Steven Clear v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2018, 9:03 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Clear, December 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1561 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause No. 73D02-1603-F6-114

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 1 of 4 [1] Steven Clear appeals his sentence for being an habitual vehicular substance

offender. We remand.

Facts and Procedural History [2] On March 28, 2016, the State charged Clear with: Count I, operating while

intoxicated as a class A misdemeanor; Count II, operating while intoxicated as

a level 6 felony; and Count III, driving while suspended as a class A

misdemeanor. The State later charged Clear with: Count IV, operating a

vehicle with an alcohol concentration equivalent to at least 0.15 grams of

alcohol per 210 liters of breath or 100 milliliters of blood; Count V, operating a

vehicle while intoxicated as a level 5 felony; and Count VI, being an habitual

vehicular substance offender. [3] On April 19, 2018, the court held a bench trial. The court’s sentencing order

states that it entered judgment of conviction for Count III, driving while

suspended as a class A misdemeanor; Count V, operating a vehicle while

intoxicated as a level 5 felony; and Count VI, being an habitual vehicular

substance offender. The court found that Count II merged into Count V and

that Count V supersedes Count I. The court’s order sentenced Clear to thirty-

four days for Count III, five years for Count V, and six years for Count VI with

all sentences served consecutively to each other and to the sentences under

cause numbers 03D02-1801-F6-55 and 03D02-1805-CM-999. In its abstract of

judgment, the court listed Counts III, V, and VI as separate counts with the

separate sentences imposed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 2 of 4

Discussion [4] Clear argues that Ind. Code § 9-30-15.5-2(d) directs the trial court to sentence a

defendant found to be an habitual vehicular substance offender to an additional

term of imprisonment which is added to the term of imprisonment imposed for

the underlying felony. He asserts that the trial court treated the habitual

vehicular substance offender enhancement as a separate offense with a separate

sentence and that remand is appropriate. The State agrees that to the extent

there is any confusion about whether the enhancement was entered as a

standalone sentence for a separate offense, instead of being entered as an

enhancement in relation to the underlying offense, this Court should remand

for the trial court to clarify that the enhancement renders the sentence for Count

V to be eleven years. [5] Ind. Code § 9-30-15.5-2(d) provides: “The court shall sentence a person found

to be a habitual vehicular substance offender to an additional fixed term of at

least one (1) year but not more than eight (8) years of imprisonment, to be added

to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”

(Emphasis added). [6] Recently, in Weekly v. State, 105 N.E.3d 1133, 1139 (Ind. Ct. App. 2018), trans.

denied, we explained that the “to be added” language in this statute is equivalent

to the “attach” language in Indiana’s habitual offender statute, which provides,

in relevant part:

Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 3 of 4

sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.

Ind. Code § 35-50-2-8(j) (emphasis added). “[I]t is well-settled that ‘“[a]

habitual offender finding does not constitute a separate crime nor result in a

separate sentence, but rather results in a sentence enhancement imposed upon

the conviction of a subsequent felony.”’” Weekly, 105 N.E.3d at 1139 (quoting

Kilgore v. State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State,

680 N.E.2d 526, 527 (Ind. 1997)), trans. denied). [7] Pursuant to Ind. Code § 9-30-15.5-2, we remand with instructions that the trial

court vacate the separate sentence on the habitual vehicular substance offender

finding and attach the enhancement to Clear’s sentence for operating a vehicle

while intoxicated as a level 5 felony under Count V and amend the sentencing

order and abstract of judgment accordingly. See Weekly, 105 N.E.3d at 1139

(holding that the trial court erred when it ordered the defendant’s habitual

substance offender sentence to run as a separate, consecutive sentence and

remanding for resentencing).

Conclusion [8] For the foregoing reasons, we remand for entry of an amended sentencing order

and abstract of judgment. [9] Remanded.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 4 of 4