Mark A. Petry v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 19 2019, 6:00 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Mark A. Petry Curtis T. Hill, Jr. Carlisle, Indiana Attorney General Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark A. Petry, September 19, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-668 v. Appeal from the Pike Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Jeffrey L. Biesterveld, Judge Trial Court Cause No. 63C01-1201-FB-29

Vaidik, Chief Judge. [1] Following a 2013 jury trial, Mark A. Petry was convicted of Count I: Class B

felony criminal deviate conduct, Count II: Class D felony sexual battery, and

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Count III: Class D felony criminal confinement. Petry then admitted that he is

a habitual offender based on earlier felony convictions (Count IV). The trial

court sentenced Petry to 20 years for Count I, 3 years each for Counts II and

III, and 25 years for Count IV. The court ordered the sentences for Counts I-III

to be served concurrently and the sentence for Count IV to “be served

consecutive to Counts I, II and III.” Appellant’s App. Vol. II p. 50. [2] In 2019, Petry filed a motion to correct erroneous sentence alleging that “the

imposition of the habitual offender enhancement, as a separate count,

constitutes an erroneous sentence which requires correction.” Id. at 54. Petry

didn’t ask to be resentenced; instead, he asked for the habitual-offender

enhancement to be vacated altogether. The State filed a motion to dismiss,

which the trial court granted. [3] Petry now appeals, repeating the arguments he made below. It is error for a

trial court to impose a habitual-offender enhancement as a separate sentence.

See Howard v. State, 873 N.E.2d 685, 691 (Ind. Ct. App. 2007). But that is what

the trial court did here. See Appellant’s App. Vol. II p. 50 (“The sentence for

Count IV, the Habitual Offender Enhancement, shall be served consecutive to

Counts I, II and III.”). As the State notes, the proper remedy in this situation is

“well-settled,” that is, “[w]here a trial court improperly runs a habitual offender

enhancement as a separate consecutive penalty, the case must be remanded to

the trial court with instructions to enter a sentencing order that reflects that the

enhancement is not a separate conviction.” Appellee’s Br. p. 13 (citing Edwards

v. State, 479 N.E.2d 541, 548 (Ind. 1985)). We therefore reverse the trial court’s

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dismissal of Petry’s motion to correct erroneous sentence and remand this case

with instructions for the trial court to sentence Petry on Count I to 45 years (20

years enhanced by 25 years for being a habitual offender). As for Petry’s

argument that the remedy should be to vacate his habitual-offender

enhancement, we decline to do so given our Supreme Court’s longstanding

remedy of remanding the case to the trial court for a new sentencing order. [4] Reversed and remanded.

Riley, J., and Bradford, J., concur.

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