Woodward v. State

• Decision Date: 07 November 2003
• Docket Number: No. 49A04-0301-CR-8.,49A04-0301-CR-8.
• Parties: Melissa WOODWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

798 N.E.2d 260

Melissa WOODWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0301-CR-8.

Court of Appeals of Indiana.

November 7, 2003.

Kevin Wild, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Melissa Woodward appeals the sentence she received for her conviction of Operating a Vehicle While Intoxicated (OWI),¹ a class D felony. Woodward presents the following restated issue for review: Did the trial court err, when sentencing Woodward, in applying the provisions of Ind. Code Ann. § 35-30-2-2(b)(4)(Q) (West, PREMISE through 2002 1st Special Sess.), instead of I.C. § 9-30-5-15(b)?

We affirm.

The facts favorable to the conviction are that on December 5, 2002, Woodward pled guilty to operating a vehicle while intoxicated, which was elevated to a class D felony because she had two previous OWI offenses. The instant offense was committed on May 11, 2002. With respect to the previous offenses, she was arrested for the first offense on May 27, 1999, and sentenced on July 8, 1999. She was arrested for the second offense on June 14, 1999, and sentenced on August 26, 1999. On December 6, 2002, the trial court sentenced Woodward in the instant case to 365 days, of which 185 days was suspended and 180 days was executed. The trial court explicitly stated that it imposed the 180-day executed sentence because it interpreted the statutory guidelines to prohibit reducing the executed sentence below that amount. Woodward appeals only that aspect of the sentence.

The issue in this case is straightforward: which statute governs Woodward's sentence, particularly with respect to the question of how much of the sentence is nonsuspendable? The parties contend alternately that it is either I.C. § 9-30-5-15(b) or I.C. § 35-50-2-2(b)(4)(Q) (hereinafter the General Suspension Statute; Saintignon v. State, 749 N.E.2d 1134 (Ind. 2001)). The State argues that Woodward should be sentenced pursuant to the General Suspension Statute, which provides that a sentence imposed for an OWI conviction under I.C. § 9-30-5-3 may not be suspended such that the defendant serves less than the minimum prescribed sentence, which in this case is 180 days. Woodward counters that she should be sentenced pursuant to I.C. § 9-30-5-15, which provides that all but 10 days of the sentence is suspendable. The matter may be further narrowed to a single question: does the General Suspension Statute apply? If it does, then the trial court correctly concluded that a 180-day executed sentence was the minimum that it could impose.

We begin by noting that this court has already determined that I.C. § 9-30-5-15 does not apply on facts such as are present in Woodward's case. We have held that the "1999 amendment to Section 9-30-5-15, and specifically the addition of subsection (b), was intended to act as a `gap-filler,' or to require a term of imprisonment for one convicted of OWI more than twice, but not convicted of a felony." Simmons v. State, 773 N.E.2d 823, 828 (Ind.Ct.App.2002), trans. denied. Inasmuch as the instant offense is a class D felony, I.C. § 9-30-5-15 does not apply. Therefore, we turn our attention to I.C. § 35-50-2-2.

Woodward contends that the General Suspension Statute does not apply because a crucial condition set out therein is not present on the facts of her case. That condition concerns the prior convictions. Woodward notes that the General Suspension Statute provides that the two predicate offenses must be "prior unrelated" offenses, and contends that phrase should be defined as follows: "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." Warren v. State, 769 N.E.2d 170, 172 n. 2 (Ind.2002) (addressing the General Habitual Offender Statute). Woodward argues that the General Suspension Statute does not apply because of the absence of the proper sequencing. The State counters that the sequencing requirement set out in Warren does not apply for convictions under I.C. § 9-30-5-3. It is sufficient, according to the State, to prove that the defendant has two previous OWI convictions in addition to the instant conviction. Our courts have not heretofore addressed this question.

We are called upon to interpret the General Suspension Statute. Our standard of review in such matters is well settled, and is reflected in the following excerpt:

The interpretation of a statute is a question of law which we review de novo. Under a de novo review standard, we owe no deference to the trial court's legal conclusions. If the language of a statute is clear and unambiguous, it is not subject to judicial interpretation. However, when the language is susceptible to more than one construction, we must construe the statute in accord with the apparent legislative intent. This is done by giving effect to the ordinary and plain meaning of the language used in the statute. Penal statutes are to be strictly construed against the State to avoid enlarging them by intendment or implication beyond the fair meaning of the language used.

State v. Gibbs, 769 N.E.2d 594, 596 (Ind. Ct.App.2002), trans. denied.

The main thrust of Woodward's argument is that the meaning of "prior unrelated" must be construed by reference to two other statutes, i.e., I.C. § 35-50-2-8 (the General Habitual Offender Statute) and I.C. § 35-50-2-10 (the Habitual Substance Offender Statute). Those statutes, like the General Suspension Statute, refer to "prior unrelated" offenses. See I.C. § 35-50-2-8(a) & (c) and I.C. § 35-50-2-10(b), (c), & (e), respectively. The General Habitual Offender Statute and the Habitual Substance Offender Statute differ from the General Suspension Statute, however, in that the former provide for enhanced punishment of certain recidivist offenders. See Greer v. State, 680 N.E.2d 526 (Ind. 1997),

cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1025. The General Suspension Statute, on the other hand, does not create a special status that subjects a defendant to sentence enhancement. Instead, it provides guidelines for determining whether, and how much, certain sentences may be suspended.

There is a second and more significant difference between the two habitual offender statutes and the General Suspension Statute. The General Habitual Offender Statute and Habitual Substance Offender Statute each provide that habitual offender status may be established by proof that "the person has accumulated two (2) prior unrelated . . . convictions." I.C. § 35-50-2-8(a); I.C. § 35-50-2-10(b). The General Suspension Statute provides that a trial court can suspend any part of a sentence for a conviction except for a conviction under I.C. § 9-30-5 if the person who committed the offense "has accumulated at least two (2) prior unrelated convictions under I.C. § 9-30-5." I.C. § 35-50-2-2(b)(4)(Q). Although the "prior unrelated" language is the same in all three statutes, one factor persuades us to construe the latter provision differently from the other two. Namely, the General Habitual Offender Statute and the Habitual Substance Offender Statute explicitly provide that "prior unrelated" imposes a sequential requirement with respect to the three offenses. See I.C. § 35-50-2-8(c)(1) & (2);² I.C. § 35-50-2-10(c).³ The General Suspension Statute contains no such provision. Therefore, if such a requirement is imposed in the General Suspension Statute, it must be accomplished by resort to the rules of statutory construction.

When the legislature has not defined terms used in a statute, we ascribe to words their common and ordinary meaning. Koppin v. Strode, 761 N.E.2d 455 (Ind.Ct.App.2002),trans. denied. In determining the plain and ordinary meaning of words, we may consult English language dictionaries. Id. The prefix "un" means the opposite of, and "related" means connected or linked together in some way. Merriam-Webster OnLine Dictionary, available at http://www.mw.com. The plain and ordinary meaning of "unrelated" is therefore "not connected" or "not linked together." "Connected" in this context conveys a temporal element in the sense that the offenses could not have been committed at the same time. "Prior" means "earlier in time or order." Id. That term is used in the General Suspension Statute with reference to the predicate offenses and therefore addresses the temporal relationship between the instant conviction and those predicate convictions. Therefore, "prior unrelated" convictions within the meaning of the General Suspension Statute refers to offenses that were committed before the instant offense and were reduced to judgment before the instant conviction was entered. Beyond that, we perceive no indication that the Legislature intended to establish a requirement with respect to the sequence of commission and entry of conviction concerning the three offenses.

We note that this interpretation finds support elsewhere in the...