Starks v. State
| Decision Date | 24 May 1988 |
| Docket Number | No. 87S00-8601-CR-20,87S00-8601-CR-20 |
| Citation | 523 N.E.2d 735 |
| Parties | Daniel W. STARKS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John Wissner, Scales, Wissner and Krantz, Boonville, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION FOR REHEARING
In this case the sentencing court imposed separate sentences on eighteen theft convictions. Each was enhanced one year beyond the presumptive two years. There were also two counts filed alleging habitual status and two determinations thereon that appellant was an habitual offender. The two determinations were upon separate theft charges filed in separate causes, but consolidated for trial. One thirty year habitual enhancement was specified as attaching to one particular conviction. It was not designated which of the remaining concurrently running sentences carried the second thirty year habitual enhancement. The two habitual offender sentences were then ordered to run consecutively for a total term of sixty-six years.
A question properly presented for our decision and addressed by us in the court's opinion in this case is whether the sentencing court exceeded its legislative authorization when it imposed consecutive felony sentences, both of which were enhanced by thirty years, because of habitual offender status, at a single criminal trial. The question before us is essentially one of statutory construction. Two separate statutes have been applied by the trial judge, I.C. 35-50-1-2, which authorizes the imposition of concurrent or consecutive sentences, and I.C. 35-50-2-8, which authorizes thirty year enhancements because of habitual offender status.
I.C. 35-50-1-2 provides in pertinent part:
.. the court shall determine whether terms of imprisonment shall be served concurrently or consecutively."
I.C. 35-50-2-8 provides in pertinent part:
This court has held that it is proper for a court to enhance a sentence for aggravating circumstances and then add additional time to that sentence because of habitual offender status. Woodson v. State (1984), Ind, 466 N.E.2d 432. Additionally we have sanctioned the process of enhancing two sentences for aggravating circumstances and then requiring the two sentences to be served consecutively. Smith v. State (1985), Ind., 474 N.E.2d 71. A trial court may also enhance a sentence on one count and order that a second count, enhanced by thirty years, be served consecutive to the first. Jackson v. State (1985), Ind., 483 N.E.2d 1374. Further, we have held that it is proper to sentence twice as a habitual offender for totally separate crimes and to run the sentences concurrently. Kelly v. State (1983), Ind., 452 N.E.2d 907. The rationale of the Kelly case is that the defendant could have been sentenced as an habitual offender in both causes and therefore could be so sentenced when the two causes were joined for trial. It is important that the sentences there were actually ordered to be served concurrently and not consecutively as is the case before us. Kelly did not face consecutive habitual offender sentences.
A case coming close to this one is Calloway v. State (1986), Ind., 500 N.E.2d 1196. Calloway was faced with two separately filed causes in which habitual offender counts had been filed. He entered into a plea agreement on one in return for dismissal of the other, and received a single sentence enhanced by habitual offender status. He then filed a post-conviction petition claiming ignorance at the time of pleading guilty of a rule which would have forbidden running habitual offender sentences in each of the two separate causes consecutively. This court rejected this claim as had the trial court, and relying upon Kelly, concluded that there was no rule forbidding consecutive enhanced habitual offender sentences. Kelly does not in fact stretch so far. The binding force of Calloway is further diminished by the fact that Calloway did not actually receive consecutive habitual offender sentences as has Starks in the case now before us. We have as yet not faced the question of consecutive habitual offender sentences in these acute circumstances.
It is the legislative intent expressed in the statutes which must...
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