Lorraine L. Rodts
Attorneys for Appellee
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
December 20, 2001
Defendant was convicted of Dealing in Cocaine, a Class B felony;
Cocaine, a Class A felony; and Dealing in Marijuana, a Class A misdemeanor.
Defendant was also found to be a habitual offender. She was
sentenced to a total of 60 years in prison.
Defendant was charged as a habitual offender under
Indianas general habitual offender statute,
which states: The state may seek to have a person sentenced as
a habitual offender for any felony by alleging, on a page separate from
the rest of the charging instrument, that the person has accumulated two (2)
prior unrelated felony convictions. Ind. Code § 35.50-2-8(a) (1998).
The statute requires that a person found to be a habitual offender shall
be sentence[d] ... to an additional fixed term that is not less that
the presumptive sentence for the underlying offense nor more than three (3) times
the presumptive sentence for the underlying offense. However, the additional sentence may
not exceed thirty (30) years. I.C. § 35.50-2-8(e) (1998). Because the
presumptive sentence for a Class A felony is 30 years, therefore, where a
tual offender conviction is attached to a Class A felony, the sentence enhancement
must be 30 years. I.C. § 35-50-2-4.
Indiana Code § 35-50-2-10, the habitual substance offender statute, is similar to the
general habitual offender statute. The statute applies where the jury ... or
the court ... finds that the state has proved beyond a reasonable doubt
that the person had accumulated two (2) prior unrelated substance offense convictions.
I.C. § 35-50-2-10(e). The statute requires that a habitual substance offender be
sentenced to an additional three to eight years. I.C. § 35-50-2-10(f).
Even where the underlying crime is a Class A felony, the habitual substance
ffender cannot add more than eight years. Id.
Certain classes of criminals will meet the requirements of both the habitual offender
statute and the habitual substance offender statute. The habitual offender statute includes
people who have been convicted of three separate felonies. The habitual substance
offender statute includes people who have been convicted of three substance offense convictions.
An individual who is convicted of three felony substance abuse convictions will,
by definition, meet the criteria for both statutes.
We have previously held that where two criminal statutes overlap such that both
are appropriate under the circumstances, the prosecutor has the discretion to charge under
See Skinner v. State, 736 N.E.2d 1222, 1222 (Ind. 2000).
We hold that this principle applies in the habitual offender context as
well. Where a defendant could be prosecuted under either the habitual offender
statute or the habitual substance offender statute, the prosecutor has discretion to choose
Although both statutes implicate Defendant, Defendant argues that the legislature i
ntended all substance
abuse offenders to be charged under the habitual substance offender statue. Defendant
suggests that the General Assembly intended to punish the recidivism of habitual substance
offenders ... more leniently than habitual violators generally. (Appellants Br. at 8.)
Defendant regards the existence of the habitual substance offender statute as
a signal of the legislatures intent to treat repeat drug offenders more leniently
than those that meet the criteria of the general habitual offender statute:
The very existence of such a mechanism for leniency compels the conclusion that
the Indiana legislature intended its application to all those to whom it might
reasonably be applied. Id.
The primary rule in statutory construction is to ascertain and give effect to the intent of the legislature. See Chambliss v. State, 746 N.E.2d 73, 77 (Ind. 2001); Bartlett v. State, 711 N.E.2d 497, 501 (Ind. 1999). The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute. Chambliss, 746 N.E.2d at 77.
The plain language of both the habitual offender and habitual substance offender sta
encompass the action of a repeat felony drug offender and there is no
reason to believe that the plain language of the substance offender statute does
not fully reflect the legislatures intent. The relatively moderate sentencing provisions of
the habitual substance offender statute suggests that the legislature intended a certain class
of repeat offenders to be treated more leniently. Specifically, any repeat drug
offender may be sentenced to an additional three to eight years. This
includes misdemeanor drug offenders as well as felony drug offenders. See I.C.
§ 35-50-2-10(a)(1) (Substance offense means a Class A misdemeanor or a felony in
which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs
is a material element of the crime.) (emphasis added). Unlike the habitual
substance offense statute, the general habitual offender statute only punishes repeat felons.
See I.C. § 35-50-2-8(d). The habitual substance offender statute punishes repeat offenders
whether the underlying convictions were misdemeanors or felonies, while the general habitual offender
statute is reserved for criminals who have repeatedly been convicted of felonies.
Defendant suggests that the difference between the two statutes reflects the legisl
to treat drug offenders more leniently than offenders with multiple convictions for other
felonies. The statutes, however, are better explained as part of the legislatures
desire to treat felonies more harshly than misdemeanors.
Where, as in this
case, a defendant commits three felony drug offenses, the prosecutor has discretion to
use either Indiana Code § 35-50-2-10 or Indiana Code § 35-50-2-8.
Indiana Code § 35-50-2-8(e) states that the court shall sentence a habitual offender
to an additional fixed term that is not less than the presumptive sentence
for the underlying offense nor more than three (3) times the presumptive sentence
for the underlying offense. It follows that if the underlying offense is
a Class A felony, the trial court would be required to impose an
additional 30 years because the presumptive sentence for a Class A felony is
30 years. See I.C. §§ 35-50-2-8, 35-50-2-4. If the underlying offense
is a Class B felony however, the additional sentence could be anywhere from
10 to 30 years because the presumptive sentence for a Class B felony
is ten years. See I.C. §§ 35-50-2-8 and 35-50-2-5.
While the statute controls the range of the enhancement, it does not require
that the trial court attach the enhancement to the most severe underlying felony.
Where a habitual offender proceeding follows multiple felony convictions, the jury finding
of habitual offender status is not linked to any particular conviction. See
Greer, 680 N.E.2d at 527. The trial court therefore has discretion to
choose which sentence to enhance. See Winn v. State, 748 N.E.2d 352,
360 (Ind. 2001) (trial court could have imposed habitual offender enhancement on one
of the Class A or Class D felonies of which the defendant was
The trial court in this case erred when it concluded that it did
not have the discretion to enhance either felony. The enhancement of the
Class A felony resulted in a total sentence of 60 years. It
was within the trial courts discretion to enhance the Class B felony, but
the trial court did not consider that alternative. As noted supra, had
the trial court enhanced the Class B felony, it could have enhanced the
10 year sentence from 10 to 30 years. See I.C. §§ 35-50-2-5,
We are unable to ascertain from the record whether the trial court would
have imposed a lesser sentence had it understood that it could do so.
We therefore remand the case to the trial court for re-sentencing.
In doing so, the trial court must choose which felony sentence to enhance.
Defendant also challenges the constitutionality of her sentence, arguing that it was manifestly
unreasonable and violated Article I, Section 16, of the Indiana Constitution, regarding proportionality
in sentencing. Because we are remanding the case for re-sentencing, we do
not reach this issue.