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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man with a long history as a traffic violator lost his appeal to dismiss his habitual offender charge after the Indiana Court of Appeals found that current statute gives courts explicit authorization to use the habitual offender enhancement.
In Nov. 2017, Arnold Tuell was arrested and charged with Level 5 felony operating a motor vehicle after forfeiture of license for life and for his status as a habitual offender. Tuell unsuccessfully sought to dismiss the habitual offender enhancement, arguing that he was charged under a progressive penalty scheme for the Level 5 felony, and a penalty under such a statute could not be further enhanced under the habitual offender statute.
On interlocutory appeal, Tuell argued that the trial court erred in denying his motion to dismiss the habitual offender charge. Specifically, Tuell contended he was impermissibly subjected to double enhancement for which there is no statutory authority.
Tuell further argued his point citing Stanek v. State, 603 N.E.2d 152 (Ind. 1992), appealing the panel to reverse the trial court’s denial of his motion to dismiss.
The Indiana Court of Appeals noted that while Tuell aptly observed that the facts in Stanek were similar to his own case, Tuell ignored the substantial evolution in double enhancement jurisprudence since Stanek was decided, both in caselaw and the habitual offender statute.
The appellate court further noted that the habitual offender statue currently states in Indiana Code 35-50-2-8(e) that “The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if the current 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.”
“The emphasized language in subsection (e) provides explicit legislative direction about when the State may not seek a double enhancement,” Judge James S. Kirsch wrote for the panel. “That language, however, does not bar double enhancement here because Tuell’s current offense is not a misdemeanor that was enhanced to a felony in the same proceeding as the habitual offender proceeding solely because of a prior unrelated conviction. Thus, by the plain language of the statute, the circumstances here do not pose the risk of an impermissible double enhancement.”
“Over time, the legislature has enacted various iterations of the habitual offender statute, calibrating it one way or another, so we see the narrow exclusion in the current version of the statute as not being arbitrary or arising by happenstance but, instead, a product of the legislature’s considered deliberation about what exclusions best fit the needs of our State at this time,” Kirsch concluded in Arnold Tuell v. State of Indiana, 18A-CR-1186.
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