Johnson v. State, No. 32A05-1604-CR-703, __ N.E.3d __ (Ind. Ct. App., April 19, 2017).

Shepard, Senior J.

New legislation limits the use of lower-level felony convictions in determining whether a new crime can be sentenced under the habitual offender scheme.  We apply our best reading of these recent amendments to the case of appellant Matthew L. Johnson.

Johnson brings this interlocutory appeal from the trial court’s order denying his objection to habitual felony offender enhancement charges.  The State has charged Johnson under two cause numbers.  One case alleges seven felonies that range from Level 2 to Level 6.  The other alleges three felonies, ranging from Level 4 to Level 6.  The State filed identical habitual offender allegations in each cause.  The habitual allegation was that Johnson had been convicted of Class D felonies in 2001, 2005, 2006, and 2008.  Johnson objected to the

habitual counts on grounds that under new legislation all lower-level felonies must have occurred during the last ten years.  The trial court overruled his objection, and certified this new question of criminal law for interlocutory appeal.

This novel sentencing question requires statutory interpretation, and as such presents a question of law reviewed de novo.  Sloan v. State, 947 N.E.2d 917 (Ind. 2011).  The primary goal of statutory interpretation is to effectuate legislative intent.  Allen v. Allen, 54 N.E.3d 344 (Ind. 2016). …

Indiana’s provisions on enhancing standard sentences for felonies have evolved over time from a statute that was both strict and simple, to the versions before us in this case.

….

The most recent amendments likewise reflect a continuation of the policy trend evidenced in the changes we have just mentioned.  In general, lower level prior felonies are less forceful in habitual calculation.  And, pertinent to this case, there are time limits on how distant they can be from the instant offense.

The current rule for Murder and Level 1-4 felonies, for example, is that a defendant is an habitual offender if the State proves beyond a reasonable doubt that the offender has been convicted of two prior unrelated felonies and at least one of the prior unrelated felonies is not a Level 6 felony or Class D felony.  Ind. Code § 35-50-2-8 (2015).

….

A number of Johnson’s felony offenses are at Level 6, and the version of the statute that was in effect at the time of the July 31, 2015 offenses read as follows:

(d) A person convicted of a felony offense is a habitual offender if the state proves beyond a reasonable doubt that:

(1) the person has been convicted of three (3) prior unrelated felonies; and

(2) if the person is alleged to have committed a prior unrelated:

(A) Level 5 felony;

(B) Level 6 felony;

(C) Class C felony; or

(D) Class D felony;

not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.

Johnson’s position has been that the statute requires that each lower level unrelated felony conviction meet the ten-year requirement.

The State has argued that only one of the prior unrelated felony convictions need fall within the ten-year period in order to proceed with all of the allegations of the habitual offender determination.  It focuses on the statutory language of (d)(2)—if the person is alleged to have committed a prior unrelated Level 5 or 6, or Class C or D felony.  The State has further argued that the statute “only requires that a conviction (or released from imprisonment probation or parole) be within in[sic] ten (10) years.”

The actual words of the statute do not actually mandate either of these outcomes in any visible way.

We conclude that the long-term visible policy has turned on two kinds of changes:  (1) reducing the impact of prior offenses of lower rank, and (2) reducing the impact of convictions entered quite some years ago.  Put another way, the general thrust is that individuals who committed lesser offenses and then stayed clean for long periods do not face enhancements of the same severity as under habitual statutes in their earlier form.

Thus, consistent with this apparent trend in legislative policy and with the rule of lenity, we interpret the statute to work as follows:  convictions from which the offender was released more than ten years before the current offense do not count for habitual purposes under section 8(d).  Those from which the offender was released less than ten years before the current offense do count for habitual purposes.

It is apparent that one or another of the offenses alleged in the habitual count are not available for one or more of Johnson’s ten current felonies.  Thus, as this matter returns to the trial court, it will be necessary to examine each of the priors as eligible for habitual purposes as respects each of the ten current charges.  This analysis will also necessitate an examination of an issue already recognized by the trial court—the dates upon which Johnson was released from each of his prior offenses.

We reverse the trial court’s order overruling Johnson’s objection to the habitual offender enhancement charges and remand for review consistent with this opinion.

Reversed and remanded.

Robb, J., and Barnes, J., concur.

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