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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals, after finding the language of the habitual offender statute doesn’t support either the defendant’s or the state’s interpretation, reversed the denial of the defendant’s objection to his habitual counts and ordered the trial court to review the matter.
Matthew L. Johnson faced habitual offender charges in two separate causes in 2015, ranging from Level 2 to Level 6 felonies. An identical habitual offender allegation was filed by the state in both causes, saying Johnson had been convicted of Class D felonies in 2001, 2005, 2006 and 2008. He objected on the grounds that under new legislation, all lower-level felonies must have occurred during the last 10 years. The trial court overruled his objection, leading to this interlocutory appeal.
The Court of Appeals, in an opinion authored by Senior Judge Randall Shepard, looked at the original habitual offender statute and its evolution over the years from an automatic 30-year fixed term to consideration of the level of the offense and lapse of time to reduce an habitual offender sentence length.
Johnson argued that the language of the statutes in effect at the time of his offenses requires that each lower-level unrelated felony conviction meet the 10-year requirement. The language says if a person committed a prior unrelated Level 6 or Class D felony, not more than 10 years can have elapsed between the time of release from prison, probation or parole and the time the person committed the current offense.
The state maintained that only one of the prior unrelated felony convictions needs to fall within the 10-year period in order to proceed with all of the allegations of the habitual offender determination.
“The actual words of the statute do not actually mandate either of these outcomes in any visible way,” Shepard wrote.
The long-term policy evolution is that individuals who committed lesser offenses then stayed clean for long periods do not face enhancements of the same severity as under habitual statutes in their earlier form, he noted.
The appellant judges interpreted the statute to work in this way: convictions from which the offender was released more than 10 years before the current offense do not count for habitual purposes under Indiana Code 35-50-2-8(d); those from which the offender was released less than 10 years before the current offense do count for habitual purposes.
“It is apparent that one or another of the offenses alleged in the habitual count are not available for one or more of Johnson’s ten current felonies. Thus, as this matter returns to the trial court, it will be necessary to examine each of the priors as eligible for habitual purposes as respects each of the ten current charges. This analysis will also necessitate an examination of an issue already recognized by the trial court —the dates upon which Johnson was released from each of his prior offenses,” Shepard wrote.
The case is Matthew L. Johnson v. State of Indiana, 32A05-1604-CR-703.
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