ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Clouse Jeffrey A. Modisett
John P. Brinson Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
ERIC A. ROSS, ) ) Appellant (Defendant Below ), ) ) 82S01-0005-CR-334 v. ) in the Supreme Court ) STATE OF INDIANA, ) 82A01-9802-CR-83 ) in the Court of Appeals Appellee (Plaintiff Below ). )
May 25, 2000
Appellant Eric Alan Ross was convicted of a misdemeanor violation of Indianas handgun statute. See footnote Because Ross had an earlier felony conviction, the present conviction was enhanced to a class C felony. See footnote The court also found that Ross was an habitual offender and added a penalty under the general habitual offender statute. See footnote
Ross asserts it was improper to sentence him under two different sentence enhancement
schemes. We agree.
Prosecutors had alleged that the handgun misdemeanor should be enhanced to a
felony under the handgun statute, Ind. Code §
because Ross had been
convicted of another felony within the past fifteen years. Building on this
newly enhanced felony, they also charged him with being an habitual offender, under
the general habitual offender statute, Ind. Code § 35-50-2-8, saying he had been
convicted of two unrelated felonies.
Ross waived his right to a jury trial on these two counts.
The trial judge found that Ross did have a prior felony conviction within
the past fifteen years
and thus enhanced the misdemeanor conviction for carrying a
handgun without a license to a class C felony. The trial judge
also found Ross had at least two prior unrelated felony convictions
thus an habitual offender.
The trial court imposed concurrent sentences: three years each for confinement, battery on a law enforcement officer, and resisting law enforcement; six months for the misdemeanor battery; and eight years for the handgun felony. The trial court enhanced the handgun felony by an additional ten years due to the habitual finding.
The Court of Appeals affirmed.
Ross v. State, 706 N.E.2d 1126 (Ind.
Ct. App. 1998)
We grant transfer.
Ross cites three cases for the proposition that a conviction enhanced under its
own specific enhancement scheme may not be further enhanced under the habitual substance
or the general habitual offender statute,
Freeman v. State, 658 N.E.2d
68 (Ind. 1995), Devore v. State, 657 N.E.2d 740 (Ind. 1995), and Stanek
v. State, 603 N.E.2d 152 (Ind. 1992).
In Freeman, the trial court enhanced Freemans drunken driving conviction to a felony
based on a prior drunken driving conviction. Then the trial court enhanced his
sentence by finding him to be an habitual substance offender. Freeman, 658
N.E.2d at 69. We determined the enhancement scheme for repeat drunken driving
convictions was a scheme for punishment based on "the specific combination of alcohol
and operating a vehicle required for conviction as well as the particular time
frame within which it must occur." Id. at 71. In contrast,
the habitual substance offender statute is more general because it does not contain
progressive punishment based on frequency or severity. Instead, it broadly defines the
activities that trigger enhancement. Id.
We concluded that Freeman could be subjected only to the more specific punishment
scheme contained in the drunken driving statute, citing the rule of statutory construction
that directs that a more specific statute will supersede a more general one.
Id. (citing Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984)).
In Devore, the Court dealt with the same two statutes and held that
in the "absence of clear legislative language to the contrary, such double enhancement
cannot be permitted." Devore, 657 N.E.2d at 742.
Stanek, 603 N.E.2d 152, the Court considered the interaction between the habitual
violator of traffic laws statute
and the general habitual offender statute. The
habitual traffic offender statute imposes more severe penalties for repeat offenses. The defendant
in Stanek was convicted of operating a motor vehicle after his driving privileges
had been forfeited for life, a class C felony. The trial judge
ordered a four-year sentence for the class C conviction and added twenty years
under the habitual offender statute. Id. at 153.
We acknowledged in
Stanek that the habitual offender statute was facially applicable but
held that the legislature did not intend a conviction for a class C
felony under the statute covering habitual traffic violators, which we described as a
discreet, separate, and independent habitual offender statute, to be subject to further enhancement
under the general habitual offender statute. Id. at 153-54.
Ross claim is about the same as those in Freeman, Devore, and Stanek except that it involves the handgun statute in connection with the general habitual offender statute. See footnote
The issue here is whether a conviction once enhanced by the specific sentencing scheme of the handgun statute can be enhanced again by the general habitual offender statute.
In Ross situation, the habitual offender statute can be viewed as being as
broad as the habitual substance offender statute in
Freeman. Enhancement possibilities under
each statute can be based on any kind of felony, or any kind
of substance offense. In addition, the handgun statute in the present case
also contains a more severe penalty for a repeat violation and for specific
circumstances, much like the drunken driving statute in Freeman. Using the analysis
employed by Freeman, the handgun statute can be viewed as the more detailed
and specific statute while the general habitual offender statute remains a general prohibition
on repeat offenses regardless of the activity . . . involved. Id.
When faced with a general statute and a specific statute on the same subject, the more specific one should be applied. See id.; Sanders, 466 N.E.2d at 428. The trial court should not use an already enhanced handgun conviction as the basis for further enhancement under the general habitual offender statute.
Beyond the rule of construction that places specific statutes ahead of general ones,
when a conflict arises over the question of imposing a harsher penalty or
a more lenient one, the longstanding Rule of Lenity should be applied.
It is a familiar principle that statutes which are criminal or penal in
their nature or which are in derogation of a common-law right must be
State v. Pence, 173 Ind. 99, 104, 89 N.E.
488, 490 (1909). Also, where there is ambiguity it must be
resolved against the penalty . . . Dowd v. Sullivan, 217 Ind.
196, 203, 27 N.E.2d 82, 85 (1940).
In light of the statutory construction favoring more specific statutes as opposed to
more general ones and because of the Rule of Lenity, a misdemeanor conviction
under the handgun statute, once elevated to a felony due to a prior
felony conviction, should not be enhanced again under the general habitual offender statute.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.