Puckett v. State
| Citation | 843 N.E.2d 959 |
| Decision Date | 16 March 2006 |
| Docket Number | No. 41A010502-PC-59.,41A010502-PC-59. |
| Parties | Jeffrey D. PUCKETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
John P. Wilson, Wilson, Green & Cecere, Greenwood, for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.
Appellant-Defendant, Jeffrey D. Puckett (Puckett), appeals from his convictions for Count I, operating a vehicle while intoxicated, as a Class C misdemeanor, Ind. Code § 9-30-5-2(a); Count V, operating a vehicle while intoxicated with a prior conviction, a Class D felony, I.C. § 9-30-5-3; Count VI, operating a motor vehicle after having been adjudicated an habitual traffic violator, a Class D felony, I.C. § 9-30-10-16; and Count VII, adjudication as an habitual offender, I.C. § 35-50-2-8(a).
We vacate and remand, with instructions.
Puckett raises three issues on appeal, which we restate as the following two issues:
(1) Whether the trial court properly sentenced Puckett; and
(2) Whether the trial court violated Puckett's rights under the Sixth Amendment to the United States Constitution in sentencing him without legal representation.
In addition, as part of our analysis of whether Puckett was properly sentenced, we address the following issue sua sponte: whether the trial court properly merged Puckett's conviction for operating a vehicle while intoxicated, as a Class C misdemeanor, with his conviction for operating a vehicle while intoxicated with a prior conviction, a Class D felony.
On January 30, 2003, the State filed an information charging Puckett with the following:2 Count I, operating a vehicle while intoxicated, as a Class C misdemeanor, I.C. § 9-30-5-2(a); Count II, operating a vehicle while intoxicated, as a Class A misdemeanor, I.C. § 9-30-5-2(b); Count III, operating a vehicle while intoxicated, as a Class C misdemeanor, I.C. § 9-30-5-1(a); Count IV, operating a vehicle while intoxicated, as a Class A misdemeanor, I.C. § 9-30-5-1(b); Count V, operating a vehicle while intoxicated with a prior conviction, a Class D felony, I.C. § 9-30-5-3; Count VI, operating a motor vehicle after having been adjudicated an habitual traffic violator, a Class D felony, I.C. § 9-30-10-16; and Count VII, alleging Puckett was an habitual offender, I.C. § 35-50-2-8(a).3
On July 30, 2003, a plea hearing was held and a plea agreement was submitted to the trial court whereby Puckett agreed to plead guilty to Counts I, V, VI, and VII in exchange for the dismissal of the remaining counts. At this hearing, Puckett's attorney stated on the record that he advised Puckett to not enter into the plea agreement. On September 24, 2003, the trial court accepted Puckett's guilty pleas. Also, on September 24, 2003, before conducting the sentencing hearing, the trial court granted a motion permitting Puckett's counsel to withdraw. The trial court then proceeded to sentence Puckett.
Merging Puckett's conviction on Count I with his conviction on Count V, the trial court sentenced Puckett to three years imprisonment on Count V, operating a vehicle while intoxicated with a prior conviction, three years imprisonment on Count VI, operating a motor vehicle after having been adjudicated an habitual traffic violator, and four and one-half years imprisonment, with two years suspended, on Count VII, for his adjudication as an habitual offender. The trial court ordered that all sentences be served consecutively at the Department of Correction.
On March 16, 2004, Puckett filed a Motion to Correct Erroneous Sentence, which the trial court denied on March 25, 2004. On April 27, 2004, Puckett filed a Petition for Post-Conviction Relief (PCR petition). On January 3, 2005, the trial court entered an order denying in part, and granting in part, Puckett's PCR petition. Specifically, the trial court denied the PCR Petition, finding that it was not timely filed, but gave Puckett thirty days to file a Belated Notice of Appeal.
Puckett now appeals. Additional facts will be provided as necessary.
Puckett argues that he was improperly sentenced. Specifically, Puckett contends that the trial court erred in enhancing his sentence under the habitual offender statute, Ind.Code § 35-50-2-8. In addition, Puckett asserts that the trial court erred, under I.C. § 35-50-1-2, in ordering that his sentences be served consecutively.
Initially, we note that sentencing decision are entrusted to the sound discretion of the trial court and will be reversed only for an abuse of that discretion. Hayden v. State, 830 N.E.2d 923, 928 (Ind.Ct. App.2005), trans. denied. Notwithstanding its broad discretion, a trial court must act within statutorily prescribed limits when determining a sentence. Johnican v. State, 804 N.E.2d 211, 214 (Ind.Ct.App. 2004). Thus, although sentencing is generally left to the discretion of the trial judge, we are required to correct sentences that violate the trial court's statutory authority. Id.
First, Puckett argues that the trial court did not properly follow I.C. § 35-50-2-8 in adjudicating and sentencing him as an habitual offender. Indiana Code section 35-50-2-8 states, in pertinent part:
(a) Except as otherwise provided in this section, 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.
(b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:
(1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction;
(2) the offense is an offense under I.C. [§] 9-30-10-16 ...
For clarity, we observe that at least three felonies are involved in an habitual offender adjudication — two "prior unrelated felony convictions," and a third felony to which the habitual offender finding is "attached." Townsend v. State, 793 N.E.2d 1092, 1097 n. 4 (Ind.Ct.App.2003) trans. denied. In this context, the third, or current, offense is referred to as the "underlying" offense while the prior unrelated felony convictions are known as the "predicate" or "prior" felonies. Id.
Here, Puckett contends that it was contrary to I.C. § 35-50-2-8(b)(1) for the trial court to rely on Count V, his conviction for operating a vehicle while intoxicated with a prior conviction, I.C. § 9-30-5-3, as the underlying felony for his habitual offender adjudication. Specifically, Puckett argues that an habitual offender charge cannot attach to Count V since the offense is a misdemeanor that was enhanced to a felony in the same proceeding solely because he had a prior unrelated conviction. See I.C. § 35-50-2-8(b)(1). We agree, and the State concedes — albeit not until oral arguments were presented — that the trial court could not, under this statute, use Count V as the underlying offense for Puckett's habitual offender adjudication. Our supreme court has previously held that, under the operating while intoxicated sentencing scheme, the only enhancement to which a defendant can be subjected to is one from a Class A misdemeanor to a Class D felony. Schnepp v. State, 768 N.E.2d 1002, 1004-05 (Ind.Ct.App.2002), trans. denied (citing Freeman v. State, 658 N.E.2d 68, 69 (Ind.1995)). "In the absence of clear legislative language to the contrary, such double enhancement cannot be permitted." Schnepp, 768 N.E.2d at 1005 (citing Devore v. State, 657 N.E.2d 740 (Ind.1995)). Although a series of decisions by this court led to a statutory modification that now allows an habitual substance offender charge to attach to an already-enhanced conviction for driving while intoxicated, no statutory change has had the same effect upon the general habitual offender provision. See I.C. § 30-50-2-10; see also State v. Downey, 770 N.E.2d 794, 797 (Ind.2002).
In addition, Puckett asserts that it is contrary to I.C. § 35-50-2-8(b)(2) for his other current felony conviction, operating a motor vehicle after having been adjudicated an habitual traffic offender, I.C. § 9-30-10-16, to operate as the underlying offense for his habitual offender adjudication. Again, we agree, and the State concedes, that the trial court could not attach an habitual offender finding to Puckett's felony conviction for operating a motor vehicle after having been adjudicated an habitual traffic offender, as it is plainly excluded from the habitual offender statute. See I.C. § 35-50-2-8(b)(2).
We have held before that "[a] sentence that exceeds statutory authority constitutes fundamental error" and is "subject to correction at any time." Parrett v. State, 800 N.E.2d 620, 622 (Ind.Ct.App.2003) (citation omitted). Therefore, because a judge cannot impose a sentence that does not conform to the mandate of the relevant statutes, we vacate Puckett's conviction as an habitual offender and remand to the trial court for modification of his sentence.4 See Id.
Second, Puckett contends that it is contrary to I.C. § 35-50-1-2 for the trial court to have sentenced him to consecutive sentences. This provision, in pertinent part, states:
(c) Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in [I.C. §] 35-38-1-7.1(a); and
(2) mitigating circumstances in [I.C. §] 35-38-1-7.1(b);
in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the...
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