Lewis v. State
| Decision Date | 06 June 2002 |
| Docket Number | No. 02A05-0112-CR-534.,02A05-0112-CR-534. |
| Citation | 769 N.E.2d 243 |
| Parties | Michael T. LEWIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Robin Hodap-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael Lewis was convicted following a jury trial of unlawful possession of a firearm by a serious violent felon ("unlawful possession by a SVF"), a Class B felony; resisting law enforcement as a Class D felony; resisting law enforcement as a Class A misdemeanor; and failure to stop after an accident causing injury or death, a Class A misdemeanor. Lewis was also found to be an habitual offender, and his sentence for the Class D felony resisting law enforcement conviction was enhanced pursuant to that finding.1 He now appeals his adjudication as an habitual offender and the resulting enhancement of his sentence. The State cross-appeals, claiming an error in sentencing. We affirm and remand.
Lewis raises a single issue for our review, which we restate as whether the State presented sufficient evidence to support the habitual offender finding. In addition, the State raises one issue on cross-appeal, which we restate as whether the trial court erroneously determined that unlawful possession by a SVF is already an enhanced crime that can not be further enhanced by an habitual offender finding.
Lewis was arrested on August 7, 2000, in Fort Wayne, Indiana, following police investigation of a reported "disturbance." Lewis was charged with unlawful possession by a SVF, carrying a handgun without a license as a Class C felony due to a previous felony conviction, and resisting law enforcement as a Class D felony. Lewis was alleged to be an habitual offender, thus enhancing each charge. He was also charged with a count of resisting law enforcement and a count of failure to stop after an accident causing injury or death, both Class A misdemeanors.
Prior to his jury trial, Lewis filed a motion to dismiss the habitual offender allegation as Part II of the unlawful possession by a SVF charge. He alleged that a conviction of unlawful possession by a SVF cannot be enhanced by an habitual offender finding. The trial court took the motion under advisement and the case proceeded to jury trial. The jury found Lewis guilty of all charges, and further found him to be an habitual offender based upon the evidence presented by the State during the enhancement phase of the trial. At the sentencing hearing, the trial court essentially granted Lewis' motion to dismiss the proposed habitual enhancement regarding the unlawful possession by a SVF conviction:
So the court will reiterate the fact that we're entering judgment on Count I, Possession of a Firearm by a Serious Violent Felon, a Class B felony. Count III, Resisting Law Enforcement, a Class D felony. Count IV, Resisting Law Enforcement, a Class A misdemeanor. Count V, Failure to Stop after an Accident, a Class A misdemeanor, and Habitual Offender which attaches to Count III only. It being inappropriate to enhance an already enhanced Count I, Possession of a Firearm by a Serious Violent Felon.
Tr. of Sentencing Hearing at 9-10 (emphasis added). The trial court sentenced Lewis to a total of twenty-seven and one-half years, which includes a maximum sentence of three years for the Class D felony resisting law enforcement conviction enhanced by an additional four and one-half years due to the habitual offender finding. Both parties now appeal.
Lewis contends that the State failed to present sufficient evidence to support the finding that he is an habitual offender.
Our standard of review for sufficiency claims is well settled: we will not reweigh the evidence or assess the credibility of witnesses. Farris v. State, 753 N.E.2d 641, 647 (Ind.2001). Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.
To establish that the defendant is a habitual offender, the State must prove beyond a reasonable doubt that the defendant has been previously convicted of two separate and unrelated felonies. Ind.Code § 35-50-2-8. To be "unrelated," the commission of the second felony must be subsequent to the sentencing for the first, and the sentencing for the second felony must have preceded the commission of the current felony for which the enhanced sentence is being sought. Flint v. State, 750 N.E.2d 340, 341 (Ind.2001). Failure to prove the proper sequencing requires that the habitual offender determination be vacated. Id.
During the habitual offender phase of Lewis' jury trial, the State introduced into evidence two exhibits. Exhibit 25 included a certified copy of an information filed April 18, 1994, charging "Michael T. Lewis" with dealing in a sawed off shotgun, a Class D felony, on or about April 12, 1994. Also part of this exhibit was a certified copy of a judgment of conviction dated December 1, 1994, against "Michael T. Lewis" which shows that the defendant entered a plea of guilty to dealing in a sawed off shotgun and was sentenced to three years confinement with the Indiana Department of Correction.2 Exhibit 26 included a certified copy of an information filed May 5, 1998, charging "Michael T. Lewis a/k/a Shakey a/k/a Little Kulon a/k/a Joseph Omar Lewis" with committing residential entry, a Class D felony, and Criminal Recklessness, also a Class D felony, on or about April 23, 1998. Also included in this exhibit was a certified copy of a judgment of conviction dated May 13, 1999, against "Michael T. Lewis" which shows that the defendant entered a plea of guilty to residential entry and criminal recklessness, both Class D felonies, and was sentenced to a total of two years confinement.3 Based upon testimony from the guilty phase of Lewis' trial, the instant offense occurred on August 7, 2000.
Lewis contends that the State's evidence fails to show that he is the same "Michael T. Lewis" who was charged and convicted in each of the previous proceedings for which it presented documentation. We must disagree. The charging information for the 1994 conviction includes the defendant's social security number and identifying information such as his weight and height. Exhibit 25, Exhibits Volume at 28. The charging informations for the 1999 convictions include the same social security number and the same general identifying information for the defendant as the 1994 information. Exhibit 26, Ex. Vol. at 29. Finally, the charging informations for the instant offenses show the same social security number and general identifying information as the 1994 and 1999 informations.4 This is sufficient evidence upon which to determine that the "Michael T. Lewis" in each charging information is the same individual and that he was convicted of two prior unrelated felonies. The habitual offender determination was supported by sufficient evidence.
On cross-appeal, the State contends that the trial court erred in granting Lewis' motion to dismiss the habitual offender enhancement as it pertained to the unlawful possession by a SVF charge.5
A reviewing court will not revise a sentence authorized by statute except where such sentence is "manifestly unreasonable in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). Thus, a reviewing court will overturn the sentence imposed by the trial court only where there is an abuse of discretion. Smith v. State, 580 N.E.2d 298, 302-03 (Ind.Ct.App.1991), trans. denied.
In his motion to dismiss the habitual offender allegation as it pertained to the unlawful possession by a SVF charge, Lewis contended that the unlawful possession by a SVF charge is part of a progressive punishment scheme and that it is improper to further enhance the charge by an habitual offender finding. The trial court agreed, stating that it was "inappropriate to enhance an already enhanced Count I, Possession of a Firearm by a Serious Violent Felon." Accordingly, the trial court enhanced Lewis' sentence for the felony resisting law enforcement conviction pursuant to the habitual offender finding. The State contends that the trial court made a mistake of law in stating that it could not enhance Lewis' sentence for unlawful possession by a SVF.
Lewis cites Ross v. State, 729 N.E.2d 113 (Ind.2000), in support of his position that the habitual offender enhancement cannot be applied to the unlawful possession by a SVF conviction. In Ross, the defendant was convicted of carrying a handgun without a license as a Class A misdemeanor. That conviction was then enhanced to a Class C felony because the defendant had a prior felony conviction within the previous fifteen years. He was further adjudged to be an habitual offender. He was sentenced to eight years for the felony handgun conviction, enhanced by an additional ten years pursuant to the habitual offender finding. The defendant appealed, arguing that his sentence could not be enhanced under two different sentence enhancement schemes. The supreme court agreed, noting that the handgun statute, Indiana Code section 35-47-2-23, is the more detailed and specific statute because it contains a more severe penalty for a repeat violation and for specific circumstances, whereas the general habitual offender statute, Indiana Code section 35-50-2-8, "remains a general prohibition on repeat offenses regardless of the activity ... involved." Id. at 116 (quoting Freeman v. State, 658...
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