SULLIVAN, Justice.
Anthony Dye was convicted of unlawful possession of a firearm by a serious violent felon ("SVF") and found to be a habitual offender. We hold that this constituted an impermissible double enhancement and therefore vacate the habitual-offender enhancement. We affirm his conviction of unlawful possession of a firearm by an SVF and his sentence for that offense.
Anthony H. Dye's conviction in the present case arose out of the same underlying facts as Coleman v. State, 946 N.E.2d 1160 (Ind.2011). On March 18, 2007, Dye received a frantic phone call from his 20-year-old son, Jermaine Jackson, indicating that a person who allegedly had robbed Dye several months beforehand was at Tyrus Coleman's music studio. Dye headed toward Coleman's music studio armed with a 9mm Glock pistol he apparently had obtained after being robbed. Meanwhile, tensions escalated at the studio when Jermaine, who was armed, attempted to force his way into the studio; Coleman armed himself and began pacing in front of his studio after his efforts at calming Jermaine failed. A few minutes later, Dye entered Coleman's yard with his pistol at his side and walked over to where Jermaine and Coleman were standing. As Dye approached, Coleman shot him twice. At that point, Jermaine pointed his handgun at Coleman, and when Coleman turned and saw this he shot Jermaine. Dye survived his injuries; Jermaine did not.
On May 1, 2007, the State charged Dye in Elkhart Superior Court with one count of unlawful possession of a firearm by a serious violent felon ("SVF"),
Dye pled guilty to unlawful possession of a firearm by an SVF. At the same time, he filed a motion to dismiss the habitual-offender allegation, contending that enhancing his sentence under the habitual offender statute would constitute an impermissible "double enhancement." The trial court denied the motion and scheduled a jury trial on the habitual-offender allegation.
On October 5, 2010, Dye's two-day jury trial commenced. During voir dire, Dye raised an objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's peremptory strike of a prospective juror, which the trial court denied. Later, the trial court denied Dye's motion for a mistrial, which he had requested after certain evidence had been presented. The jury found that Dye was a habitual offender. The trial court sentenced him to the maximum 20 years' imprisonment on the SVF conviction, enhanced by 30 years due to his status as a habitual offender. The court suspended 15 years to probation, for an executed term of 35 years.
Dye raised four issues on appeal, all of which were rejected by the Court of Appeals in a 2-1 opinion. Dye v. State, 956 N.E.2d 1165 (Ind.Ct.App.2011). First, the court held that the double enhancement was permissible. Id. at 1169-70. Second, it rejected Dye's Batson challenge on grounds that he had not made a prima facie showing of discrimination and, in any event, that the State had offered a sufficient race-neutral reason. Id. at 1170-71. Third, it held that he had waived review of his claim that the trial court erred in denying his motion for a mistrial. Id. at 1171-72. Lastly, the court held that Dye's 50-year sentence with 15 years suspended was appropriate. Id. at 1172-73. Judge May dissented, agreeing with Dye that he had been subject to an impermissible double enhancement. Id. at 1173-76 (May, J., dissenting).
Dye sought, and we granted, transfer, Dye v. State, 963 N.E.2d 1115 (Ind.2012) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).
Dye maintains that tacking the habitual-offender enhancement on to the sentence for unlawful possession of a firearm by an SVF constitutes an impermissible double enhancement. This case is yet another chapter in the ongoing dialogue among this Court, the Court of Appeals, and the Legislature concerning multiple sentencing enhancements for recidivist offenders. A brief review of this dialogue is helpful in resolving Dye's claim.
It has long been established that double enhancements are not permissible unless there is explicit legislative direction authorizing them. E.g., Beldon v. State, 926 N.E.2d 480, 483-84 (Ind.2010); Breaston v. State, 907 N.E.2d 992, 995 (Ind. 2009); Mills v. State, 868 N.E.2d 446, 449 (Ind.2007); State v. Downey, 770 N.E.2d 794, 796 (Ind.2002); Ross v. State, 729 N.E.2d 113, 116-17 (Ind.2000), adopted by statute, Pub. L. No. 166-2001, § 3, 2001 Ind. Acts 1074, 1077 (codified as amended at Ind.Code § 35-50-2-8(b)(1) (2008)); Freeman v. State, 658 N.E.2d 68, 70-71 (Ind.1995), superseded, Pub. L. No. 96-1996, § 8, 1996 Ind. Acts 1725, 1731 (codified as amended at Ind.Code § 35-50-2-10 (2008)); Devore v. State, 657 N.E.2d 740,
There are three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive-penalty statutes. Downey, 770 N.E.2d at 795-96. The general habitual offender statute, Ind.Code § 35-50-2-8 (2008), authorizes a sentencing enhancement of up to 30 years where the defendant has been convicted of three "unrelated" felonies. Downey, 770 N.E.2d at 795. Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses. Id. at 795-96; see, e.g., Ind.Code § 35-50-2-10 (2008) (habitual substance offenders); id. § 35-50-2-14 (repeat sex offenders); Ind.Code § 9-30-10-4 (2010) (habitual traffic violators). And progressive-penalty statutes, which are the most specialized, elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense. Downey, 770 N.E.2d at 796; see, e.g., Ind.Code § 35-48-4-11 (2008) (misdemeanor possession of marijuana elevated to felony if defendant has prior marijuana conviction); id. § 35-47-2-23(c)(2) (misdemeanor carrying handgun without a license elevated to felony if defendant has specific prior convictions); Ind.Code §§ 9-30-10-16 & -17 (2010) (Class D felony driving while privileges are suspended elevated to Class C felony if defendant has prior conviction for driving while suspended); id. §§ 9-30-5-2 & -3 (misdemeanor OWI elevated to felony if defendant has prior OWI conviction). Double-enhancement issues arise where more than one of these statutes is applied to the defendant at the same time. See, e.g., Downey, 770 N.E.2d at 795-98.
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. at 796 (emphasis in original). Compare Ross, 729 N.E.2d at 115-17 (holding that defendant's sentence for carrying a handgun without a license could not be enhanced under the general habitual offender statute because the conviction had already been elevated from a misdemeanor to a felony on the basis of defendant's prior conviction), with Beldon, 926 N.E.2d at 483-84 (holding that defendant's conviction for felony OWI, which was elevated to a felony due to a prior OWI conviction, could be further enhanced under the habitual substance offender statute because that statute included the requisite explicit legislative direction). Similarly, a conviction under a specialized habitual offender statute cannot be further enhanced under the general habitual offender statute in the absence of explicit legislative direction. See Stanek, 603 N.E.2d at 153-54 (holding that defendant's sentence for operating a vehicle after privileges had been suspended for life could not have his sentence enhanced under the general habitual offender statute because his conviction had already been enhanced to a felony on the basis of his prior driving-while-suspended convictions).
Applying this analysis here, Dye's habitual-offender enhancement violated the rule against double enhancements. First, the SVF statute under which Dye was convicted is a progressive-penalty statute. Mills, 868 N.E.2d at 449
Second, the general habitual offender statute does not include explicit legislative direction indicating that a double enhancement is proper here. Mills held that the general rule against double enhancements remains intact and that a double enhancement is improper where the underlying conviction is for unlawful possession of a firearm by an SVF. 868 N.E.2d at 452; see also Beldon, 926 N.E.2d at 484 ("Mills made clear that `the general rule against double enhancements "absent explicit legislative direction"' remains intact. As the Legislature had provided no such direction to the contrary, the underlying elevated conviction in that case could not be further enhanced by the general habitual offender statute." (internal citation omitted)).
We conclude that the trial court erred in denying Dye's motion to dismiss the habitual-offender allegation. We thus vacate the 30-year enhancement that the trial court imposed under the general habitual offender statute.
Dye also claims that the trial court erred in denying his Batson challenge. But, because he pled guilty to unlawful possession of a firearm by an SVF and because the only issue tried to the jury was the habitual-offender allegation, our conclusion that he was subject to an impermissible double enhancement renders his Batson claim moot. Similarly, his claim that the trial court erred in denying his motion for a mistrial is also moot. The opinion of the Court of Appeals on these issues is vacated. App. R. 58(A).
Not content with having his sentence reduced by 30 years, Dye contends that the statutory maximum 20-year sentence that the trial court imposed for his underlying conviction is inappropriate. The Court of Appeals held that Dye's original sentence of 35 years executed with 15 years of probation was appropriate in light of the nature of the crime and Dye's character. Dye, 956 N.E.2d at 1172-73. We
We vacate Dye's habitual-offender enhancement. We also summarily affirm the decision of the Court of Appeals that an executed term of 20 years' imprisonment is not inappropriate. We remand to the trial court with instructions to enter an order sentencing Dye to an executed term of 20 years.
RUCKER and DAVID, JJ., concur.
DICKSON, C.J., concurs, noting that, notwithstanding Justice MASSA'S informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind.2007), to which the Legislature has not responded with any contrary explicit legislative direction.
MASSA, J., dissents with separate opinion.
MASSA, J., dissenting.
As I read it, the serious violent felon statute is not a progressive penalty statute and therefore is not subject to the general prohibition against double enhancement. Even assuming it was, though, I believe Indiana's General Assembly has provided sufficient guidance that a habitual offender sentencing enhancement is permissible.
These reasons are explained in greater detail below, and lead me to respectfully dissent.
First, I disagree with this Court's prior determination that Indiana Code § 35-47-4-5 (the "SVF statute"), which makes it a B felony for a serious violent felon to knowingly or intentionally possess a firearm, is a progressive penalty statute. Mills v. State, 868 N.E.2d 446, 449-50 (Ind.2007). Progressive penalty statutes are those where "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." State v. Downey, 770 N.E.2d 794, 796 (Ind.2002). In my view, the SVF statute does no such thing.
It is true that there is a different statute, Indiana Code § 35-47-2-23 (the "handgun statute"), which is a progressive penalty statute. That provision establishes criminal penalties for persons who violate the laws regulating the carrying of handguns and elevates those penalties from misdemeanor to felony status under certain conditions, including when the offender has a prior conviction under those handgun regulations or has been convicted of any felony within the preceding fifteen years. Ind.Code § 35-47-2-23(c)(2), (d). A conviction that is enhanced through the operation of the handgun statute, this Court has said, may not be the basis for additional enhancement under the general habitual offender statute. See Ross v. State, 729 N.E.2d 113, 116 (Ind.2000).
In contrast, the SVF statute says "[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony." Ind. Code § 35-47-4-5(c). It therefore has only two elements: that the offender was a serious violent felon, and that the offender knowingly or intentionally possessed a firearm. Most significantly, it contains only one penalty range: a B felony. There is no entry-level misdemeanor charge that is elevated to a felony by the prior status. Thus, the Ross rationale, that the "more detailed and specific" nature
Notwithstanding this clear distinction, in Conrad v. State, 747 N.E.2d 575 (Ind.Ct. App.2001), trans. denied, the Court of Appeals was asked to extend the rationale of Ross to the SVF statute. The court compared the handgun statute to the SVF statute, noted the differences between the two, but nevertheless decided it would violate the Rule of Lenity to forbid habitual offender enhancement under the first statute but not the second. Id. at 594-95. Even though there was no "enhancing" aspect to the SVF statute, the Conrad panel said, "the defendant's serious violent status does realistically serve as an `enhancement' in that it increases the potential punishment for `possession of a firearm' from nothing at all to six to twenty years imprisonment and a fine of up to $10,000, the sentencing range for a class B felony." Id. at 594. In essence, Conrad found an enhancement in that the SVF statute "enhances" from non-crime to crime — in my opinion, a feature that is common to all criminal statutes.
With no further analysis, this Court agreed with Conrad. Mills, 868 N.E.2d at 449.
I would point, though, to a different opinion of the Court of Appeals. In Lewis v. State, 769 N.E.2d 243 (Ind.Ct.App.2002), reh'g granted, 774 N.E.2d 941 (Ind.Ct.App. 2002), trans. denied, addressing a similar appeal, the court compared the handgun statute to the SVF statute and said this:
Id. at 248-49 (internal citations omitted); accord Hatchett v. State, 740 N.E.2d 920, 923 n. 3 (Ind.Ct.App.2001) ("Indiana Code Section 35-47-2-1 prohibits citizens at large from carrying handguns in public without a license, whereas the SVF statute prohibits serious violent felons from possessing firearms of any kind at any time.... Thus, we conclude that the SVF statute defines a crime separate and distinct from carrying a handgun without a license and cannot be considered an enhancement thereof"), trans. denied; see also Dye v. State, 956 N.E.2d 1165, 1175 (Ind.Ct.App.2011) (May, J., dissenting) ("While Dye's SVF count was not based on a `progressive penalty statute'....").
I could not agree more. The statutes draw temporal distinctions (a non-handgun related serious violent felony more than fifteen years old would have no impact under the handgun statute, whereas it would still qualify under the SVF statute); geographic distinctions (the handgun statute expressly elevates the charge when the offense occurs near schools, whereas the SVF statute does no such thing); and distinctions between predicate felonies (the handgun statute applies to any felonies, whereas the SVF statute applies only to those felonies specifically enumerated). Also, as the Lewis court noted, the SVF statute is drafted to apply to the entire realm of firearms, whereas the handgun statute is specifically aimed only at a subset of that class.
Furthermore, I also point to the habitual offender statute. Subsection (b) of that statute prohibits habitual offender sentencing for felonies where "the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person has a prior unrelated conviction." Ind.Code § 35-50-2-8(b)(1). We have said that this is a codification of our general rule prohibiting double enhancement of progressive penalty statutes. Mills, 868 N.E.2d at 451; see also Townsend v. State, 793 N.E.2d 1092, 1096 (Ind.Ct.App.2003).
Plainly, the SVF statute does not fit our legislature's definition of a progressive penalty statute. The SVF statute is not a misdemeanor enhanced to a felony in the same proceeding solely because the person has a prior unrelated conviction. It is a felony from start to finish.
Yet the Mills adoption of the Conrad analysis sweeps away all these clear legislative lines in favor of a simplified view of
For example, imagine if Dye went to Coleman's studio armed not with a handgun, but with a shotgun or rifle. Dye could have literally dozens of prior felony convictions, but the prosecutor would be unable to charge him under the SVF statute and seek a habitual offender enhancement because of this Court's blanket analogy of the stand-alone SVF statute to the operation of the handgun statute. And this would be the case even though Dye was guilty of absolutely no crime under the handgun statute.
As another example, imagine if Dye went to Coleman's studio still armed with his handgun and with the same three prior felony convictions. But in this instance, imagine if all three prior felonies occurred in 1990 rather than in 1993 and 1998. Again, no prosecutor in this state would be able to charge Dye under the SVF statute and seek a habitual offender enhancement — even though none of those prior felonies could enhance his sentence under the handgun statute.
Finally, imagine that instead of Dye going to Coleman's studio, Coleman went to Dye's home. Dye has his handgun and his record reflects the 1993 and 1998 prior felonies. Once again, he would be free and clear of habitual offender enhancement to his SVF charge because, even though his felonies could theoretically enhance a charge under the handgun statute, he is under no obligation to have a handgun license when carrying on his own property and therefore committed no crime under the handgun statute.
These situations cannot be what our General Assembly envisioned when it drafted these statutes, but they are very real possibilities because this Court has mistakenly labeled the SVF statute as a "progressive penalty statute."
Under our rule, "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." Op. at 857 (quoting Downey, 770 N.E.2d at 796). The majority points to Mills as holding that such legislative direction is absent in cases involving convictions under the SVF statute.
But even if we accept that there remains a class of statutes — at this point containing only the SVF statute — that are "judicially defined progressive penalty statutes," and that fall under the general rule prohibiting double enhancement even though they are not misdemeanors elevated to felonies, I struggle with the Mills determination that the habitual offender statute does not provide sufficiently explicit legislative direction to permit enhancement of those statutes under its provisions. Because of this, I dissent.
Cases analyzing the interplay between progressive penalty statutes and the general and specialized habitual offender statutes mention a "dialogue" between the courts and the General Assembly. See Mills, 868 N.E.2d at 448; Downey, 770 N.E.2d at 795. I think this is probably a correct way of expressing how courts and legislatures interact, but at this point in the dialogue the General Assembly might fairly ask if we're listening.
In Mills, this Court noted that the general habitual offender statute was amended in 2001 as part of this ongoing back-and-forth, and highlighted two significant
But Mills said this was not sufficient. It acknowledged that the 2001 amendment was a legislative response to this Court's jurisprudence regarding double enhancement. Mills, 868 N.E.2d at 451-52. And it acknowledged that the legislature could have codified the general rule without adding the "except as otherwise provided" language of subsection (a). Id. at 452. But it then went on to effectively read that clause out of the statute by saying "the `except as otherwise provided' language signals the Legislature's intent to create exceptions to the statutory rule of subsection (a) but does not preclude continued judicial application of the general rule against double enhancements absent explicit legislative direction." Id.
In contrast, an example of sufficient legislative direction is found in Downey, where this Court was faced with a defendant whose misdemeanor marijuana possession charge was increased to a D felony as a result of a prior marijuana conviction. Downey, 770 N.E.2d at 794-95. The prosecutor also charged him with being a habitual substance offender under Indiana Code § 35-50-2-10. Id. Absent explicit legislative direction, this would be impermissible under our general rule. Id. at 798.
However, this Court found such explicit legislative direction because the habitual substance offender statute allowed "a habitual substance offender enhancement to be imposed on a person convicted of three unrelated `substance offense[s],'" Id. (quoting Ind.Code § 35-50-2-10), and defined "substance offense" as including "a Class A misdemeanor or a felony in which the possession ... of ... drugs is a material element of the crime." Id. (quoting Ind.Code § 35-50-2-10(a)(2)).
As I read it, subsection (a) of the habitual offender statute says, in effect, that a habitual offender enhancement to a felony charge may be sought anytime the defendant has two prior unrelated felony convictions — unless a separate subsection of the statute prohibits it. Subsection (b) then articulates the three instances in which the habitual offender enhancement is prohibited. In essence, it tells prosecutors and courts: "You may do this, except where we say you cannot. And here are the times we say you cannot."
I think this was the most reasonable approach for the General Assembly to take while still responding to Ross's articulation of our general rule, and I am not sure what else it could have done. Given the broad and general scope of the habitual offender statute, the starting presumption would be that it applies to all felonies; it was far easier to list those felonies to which it does not apply than to attempt to draft a list enumerating all of the ones to which it does apply (particularly if this Court continues to expand its class of judicially created progressive penalty statutes). The statute already prohibits habitual offender enhancement of misdemeanors that are elevated to felonies because of prior felony convictions in accordance with our jurisprudence — is the Court also requiring the General Assembly to comb the criminal code for stand-alone felonies that we might later judicially define as de facto progressive penalty statutes? This seems needlessly demanding.
The courts of this state communicated to the General Assembly what was, and was not, permissible with respect to double enhancements. Several times, the General Assembly has responded. I believe their 2001 response amending the habitual offender statute shows first that the SVF statute is not a progressive penalty statute, and second that, even if the SVF statute were still subject to the general rule against double enhancement, there is explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute.
Accordingly, I dissent.
