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Sentencing Enhancements:Habitual Offenders

IPAC

Summer Conference

June 26‐28, 2013

Jeremy MullClark CountyChief Deputy

Prosecuting Attorney

Curbing the CRAZY cycle of repeat offenders

“The single most effective crime‐fighting tool in the hands of a Prosecuting Attorney is the Habitual Offender statute. A small group of persistent career criminals commit the vast majority of all crime, including almost 70% of all violent crime across the nation. By the aggressive and consistent prosecution of such habitual offenders, a prosecutor can   effectively isolate and incapacitate those who refuse to refrain from committing felonies. The Habitual   

Offender statute gives the prosecution a fighting chance. Stop him before he strikes again.”   – Steve Stewart, Author of Indiana Habitual Offender Handbook

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Unless…

Reminds me of the time….

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Sudan

Afghan and American Prosecutors:The same, but different

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American and Afghan or Sudanese Defendant: The same, but different…

United States Sudan

Afghanistan Sharia Law (Hanafi): Third time’s the charm…

• Hudud Offenses: most serious crimes under Islamic penal law

– Theft

• Penalty: First time: amputate right hand, second time: amputate left foot or leg, subsequent: imprisonment

– Adultery & Fornication (Zina)

• Penalty: Fornication: 100 lashes; Adultery: death by stoning

– Robbery (Highway)

• Penalty: Crucifixion, Death by sword or gun, amputation

– Drinking alcohol

• Penalty: 80 lashes

– Defamation (relating to unchastity)

• Penalty: 80 lashes

– Most times apostasy and rebellion included

• Penalty: Death (but chance to repent)

The old ways were the good ways…

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If there was justice in the world…

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I. HISTORY OF INDIANA HABITUAL OFFENDER STATUTES

• A. 1907-1976 (IC 35-8-8-1 / IC 35-8-8-2) Habitual Criminal statute mandated a life sentence upon a thirdfelony conviction; imprisonment required on prior convictions; no bifurcated hearing necessary.

• B. 1977-1993 (IC 35-50-2-8) Habitual Offender statute mandated a sentence enhancement of 30 yearsupon third unrelated felony conviction; imprisonment on prior convictions not required; bifurcated hearingrequired.

• C. 1983-present (IC 35-50-2-10) Habitual Substance Offender statute authorizes a sentenceenhancement of 3-8 years upon third unrelated substance offense conviction; may be reduced down toone year if more than 3 years since discharge from previous sentence, or if not more than one dealingoffense; bifurcated hearing required.

• D. 1993-present (IC 35-50-2-8) Habitual Offender statute replaced mandatory 30 year penalty with aprogressive penalty of 1-3 times the presumptive/advisory sentence on the underlying crime, up to amaximum 30 years.

• F. 1994-present (IC 35-50-2-8.5) LWOP Habitual Criminal statute is discretionary and allows for asentence of Life Without Parole upon a third unrelated conviction of a felony listed in IC 35-50-2-2 (b)(4),or a second unrelated felony conviction for a sex offense against a child; bifurcated hearing required.

• G. 2001-present (IC 35-50-2-8) Habitual Offender Statute exempts all many some drug offenders fromhabitual eligibility.

II. CURRENT HABITUAL OFFENDER STATUTE

(IC 35-50-2-8)

A. Requires two prior unrelated felony convictions PLUS a triggering (underlying) felony conviction. (2 + 1 = 3)

B. All 3 felonies must be unrelated. (in proper sequence)

Convicted of felony #1, then committed and convicted of felony #2, then committed and convicted of felony #3, the underlying or current felony.

IC 35-50-2-8(c); Flint v. State, 750 N.E.2d 340 (Ind.2001)

Unrelated: A Beautiful Union

• Robbery:  committed 1/19/2003, convicted and sentenced  9/4/2003.

• Forgery: committed 6/6/2006, convicted and sentenced 8/8/2009.

• New felony: 4/19/2012

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Yeah, Baby!

Related: Not meant to be

• Theft:  committed 7/3/2004, convicted and sentenced  4/16/2005.

• Arson: committed 4/15/2005, convicted and sentenced 8/8/2007.

• New felony: 12/6/2012

You won’t like what happens

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Alleging surplus prior felony convictions

• State is permitted to plead and prove more than two prior unrelated felony convictions. Nash v. State, 545 N.E.2d 566 (Ind. 1989)

• However, when State alleges and proves in excess of two prior unrelated felonies, and one of the surplus convictions is later vacated or found to be invalid, the conviction may be overturned—if the state used general verdict form. Waye v. State, 583 N.E.2d 733 (Ind. 1991)

II. CURRENT HABITUAL OFFENDER STATUTE

(IC 35-50-2-8)

C. Bifurcated jury trial / sentencing hearing

1. Same jury reconvenes for sentencing hearing after guilty verdict on triggering felony.

2. State must prove beyond a reasonable doubt that the Defendant has accumulated

two prior unrelated felony convictions.

You might want to prepare for this…It is possible to screw it up.

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II. CURRENT HABITUAL OFFENDER STATUTE

(IC 35-50-2-8)

D. Not separate crime nor consecutive sentence, but merely an enhancement of sentence on the triggering felony.

1. enhancement = 1-3 times the presumptive sentence on the triggering felony

2. maximum enhancement = 30 years

Kalady v. State, 462 N.E.2d 1299 (Ind. 1984)

II. CURRENT HABITUAL OFFENDER STATUTE

(IC 35-50-2-8)

E. Prosecuting Attorney has complete discretion on whether to file request for habitual sentencing.

1. Same requirements as for Information (Count X or Request for Habitual Sentencing).

2. May file with Information or may add later by Amended Information.

F. “Double Enhancement” and “Progressive Penalty Statutes”

• There are three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive-penalty statutes.

• The general habitual offender statute authorizes a sentencing enhancement of up to 30 years where the defendant has been convicted of three “unrelated” felonies.

• Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses (HSO, HTV, Repeat Sex offender).

• And progressive-penalty statutes, which are the most specialized, elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense (POM, Carrying, DWS, OWI). Dye v. State, 972 N.E.2d 853

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F. “Double Enhancement” and “Progressive Penalty Statutes”

• The general rule is that, “ absent explicit legislative direction, a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.”Dye v. State, 972 N.E.2d 853

• Similarly, a conviction under a specialized habitual offender statute cannot be further enhanced under the general habitual offender statute in the absence of explicit legislative direction. Dye v. State, 972 N.E.2d 853

• If underlying crime was a misdemeanor, enhanced to a felony based upon a prior conviction (e.g. Possession of Marijuana, Prostitution) it cannot be enhanced further with a Habitual Offender count. Mills v. State, 868 N.E.2d 446 (Ind. 2007)

• OWI enhanced to D Felony based upon prior misdemeanor could be enhanced with HSO using same misdemeanor used to enhance the underlying offense. Beldon v. State, 926 N.E.2d 480 (Ind. 2010)

F. “Double Enhancement” and “Progressive Penalty Statutes”

Dye v. State, 984 N.E.2d 625 (Ind. 2013) (Elkhart)

• On rehearing, Indiana Supreme Court clarifies propriety of Habitual Offender enhancement on an Unlawful Possession of a Firearm by a Serious Violent Felon (SVF) charge.

• May not have sentence enhanced under HO by proof of same felony used to establish that person was a serious violent felon, or, may not use any felony conviction that arose out of the same res gestae that was the source of the conviction used to prove the serious violent felon charge. (Res gestae: “uninterrupted transaction”)

• Original opinion at 972 N.E.2d 853 (Ind. 2012) apparently forbade the filing of the Habitual Offender count on a Serious Violent Felon charge in any circumstance, regardless of whether there were different felony convictions used to enhance the underlying offense and the Habitual count. The holding was that such an enhancement is a “double enhancement” not expressly authorized by the legislature.

F. No Enhancement of Habitual Traffic Violators permitted

• IC 35-50-2-8 (b)(2) specifically prohibits a Habitual Offender enhancement following conviction as a Habitual Traffic Violator under IC 9-30-10.

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III. OTHER CURRENT HABITUAL STATUTES

A. LWOP Habitual Offender (IC 35-50-2-8.5) Repealed by 2013 Ind. Legis. Serv. P.L. 158‐2013 (H.E.A. 1006) (Effective July 1, 2014, but Legislature meets again, further revision possible)

• Procedural requirements substantially the same as for Habitual Offender under IC 35-50-2-8.

• Requires proof beyond a reasonable doubt that Defendant:

- Has been found guilty of a felony listed in IC 35-50-2-4 (b)(4) (almost any Class A or B Felony), and has accumulated two prior unrelated convictions of felonies listed under IC 35-50-2-4 (b)(4), or

-Has been found guilty of a Class A Felony sex offense against a child,

and has accumulated one prior unrelated conviction for a sex offense against a child.

• Life Imprisonment Without Parole is the only penalty authorized under the statute, but it is not mandatory. (The Court “may” sentence to LWOP)

B. Habitual Controlled Substance Offender (IC 35-50-2-10)

• Procedural requirements substantially the same as for Habitual Offender under IC 35-50-2-8.

• “Substance Offense” is a Class A misdemeanor or felony involving the use or possession of alcohol or drugs as a material element, including OWI. IC 35-50-2-10 (a)(2)

• Requires proof beyond a reasonable doubt that Defendant has been found guilty of a substance offense

and has accumulated two prior unrelated substance offense convictions.

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• Penalty is 3-8 year enhancement.

• Penalty enhancement may be reduced down to 1 year if:

- 3 years have elapsed since discharge from probation, imprisonment, or parole, and the commission of the underlying substance offense, or if

- All of the substance offenses are drug cases, none are listed in IC 35-50-2-2 (b)(4), and the total number of drug dealing convictions “do not exceed one.”

IV. WARNING! ILLUSORY PLEA DANGER. You might not have

what you think you have

Springer v. State, 952 N.E.2d 799 (Ind. App.2011) (Whitley)

• Defendant successfully obtained PCR relief, after having pled guilty to Burglary/Attempted Burglary/Theft and Habitual Offender in one cause and Attempted Murder in another.

• The plea agreement referenced a maximum amount of years that the defendant faced under the charges (141 years) which presumed a Habitual Offender filing on the Attempted Murder charge as well. A cap of 100 years was then agreed upon in the plea. At sentencing, the judge imposed an eighty-six year sentence.

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• Under Indiana law, Habitual Offender sentences cannot be sentenced consecutively.

• Defendant alleged ineffective assistance of counsel and that he did not knowingly, intelligently, or voluntarily enter into plea.

• “Generally, a bargained plea, motivated by an improper threat, is to be deemed illusory and a denial of substantive rights . At the moment the plea is entered, the State must possess the power to carry out any threat which was a factor in obtaining the plea agreement which was accepted.”

• This case is worth noting as the principle applies broadly to the filing, negotiation of, and dismissal of Habitual Offender enhancements in general.

Breaston v. State, 907 N.E.2d 992 (Ind. 2009)

• Under Indiana law, a trial court cannot order consecutive habitual offender sentences.

• This holds true whether the concurrent enhanced sentence is imposed in a single proceeding or in separate proceedings.

• Breaston committed the crime with respect to which the second habitual offender enhancement was imposed after being arrested for, but before, being discharged from the first.

• IC 35-50-1-2(d): provides that:If, after being arrested for one (1) crime, a person commits another 

crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; 

or

(2) while the person is released:

(A) upon the person's own recognizance; or

(B) on bond;

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.

Breaston v. State, 907 N.E.2d 992 (Ind. 2009)

• “As quoted above, Starks held that ‘[i]n the absence of express statutory authorization for ... a tacking of habitual offender sentences, there is none.’ We hold that this principle applies in the ‘after being arrested’ circumstance of IC 35‐50‐1‐2(d). The statute does not expressly authorize multiple habitual offender enhancements to be imposed consecutively.”

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V. GETTING THE DOCUMENTS

Setting up routine procedures to find out if the defendant has 2 prior unrelated felony convictions is most important.

Get NCIC III Inquiry from police/Sheriff.

Check database of local courts.

If either shows prior convictions out of county/state, get on the telephone. - Purchase National Law Enforcement Directory / Corrections Directory / Clerk Directory.- Call out of county/state Prosecutor and ask for assistance, or call out of county/state Court Clerk.- Try to get necessary information over the phone (name of felony, date of commission, date of conviction) in order to file immediate Habitual Offender Request.

Order certified copies of:Indictment/Information, Judgment of Conviction, Abstract of Judgment, and CCS (Docket Sheets).- Do not rely upon oral request, follow up with immediate letter.- Not all states are the same

Call Indiana Department of Corrections, Reception and Diagnostic Center, or last Prison housing Defendant.

Check Indiana Department of Corrections website

If out of state, call state Department of Corrections.

Order certified copies of:Fingerprints, Photograph and Commitment Order for each commitment.- Do not rely upon oral request, follow up with immediate letter.

If probated, call Probation Dept. and call arresting agency / Sheriff to get fingerprints.

Check prior Presentence Investigation Reports

VI. FILING THE REQUESTSTATE OF INDIANA

IN THE CIRCUIT COURT 4 OF CLARK COUNTYSTATE OF INDIANA

VS. CAUSE NO.: 10C04-1306-CF-001 DANNY D. DEFENDANT

INFORMATION FOR COUNT III - HABITUAL OFFENDER (IC 35-50-2-8)

Comes now the affiant, having affirmed, and states that in the County of Clark in the State of Indiana on the 19th

day of June, 2013, that DANNY D. DEFENDANT is a Habitual Offender in that he has accumulated two priorunrelated felony convictions, to-wit:

On August 3, 2001 in the Clark Circuit Court, Jeffersonville, Clark County, Indiana, DANNY D. DEFENDANT wasconvicted of a felony in cause #10C01-9304-CF-025, to-wit: Burglary (Class B Felony), which crime was committedon April 19, 2001; and based upon said conviction, on August 15, 2001 DANNY D. DEFENDANT was sentenced toa six (6) year fixed term of imprisonment in the Indiana Department of Corrections.

FURTHER, on April 11, 1978 in the Floyd Superior Court, New Albany, Floyd County, Indiana, DANNY D.DEFENDANT was convicted of and sentenced upon a felony in cause #77-CR-20, to-wit: Theft, which crime wascommitted on April 11, 1977; and based upon said conviction, DANNY D. DEFENDANT was sentenced to a term ofthree hundred and sixty-four (364) days at the Indiana State Farm, said sentence suspended.

FURTHER, on February 16, 1973 in the Jefferson Circuit Court, Louisville, Jefferson County, Kentucky, DANNY D.DEFENDANT was convicted of a felony in cause #73-CR-11, to-wit: Second Degree Assault, which crime wascommitted on July 26, 1972; and based upon said conviction, on March 8, 1973 DANNY D. DEFENDANT wassentenced to one (1) to ten (10) years of imprisonment in the Kentucky Department of Corrections.

All of which is contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Indiana.

I affirm, under the penalties for perjury, that the foregoing representations are true.

Dated: June 19, 2013 __________________________Affiant

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AMENDMENT TO INFORMATION TO ADD HABITUAL OFFENDER

REQUEST / AMENDMENT TO HABITUAL OFFENDER

INFORMATION

• IC 35-34-1-5 (e): "An amendment of an indictment or information toinclude a habitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, or IC 35-50-2-10 must be made not later than ten (10) daysafter the omnibus date. However, upon a showing of good cause,the court may permit the filing of a habitual offender charge at anytime before the commencement of the trial. (But see S.E.A. 31)

• DO I FILE THE HABITUAL WITH THE UNDERLYING FELONYCAUSE? MY OPINION IS…

When you need to file…

• Better policy is for Prosecutor to file the HabitualOffender request immediately.

- The threat to file often means little to a Defendant. Theactual filing has a much greater impact on pleanegotiations.

- As long as the Request is filed within 10 days ofOmnibus Date, the statute is satisfied. Any subsequentamendments to add more specifics or to add more priorsand IC 35-34-1-5 (e) is not applicable. Any futureamendments must only satisfy the requirement of “goodcause.”

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• “Good Cause” to allow an Amendment to include a HabitualOffender charge does not require specific findings.

- While there is no definition of "good cause" given in the statute,and very little case law interpreting this provision, it is likely that aprevious lack of knowledge and due diligence to discover the priorfelony convictions will be a prerequisite to a filing beyond thedeadline. In this regard, it is recommended that the Prosecutordocument any efforts used to discover the defendant's criminalhistory.

- Ongoing plea negotiations which included an offer to forego filingthe Habitual Request has been found to constitute adequate “goodcause.” Mitchell v. State, 712 N.E.2d 1050 (Ind.App. 1999)

- A Defendant must seek a continuance in order to raise issue on appeal. Boggs v. State, 928 N.E.2d 855 (Ind.App. 2010)

White v. State, 963 N.E.2d 511 (Ind. 2012) (Dearborn)

• Addresses the situation of the State filing a tardy (more than ten days after the omnibus date) Habitual Offender count.

• The omnibus date was March 10, 2010, the Habitual Offender charge was filed on March 25, 2010.

• IC 35-34-1-5(e) provides that an amendment of an information to include a habitual offender charge must be made not later than ten (10) days after the omnibus date. The trial court may permit the filing of a habitual offender charge at any time before the commencement of trial “upon a showing of good cause.”

• “Ultimately, to preserve this issue for appeal, a defendant must request a continuance after a trial court permits a tardy habitual-offender filing. But once a defendant requests a continuance, the burden lies with the State to make a showing of good cause to the trial court, and such a showing should be reflected in the record.

• Also argued that State was required to prove that one out-of-state Nebraska felony conviction was as an adult, and not as a juvenile, when defendant’s date of birth showed him being under the age of 18 at the time of commission of the felony.

• Court held that the documents that the State introduced were sufficient, when they used words such as “defendant,”“guilty,” “felony,” and that defendant was imprisoned at an institution under the jurisdiction of the State Department of Correctional Services. No extra evidence of conviction occurring in an adult court was needed.

However, Senate Enrolled Act 31   becomes effective July 1, 2013

• Amends IC 35‐41‐3‐5(e):An amendment of an indictment or information to 

include a habitual offender charge under IC 35‐50‐2‐8, IC 35‐50‐2‐8.5, or IC 35‐50‐2‐10 must be made at least thirty days before the commencement of trial. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defendant.  If the court permits the filing of the habitual offender charge less than thirty (30) days before the commencement of the trial, the court shall grant  a continuance at the request of the: (1) state, for good cause shown; or (2) defendant, for any reason.

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VII. PROVING YOUR CASE

A. Authentication

• The customary and preferred method of proving a prior conviction is by theintroduction of a copy of the Judgment of Conviction as an Official Record,attested by the Court Clerk or other officer having legal custody of the record,pursuant to Rule 44 (A) of the Indiana Rules of Trial Procedure.

• Trial Rule 44 Proof of Official Record

(A) Authentication

(1) Domestic. An official record kept within the United States, or any state . . .when admissible for any purpose, may be evidenced by an official publicationthereof or by a copy attested by the officer having the legal custody of therecord, or by his deputy. Such publication or copy need not be accompaniedby proof that such officer has the custody. Proof that such officer does ordoes not have custody of the record may be made by the certificate of ajudge of a court of record of the district or political subdivision in which therecord is kept, authenticated by the seal of the court, or may be made by anypublic officer having a seal of office and having official duties in the district orpolitical subdivision in which the record is kept, authenticated by the seal ofthis office.

• Indiana Rules of Evidence - Rule 902(1) Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required withrespect to the following:

(1) Domestic Public Documents - The original or a duplicate of a domestic official record proved inthe manner provided by Trial Rule 44(A)(1).

(2) Foreign Public Documents - The original or a duplicate of a domestic official record proved inthe manner provided by Trial Rule 44(A)(1).

• Indiana Rules of Evidence - Rule 803(8) Public Record and Reports

The following are not excluded by the hearsay rule, even though the declarant is unavailable asa witness.

(8) Public Records and Reports. Unless the sources of information or other circumstancesindicate lack of trustworthiness, records, reports, statements, or data compilations in any form, ofa public office or agency, setting forth its regularly conducted and regularly recorded activities, ormatters observed pursuant to duty imposed by law and as to which there was a duty to report, orfactual findings resulting from an investigation made pursuant to authority granted by law. Thefollowing are not within this exception to the hearsay rule: (a) investigative reports by police andother law enforcement personnel, except when offered by an accused in a criminal case; (b)investigative reports prepared by or for a government, a public office, or an agency when offeredby it in a case in which it is a party; (c) factual findings offered by the government in criminalcases; and (d) factual findings resulting from special investigation of a particular complaint, case,or incident, except when offered by an accused in a criminal case.

• As an exception to the hearsay rule, properly certified copies of judgments or other documents areself-authenticating, and need no testimonial sponsor in order to be admitted as evidence.

B. Proof of “Conviction”

• In any jurisdiction, state or federal. No higher standard forcertifications. Harwood v. State, 555 N.E.2d 513 (Ind.App.1990)

• Parol evidence insufficient. Documentary evidence required. Morganv. State, 440 N.E.2d 1087 (Ind. 1982)

• At any time. Last year or 50 years ago. But may cause court toexercise discretion downward. E.g., Jackson v. State, 575 N.E.2d617 (Ind. 1991)

• Prior convictions that have been reversed, set aside or pardonedcannot be used. IC 35-50-2-1 & IC 35-50-2-8

• Prior convictions merely “on appeal” can be used. Habitual findingmay be vacated later if he wins appeal. Tinnin v. State, 488 N.E.2d699 (Ind. 1986)

• Prior convictions resulting from guilty plea, Alford plea, or trial isacceptable. Blow v. State, 445 N.E.2d 1369 (Ind. 1983)

• No need to show proof of incarceration on prior conviction. Can useeven if suspended and probated. Donnersbach v. State, 444 N.E.2d1184 (Ind. 1983)

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C. Proof of “Felony”

• IC 35-50-2-1(b): As used in this chapter, "felony conviction" means a conviction,in any jurisdiction at any time, with respect to which the convicted person mighthave been imprisoned for more than one (1) year. However, it does not include aconviction with respect to which the person has been pardoned, or a convictionof a Class A Misdemeanor under Section 7(b) of this chapter.

• Key word is “might.” Even if they were actually sentenced to 6 monthssuspended, if they might have received more than one year, it is still a felony.Washington v. State, 517 N.E.2d 77 (Ind. 1987)

• Even if the other state calls it a misdemeanor, if they might have received morethan one year, it is still a felony. See Shepherd v. State, 924 N.E.2d 1274 (Ind.App. 2010)

• The Court can take judicial notice of the criminal laws of other jurisdictions (IRE201). Whenever there is a question on the felony status of the conviction, theProsecutor should provide copies to the court of such laws showing the possiblepenalty, and seek judicial notice from the Court. HOWEVER, this is set tochange effective July 1, 2014, when the amended version of IRE Rule 201,which deletes subsection (b), referring to out state laws, becomes effective.

D. Proof of “Unrelated”

• Most common reason for reversals in Habitual Offender cases.

• IC 35-50-2-8(c):A person has accumulated two (2) prior unrelated felony convictions for purposes of this section only if:(1) the second prior unrelated felony conviction was committed after sentencing for the first prior unrelated felony conviction; and(2) the offense for which the state seeks to have the person sentenced as a habitual offender was committed after sentencing for the second prior unrelated felony conviction.

• Unrelated refers to sequence, not dissimilarity.

• Convicted of felony #1, then committed and convicted of felony #2, then committed and convicted of felony #3, the underlying or current felony)

• Proof of unrelated means proof of commission dates.- No need to prove commission date of oldest prior felony conviction. Jones v. State, 531 N.E.2d 478 (Ind. 1988)- Most often proved by submission of certified Indictment/Information showing commission date. Warren v. State, 769 N.E.2d 170 (Ind. 2002)- Can also be proved by testimony of arresting officer. Beavers v. State, 566 N.E.2d 533 (Ind. 1991)

E. Proof of “Identity”

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• The Defendant on trial must be identified as the same person named in the documents. Even an exactsimilarity of names in not sufficient, standing alone. Tyson v. State, 766 N.E.2d 715 (Ind. 2002)

• Proof of identity may be shown through eyewitnesses or through circumstantial evidence. As long as theevidence yields logical and reasonable inferences from which the trier of fact may determine it wasindeed the defendant who was convicted of felonies twice before, a sufficient connection has beenshown. Tyson v. State, 766 N.E.2d 715 (Ind. 2002)

• The most reliable and effective means of proving identity is through a photograph and fingerprintsattached to the certified prison records, coupled with expert testimony from a fingerprint examiner.Certified photographs and fingerprints, like Court records, are self-authenticating and need no testimonialsponsor.

• The certified fingerprints need to be connected to the Defendant on trial. Fingerprints taken of theDefendant at book-in, or taken by special Motion before the Sentencing Hearing need to be admitted anda comparative analysis made by a fingerprint expert.

• Photographs, physical descriptions and other vital statistics contained in the certified documents whichare proved to match the Defendant on trial may also provide the necessary link to prove identity. Seegenerally Hall v. State, 524 N.E.2d 1279 (Ind. 1988)

• Eyewitnesses -> Police Officer, Probation Officer, Former Lawyer, Former Prosecutor, Former Judge,Former Court Reporter or Clerk, anyone who can identify the Defendant on trial as the same person whowas charged, convicted or sentenced in accordance with the certified documents.

F. Closing Arguments

• The only issue before the trial court in a Habitual Offender proceeding "is whether the Defendant has been found guilty and sentenced for the prior offenses charged."

• Arguments by Defense held improper:

- Severity of the Habitual Offender sentence (Motion in Limine and Jury Instruction should be submitted). Jones v. State, 524 N.E.2d 1284 (Ind. 1988)

- The Defendant's positive character traits.

- The Defendant's work record.

- Opportunities for rehabilitation.

• Arguments by Prosecutor held improper:

- Recalling past campaign promises to take a firm hand against violent and repeat offenders. Butrum v. State, 469 N.E.2d 1174 (Ind. 1984)

- The Defendant's prior conviction for manslaughter "could have been a capital offense, the electric chair.” Russell v. State, 438 N.E.2d 741 (Ind. 1982)

- "Did you ever think of the time, expense and money that it takes to go to trial?"

- "I've been an attorney for 7 years and I've known the Defendant ever since I've been an attorney, his life is dedicated to crime.“ Hubbard v. State, 437 N.E.2d 52 (Ind. 1982)

The closing should go something like this…

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G. If so, you won’t have to worry about…Nullification

• There is nothing which requires the jury to return a verdict finding habitual offender status, even in the face of uncontroverted unimpeachable overwhelming proof.

• The jury has a separate and independent authority to determine whether the defendant is a habitual offender after it has concluded that the state has properly proven two prior unrelated felony convictions. Seay v. State, 698 N.E.2d 732 (Ind. 1998). This conclusion is based upon Article I, § 19 of the Indiana Constitution which provides that "the jury shall have the right to determine the law and the facts.” Sample v. State, 932 N.E.2d 1230 (Ind. 2010) (Lake)

• Indiana Criminal Pattern Jury Instruction 15.19

Sample v. State, 932 N.E.2d 1230 (Ind. 2010) (Lake)

• Final Jury Instruction recited: “If the State did prove each of these facts beyond a reasonable doubt, you must find the defendant is an habitual offender.”

REVERSED

• “The jury has the independent and separate authority to determine whether the defendant is a habitual offender even if the State has proven beyond a reasonable doubt that the defendant has accumulated two prior unrelated felony convictions.

JURY VERDICT (HABITUAL OFFENDER)

We, the jury, find that the Defendant has accumulated the following alleged prior unrelated felony convictions:YES NO 1974 Theft, a felonyYES NO 1977 Burglary, a Class C FelonyYES NO 1982 Robbery, a Class B FelonyYES NO 1989 Battery, a Class C Felony(Circle YES if you find that the Defendant has accumulated the particular conviction, and circle NO if you find that the Defendant has not accumulated the particular conviction)We, the jury, find that:THE DEFENDANT IS NOT A HABITUAL OFFENDER

THE DEFENDANT IS A HABITUAL OFFENDER

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Walker v. State, 2013 WL 2249188 (Ind. App.2013) (5/22/13)(Laporte)

• “Although the jury may be requested to make specific findings to preserve the validity of the habitual offender enhancement in the event a predicate felony is later overturned, there is no requirement that the verdict form specify all the necessary findings. “

• On PCR, Defendant challenged, among other things, the verdict form, which provided for a determination of Habitual Offender, and listed predicate convictions with a yes or no line to check beside each. He claimed that the verdict form allowed the jury to make a finding without necessarily ensuring that the sequence of convictions occurred properly.

E. Dealing With Drug Offenders

IC 35-50-2-8 (b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:(1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction;(2) the offense is an offense under IC 9-30-10-16 or IC 9-30-10-17; or(3) all of the following apply:

(A) The offense is an offense under IC 16-42-19 or IC 35-48-4.(B) The offense is not listed in section 2(b)(4) of this chapter.(C) The total number of unrelated convictions that the person has

for:(i) dealing in or selling a legend drug under IC 16-42-19-

27;(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);(iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);(iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and(v) dealing in a schedule V controlled substance (IC 35-48-4-4);

does not exceed one (1).

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IC 35-50-2-8 (b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:(1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction;(2) the offense is an offense under IC 9-30-10-16 or IC 9-30-10-17; or(3) all of the following apply:

(A) The offense is an offense under IC 16-42-19 or IC 35-48-4.(B) The offense is not listed in section 2(b)(4) of this chapter.(C) The total number of unrelated convictions that the person has

for:(i) dealing in or selling a legend drug under IC 16-42-19-

27;(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);(iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);(iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and(v) dealing in a schedule V controlled substance (IC 35-48-4-4);

does not exceed one (1).

IC 35-50-2-8 (d) A conviction does not count for purposes of this section as a prior unrelated felony conviction if:(1) the conviction has been set aside;(2) the conviction is one for which the person has been pardoned; or(3) all of the following apply:

(A) The offense is an offense under IC 16-42-19 or IC 35-48-4.(B) The offense is not listed in section 2(b)(4) of this chapter.(C) The total number of unrelated convictions that the person

has for:(i) dealing in or selling a legend drug under IC 16-42-

19-27;(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);(iii) dealing in a schedule I, II, III controlled substance

(IC 35-48-4-2);(iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and(v) dealing in a schedule V controlled substance (IC 35-48-4-4);

does not exceed one (1).

Seeley v. State, 936 N.E.2d 863 (Ind. App. 2010) (Fayette)

Current conviction: Dealing in Schedule III, within 1000' of school (Class A Felony)

Priors: 1985 Burglary (Class B felony)

2004 Battery (Class C felony)

2006 RSP (Class D felony)

2006 Intimidation (Class D felony)

• “The total number of Seeley's unrelated convictions for the dealing crimes specified in Indiana Code Section 35-50-2-8(b)(3)(C) does not exceed one. Thus, these convictions were insufficient as a matter of law for Seeley to be found an habitual offender.”

• Throw logic out the window:

- Does not matter how many prior unrelated felony convictions. (10 or 20, still insufficient)

- Does not matter how serious the prior unrelated felony convictions. (10 prior murder convictions, still insufficient)

• BECAUSE ONLY ONE OF TOTAL CONVICTIONS WERE FOR DEALING

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Owens v. State, 929 N.E.2d 754 (Ind. 2010) (Marion)

Current conviction: Dealing in Cocaine, within 1000' of youth center (Class A Felony)

Priors: 1995 Dealing in Cocaine

1998 Possession of Handgun without a license

2004 Conspiracy to Deal Cocaine

• Trial court imposed a 50 year sentence for underlying convictions and added a 30-year habitual enhancement.

• A conviction for Conspiracy to Deal is not the same as a conviction for Dealing for purposes of the general habitual offender enhancement statute .

• Because the instant dealing conviction together with the 1995 dealing conviction “exceed one” dealing conviction, AFFIRMED.

Peoples v. State, 929 N.E.2d 750 (Ind. 2010) (Tippecanoe)

Current conviction: Dealing in Cocaine (Class B Felony)

Priors: Dealing in Cocaine (Class A Felony)

Forgery (Class C Felony)

• Because the instant dealing conviction together with the prior dealing conviction “exceed one” dealing conviction, AFFIRMED.

Boggs v. State, 928 N.E.2d 855 (Ind.App. 2010)

Current Conviction: Attempted Dealing in Methamphetamine (Class B Felony)

Possession of Precursor With Firearm (Class C Felony)

Apparently finding that Attempted Dealing in Methamphetamine (with gun) was listed in IC 35-50-2-2 (b)(4), and therefore a Habitual Offender charge could be attached even though only one total drug dealing conviction.

AFFIRMED

John McCord Hypothetical

• DOB: 10/31/64• COUNT VIII HABITUAL OFFENDER

On or about July 3, 2012, James W. McCord had accumulated at least two (2) prior unrelated felony convictions, including the following:1. State of Michigan v. James W. McCord

In the Benton County District CourtCause Number:  80‐BC‐921Offense:  Burglary, a Level 5 felonyDate of Offense:  November 12, 1980Date of Conviction:  December 15, 1980

• Possible Juvenile adjudication rather than criminal conviction?

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As you ride off into the sunset, you can expect the defendant to chase you down and thank you for your 

efforts to rehabilitate him…