Tuell v. State
Decision Date | 15 January 2019 |
Docket Number | Court of Appeals Case No. 18A-CR-1186 |
Citation | 118 N.E.3d 33 |
Parties | Arnold TUELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Attorney for Appellant: Mark A. Kiesler, Kiesler Law Office, New Albany, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana
[1] Arnold Tuell ("Tuell") was charged with operating a motor vehicle after forfeiture of license for life,1 a Level 5 felony, and with being a habitual offender.2 Tuell raises the following issue in this discretionary interlocutory appeal, whether the trial court erred in denying his motion to dismiss the habitual offender charge, which he claims is impermissible because operating a motor vehicle after forfeiture of license for life is a progressive penalty statute that cannot be further enhanced by the general habitual offender statute.
[2] We affirm.
[3] On the evening of November 25, 2017, Indiana State Police Trooper Noah Ewing ("Trooper Ewing") was driving on State Road 56 and decided to run the plate of the vehicle in front of him. Appellant's App. Vol. II at 10. He learned that Bureau of Motor Vehicle ("BMV") records indicated that the registered owner, Tuell, was a habitual traffic violator for life. Id. As Trooper Ewing drove closer to the vehicle, he noticed that the driver was a male with dark hair, which matched information from the BMV records. Id. Trooper Ewing activated his emergency lights, and the vehicle stopped. As Trooper Ewing approached the vehicle, he noticed that the driver looked to be the same person depicted in Tuell's BMV photo. Id. Tuell admitted to Trooper Ewing that 1) the car was his, 2) that he did not have a license, and 3) that he was a habitual traffic violator. Id.
[4] Tuell was arrested and charged with Count 1, Level 5 felony operating a motor vehicle after forfeiture of license for life and Count 2, with being a habitual offender. Id. at 22. The habitual offender charging information listed the following prior convictions: 1) January 22, 2008 Daviess County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 2) October 12, 2004 Dubois County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 3) January 7, 2013 Orange County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 4) March 30, 2004 Orange County conviction for operating a vehicle as habitual traffic violator,3 a Class D felony; and 5) November 4, 1997 Orange County conviction for child molesting, a Class B felony. Appellant's App. Vol II at 22.
[5] Tuell filed a motion to dismiss the habitual offender charge. Id. at 53-54. At the hearing on the motion, defense counsel argued that the habitual offender enhancement should be dismissed because Tuell was charged with operating a motor vehicle after forfeiture of license for life under a progressive penalty scheme, and a penalty under such a statute could not be further enhanced under the habitual offender statute. Tr. Vol. II at 11-13. In denying the motion, the trial court concluded that the habitual offender charge would not create an impermissible double enhancement. Specifically, it found and concluded as follows:
Appellant's App. Vol. II at 56-58 (emphasis added).
[6] Upon Tuell's request, the trial court certified its ruling for discretionary appellate review, and on June 22, 2018, we granted Tuell's motion for interlocutory appeal and accepted jurisdiction over this case. Id. at 83, 91.
[7] Tuell contends that the trial court erred in denying his motion to dismiss the habitual offender charge, claiming it subjects him to an impermissible double enhancement. "We review a trial court's ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances." Pavlovich v. State , 6 N.E.3d 969, 974 (Ind. Ct. App. 2014), trans. denied . Here, because the parties do not dispute the facts, we are presented with a question of law to which we apply a de novo standard of review. See Moss v. State , 6 N.E.3d 958, 960 (Ind. Ct. App. 2014). In interpreting a statute, the reviewing court heeds both what the statute "does not say" and what it "does say." State v. Brown , 70 N.E.3d 331, 334 (Ind. 2017).
[8] Tuell argues that allowing the State to proceed with the habitual offender charge subjects him to an impermissible double enhancement because he would be simultaneously subjected to two enhancing statutes, the progressive penalty statute of his operating a motor vehicle after forfeiture of license for life charge and the enhancement from the habitual offender charge. Tuell contends that there is no statutory authority for such a double enhancement, citing to Stanek v. State , 603 N.E.2d 152 (Ind. 1992). Appellant's Br. at 10.
[9] We look to our Supreme Court's case in Dye v. State , 972 N.E.2d 853, 856-57 (Ind. 2012) for guidance on this issue:
Dye , 972 N.E.2d at 856-57.; see also Dugan v. State , 976 N.E.2d 1248, 1250 (Ind. Ct. App. 2012) ; Shepherd v. State , 985 N.E.2d 362, 363 (Ind. Ct. App. 2013).
[10] Here, the underlying felony Tuell was charged with -- Level 5 felony operating a motor vehicle after forfeiture of license for life -- is a progressive penalty statute. Dye , 972 N.E.2d at 857. "The general rule is 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." Id. (emphasis in original).
[11] Tuell rests much of his argument on Stanek , 603 N.E.2d at 152, which involved similar facts to the present case. There, Stanek was convicted of operating a motor vehicle after driving privileges are forfeited for life, a Class C felony, and with being a habitual offender. Id. at 153. While acknowledging that the habitual offender statute in effect at the time allowed the State to seek a habitual offender enhancement for "any felony," Stanek construed the habitual offender statute and Article 12 of Title 9 – the then article on general penalty provisions for motor vehicle offenses -- to hold that the legislature did not intend that a conviction for a Class C felony under Article 12 to be subject to further...
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