of the statute. Guinn v. Light (1990), Ind., 558 N.E.2d 821; Spaulding v. Int'l Bakers Serv., Inc. (1990), Ind., 550 N.E.2d 307. A statute should not be viewed as if the reader is peering at it through a keyhole. It must be read with its companions.

We first observe that the Savings Clause, by its own terms, applies only when sentencing a person under the Habitual Offender Statute. Jones was sentenced under the D Felony Statute, so by a plain reading of the statute, it would appear the Savings Clause is not relevant to Jones' sentencing.

Reading the Savings Clause as Jones suggests would make meaningless, and give no effect to, the phrase "under IC 35-50-2-8" used in the clause. As it is possible to give meaning to that phrase by applying the Savings Clause only to defendants sentenced under the Habitual Offender Statute, we must do so. Guinn, supra; Spaulding, supra. Therefore, we conclude that because Jones was sentenced under the D Felony Statute, the Savings Clause did not apply and that he was properly sentenced.

Even if we concluded the Savings Clause applied to sentencing under the D Felony Statute, the State persuasively argues that Jones' convictions do not satisfy the Savings Clause. The State points out that under the Savings Clause, all of the felonies relied upon for sentencing must have been committed before September 1, 1985. Jones' underlying conviction for recklessness, a class D felony, was committed on July 19, 1988. As Jones' underlying felony, which was enhanced due to his prior, unrelated class D felony convictions, was not committed before September 1, 1985, the Savings Clause does not apply to Jones.

A fair reading of both the D Felony Statute and the Habitual Offender Statute together indicates that "all," as used in the Savings Clause, refers to a defendant's underlying felony conviction as well as the enhancing felony convictions. This is in keeping with section (h) of the Habitual Offender Statute which provides that a defendant could not be sentenced under the Habitual Offender Statute if "all of the felonies relied upon for sentencing the person as an habitual offender are Class D felonies." IC 35-50-2-8(h) (emphasis supplied).

The D Felony Statute applies only to defendants whose underlying felony convictions, as well as their enhancing convictions, are class D felonies. IC 35-50-2-7.1(b). Section (h) of the Habitual Offender Statute was added to provide for mutually exclusive habitual offender statutes, so that defendants entitled to the less severe sentencing provisions of the D Felony Statute would not also be eligible to be sentenced under the Habitual Offender Statute as well. The D Felony Statute and the Habitual Offender Statute are in pari materia and should be construed together so as to produce a harmonious statutory scheme. Sanders v. State (1984), Ind., 466 N.E.2d 424; Adult Group Properties, Ltd. v. Imler (1987), Ind.App., 505 N.E.2d 459, trans. denied. The only harmonious construction of these two statutes requires that "all," as used in section (h), be construed as including underlying felonies.

This construction of "all" in section (h) was recognized by the supreme court in Moredock v. State (1987), Ind., 514 N.E.2d 1247. In Moredock, the defendant was convicted of three underlying class B felonies and was adjudged an habitual offender on the basis of two prior class D felony convictions. The defendant argued that section (h) of the Habitual Offender Statute precluded his habitual offender determination because it was based on two prior class D felony convictions. The supreme court rejected the defendant's contention:

"Moredock is incorrect that subsection (h) applies to him since all of the felonies relied upon for sentencing him were not class D felonies. Though the two previous unrelated felonies were...