Jamal R. Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Sep 09 2020, 7:53 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen Gerald Gray Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jamal R. Smith, September 9, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1090 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1710-F2-42053

Bradford, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-1090| September 9, 2020 Page 1 of 4

Case Summary [1] In April of 2020, the trial court amended its sentencing order, sentencing Jamal

Smith to thirty years of incarceration with two years suspended for his Level 2

felony dealing-in-a-narcotic-drug conviction, and scheduled a jury trial for July

30, 2020, regarding the habitual-offender allegation against Smith. Prior to trial,

Smith appealed his sentence, and the trial court cancelled the habitual-offender

jury trial. Because we conclude that Smith is not appealing from a final

judgment, we dismiss his appeal.

Facts and Procedural History [2] On January 28, 2019, following a bench trial, Smith was convicted of Level 2

felony dealing in a narcotic drug, Level 3 felony narcotic-drug possession, and

Class B misdemeanor marijuana possession. The trial court also found Smith to

be a habitual offender. On March 27, 2019, the trial court sentenced Smith to

thirty years of incarceration with ten years suspended for his conviction for

dealing in a narcotic drug and enhanced that sentence by twenty years based on

its finding that Smith is a habitual offender. The trial court also sentenced Smith

to one hundred and eighty days for his marijuana-possession conviction, to be

served concurrently with his dealing-in-a-narcotic-drug conviction. On January

28, 2020, we affirmed Smith’s convictions but reversed the trial court’s habitual-

offender finding, after concluding that Smith had not waived his right to a jury

trial on the habitual-offender allegation. In doing so, we remanded the case for

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the State to decide whether to pursue the habitual-offender enhancement. On

April 23, 2020, the Indiana Supreme Court denied transfer. [3] On April 28, 2020, the trial court vacated the habitual-offender finding and

entered an amended-sentencing order, sentencing Smith to thirty years of

incarceration with ten years suspended for his Level 2 felony dealing-in-a-

narcotic-drug conviction and one hundred and eighty days for his Class B

misdemeanor marijuana-possession conviction, to be served concurrently. On

April 28, 2020, the trial court again entered an amended-sentencing order,

sentencing Smith to thirty years of incarceration with two years suspended for

his Level 2 felony dealing-in-a-narcotic-drug conviction. On May 4, 2020, the

State notified the trial court that it intended to pursue the habitual-offender

allegation against Smith, and the trial court scheduled a jury trial for July 30,

2020. On May 26, 2020, however, Smith initiated this appeal, and, as a result,

the trial court cancelled the jury trial.

Discussion and Decision [4] Smith contends that the trial court (1) wrongfully denied him a hearing on his

revised sentence for his Level 2 felony dealing-in-a-narcotic-drug conviction, (2)

imposed a vindictive sentence, and (3) failed to make a record that stated its

reasons for imposing a more severe sentence on remand. We conclude,

however, that Smith’s contentions are not ripe for appellate review. A judgment

is final and appealable if “it disposes of all claims as to all parties.” Ind.

Appellate Rule 2(H)(1). In criminal cases, sentencing is a final judgment. Terrell

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v. State, 390 N.E.2d 208, 209 (Ind. Ct. App. 1979). In criminal cases where the

defendant is alleged to be a habitual offender, “[a] habitual offender finding

does not constitute a separate crime nor does it result in a separate sentence[,]”

but, rather, “it results in a sentence enhancement imposed upon the conviction

of a subsequent felony.” Howard v. State, 873 N.E.2d 685, 689 (Ind. Ct. App.

2007). Thus, a habitual offender ultimately receives one sentence, consisting “of

two components—the sentence for the underlying conviction and the habitual

offender enhancement.” Id. at 690. [5] In this matter, the trial court amended Smith’s sentence for his Level 2 felony

dealing-in-a-narcotic-drug conviction and set the habitual-offender allegation

for jury trial on July 30, 2020. While Smith raises numerous arguments

regarding the trial court’s decision to amend his original sentence for his

dealing-in-a-narcotic-drug conviction, those arguments are for another day.

Smith’s sentence for his dealing-in-a-narcotic-drug conviction is but only one

component of his sentence, and until the habitual-offender allegation against

him has been disposed of, Smith’s sentence is not an appealable final judgment.

We therefore dismiss Smith’s appeal. [6] Appeal dismissed.

Najam, J., and Mathias, J., concur.

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