Senate panel advances bill to narrowly define out-of-state felonies

A bill that would more narrowly define how out-of-state felonies are treated in Indiana sentencing matters passed its first hurdle in the Indiana Senate.

The Senate Corrections and Criminal Law Committee unanimously passed House Bill 1033 on Tuesday, more than three weeks after the bill unanimously passed its chamber of origin. HB 1033, authored by Evansville Republican Thomas Washburne, amends language in Indiana Code Section 35-50-2-1 to define out-of-state Level 6 felonies as any offense that carries a possible sentence of more than one year, but less than 2½ years.

Current law defines Level 6 offenses from other jurisdictions as any offense with a possible sentence of more than one year, leading to a situation in which serious out-of-state offenses — such as murder or other felonies up to and including Level 1 felonies — would always be treated as the lowest-level felony in Indiana, Washburne said. That definition complicated Indiana’s habitual offender statute, which only allows for a habitual offender enhancement if the offender has two prior unrelated felonies, one of which cannot be a Level 6 or Class D, he said. 

The Indiana Supreme Court agreed with that interpretation in the December opinion in Darryl Calvin v. State of Indiana, 02S03-1709-CR-611, when the majority reversed a man’s Indiana habitual offender enhancement based on his two prior Illinois convictions. Prior to his Indiana conviction of Level 4 felony burglary, Darryl Calvin had been convicted twice in Illinois for Class 1 felony residential burglary, leading to his habitual offender enhancement.

But the majority of justices overturned the habitual offender enhancement, determining that because Indiana Code section 35-50-2-8(b) (Supp. 2016) only allows for an enhancement if the offender has at least one conviction that is not a Level 6 felony — and because I.C. 35-50-2-1 defined all out-of-state offenses as Level 6s — the enhancement could not stand. Justice Mark Massa dissented, finding ambiguity in the out-of-state offense statute.

“Here the legislature used the traditional line of demarcation between felonies and misdemeanors — imprisonment for at least a year — to define low-level felonies from other states, which otherwise might use a different nomenclature of class or level, too varied to be included by specific reference,” Massa wrote in December. “This doesn’t mean they meant all out-of-state felonies are Level 6s, regardless of severity.”

Washburne agreed with the dissenting justice, telling committee members HB 1033 was filed in response to the Calvin decision to clean up the statutory language.

“We would not want to have a case where murder in Ohio is treated as a Level 6 in Indiana when it comes over,” he said.

Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, said his organization supported Washburne’s bill.

HB 1033 received unanimous committee support, though Sen. Greg Taylor, D-Indianapolis, advised Washburne that he should consult with Taylor as ranking minority member of the committee before bringing other bills before the committee.

“If you’re going to have a bill in this committee, contact me and let me know what it’s about and you might get some support,” Taylor said before voting in favor of the measure. Committee chair Mike Young, R-Indianapolis, noted Washburne also had not consulted with him, but said he nevertheless thought HB 1033 was good legislation.