State v. Downey
| Decision Date | 28 June 2002 |
| Docket Number | No. 79S05-0106-CR-314.,79S05-0106-CR-314. |
| Citation | 770 N.E.2d 794 |
| Parties | STATE of Indiana, Appellant, v. Brian W. DOWNEY, Appellee. |
| Court | Indiana Supreme Court |
Steve Carter, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
Bruce W. Graham, Trueblood & Graham, P.C., Attorney for Appellee.
ON PETITION TO TRANSFER
Although the general rule is that a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute absent explicit legislative direction, we hold that the Legislature has directed that such an enhancement be permitted the circumstances of this case.
Defendant was charged on December 6, 1999, with possession of marijuana, a Class A misdemeanor,1 possession of marijuana while having a prior conviction, a Class D felony,2 and reckless possession of paraphernalia,3 a Class A misdemeanor. He was also charged as being a habitual substance offender.4
Prior to trial, Defendant moved to dismiss the habitual substance offender charge. After a hearing on the motion, the trial court dismissed the habitual substance offender information, and the Court of Appeals affirmed on interlocutory appeal, State v. Downey, 746 N.E.2d 374 (Ind.Ct.App.2001).
The Court of Appeals held that "a misdemeanor charge under the marijuana possession statute, once elevated to a Class D felony due to a prior marijuana possession conviction, should not be enhanced again under the general habitual substance offender statute." Downey, 746 N.E.2d at 378. The Court of Appeals relied heavily on this Court's decision in Ross v. State, 729 N.E.2d 113 (Ind.2000), where we held that where a defendant's misdemeanor violation of Indiana's handgun statute was enhanced to a Class C felony because of a prior felony conviction, it was improper for the trial court to impose the enhancement contained in Indiana's general habitual offender sentencing statute.
We granted transfer. Downey v. State, 753 N.E.2d 17 (Ind.2001) (table).
The State contends that the trial court erred in granting Defendant's motion to dismiss the habitual offender count. Specifically, the State argues that it was not improper to elevate Defendant's marijuana possession charge to a Class D felony and charge him as a habitual substance offender, predicating the habitual substance offender enhancement on the already enhanced possession charge.
The proper resolution of this case requires at least a brief review of the way in which both the appellate courts and the Legislature have dealt with imposing more severe sentences than would otherwise be the case on individuals who have proven to be repeat or "habitual" criminals. Both branches of government have acted with frequency in this area, sometimes in the sort of "dialogue" of which Chief Justice Abrahamson and Mr. Hughes have famously written. See Shirley S. Abrahamson and Robert L. Hughes, Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation, 75 Minn. L.Rev. 1045, 1055 (1991) ().
The Legislature has enacted three types of statutes that impose more severe sentences than would otherwise be the case on individuals who have proven to be habitual criminals. The interrelationship of these statutes has required judicial interpretation that has, in turn, prompted the Legislature to amend the statutes.
General habitual offender statute. The first type of these statutes is the general habitual offender statute, Ind.Code § 35-50-2-8, under which a person convicted of three unrelated felonies on three separate occasions are called "habitual offenders" and can be subjected to an additional term of years beyond that imposed for the felonies.
Specialized habitual offender statutes. The second type of these statutes is more specialized. Under this type, a person convicted of a multiple number of certain closely related offenses can be subjected to an additional term of years beyond that imposed for the offenses. At issue in this case, and in several of the previous opinions of this court discussed infra, is the "habitual substance offender" statute, Ind. Code § 35-50-2-10. Here the Legislature has provided that a person convicted of three unrelated "substance offenses" on three separate occasions can be subjected to an additional term of years beyond that imposed for the offenses. Other examples of specialized habitual offender statutes are Ind.Code § 9-30-10-4 ("habitual traffic violator") and Ind.Code § 35-50-2-14 ("repeat sexual offender").
Progressive penalty statutes. The third type of these statutes is even more specialized. Under this type, the seriousness of a particular charge (with a correspondingly more severe sentence) can be elevated if the person charged has previously been convicted of a particular offense. At issue in this case, or in several of the previous opinions of this court discussed infra, are the following progressive penalty statutes:
In a series of decisions over the last ten years, our court has held that, absent explicit legislative direction, a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute. (We highlight the "absent explicit legislative direction" proviso as it is dispositive in the case before us.)
In Stanek v. State, the defendant had been convicted and sentenced under a progressive penalty statute and then that sentence had been enhanced under the general habitual offender statute. 603 N.E.2d 152 (Ind.1992). Specifically, the defendant was charged and convicted of operating a motor vehicle while his driving privileges were suspended. This charge had been elevated to a Class C felony (from a Class D felony) because the defendant had previously been convicted of operating while suspended. The trial court then used the general habitual offender statute to increase further the sentence for the Class C felony. We held that further increase to be impermissible. We found that the Legislature's intent in creating the "discrete, separate, and independent" system for enhancing the sentences of habitual violators of traffic laws was that those sentences not "be subject to further enhancement under the general habitual offender statute." Id. at 153-54.
Freeman v. State and Devore v. State were cases where the defendants had been convicted and sentenced under a progressive penalty statute and then their sentences had been further increased under the specialized habitual offender statute for "habitual substance offenders." Freeman, 658 N.E.2d 68 (Ind.1995); Devore, 657 N.E.2d 740 (Ind.1995). Specifically, the defendants were charged and convicted of operating motor vehicles while intoxicated. These charges had been elevated to Class D felonies (from Class A misdemeanors) because the defendants had previously been convicted of operating while intoxicated. The trial court then used the specialized habitual offender statute for "habitual substance offenders" to increase further the sentence for the Class D felony. As in Stanek, we held that further increase to be impermissible. We found that in the progressive penalty statute, because it provided "progressively severe penalties for defendants who are repeatedly convicted of operating a vehicle while intoxicated," Freeman, 658 N.E.2d at 70, the Legislature created a punishment scheme markedly different from that in the habitual substance offender statute which "does not contain progressive punishments based on frequency or severity." Freeman, 658 N.E.2d at 71. We concluded that the defendants could be subjected only to the more specific punishment scheme, citing the rule of statutory construction that directs that a more specific statute will supersede a more general one. Id. (citing Sanders v. State, 466 N.E.2d 424, 428 (Ind.1984)).
As this court noted in Haymaker v. State, 667 N.E.2d 1113 (Ind.1996), after Freeman and Devore, the Legislature modified the habitual substance offender statute to provide that prior convictions for operating vehicles while intoxicated, including those where the charge had been elevated because of a prior conviction, could serve as predicate offenses for habitual substance offender enhancements. In so responding to Freeman and Devore, the Legislature made specific reference to Ind. Code § 9-30-10, the section of the code dealing with operating vehicles while intoxicated. As such, the amendment did not affect any other progressive penalty statutes.
Ross v. State was another case like Stanek where the defendant had been charged and convicted under a progressive penalty statute and then that sentence had been increased further under the general habitual offender statute....
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