Thursday, March 21, 2013
Ind. Decisions - Two today from Supreme Court
In Anthony D. Dye v. State of Indiana, an 8-page, 4-1 opinion, Justice Rucker writes:
The State seeks rehearing of this Court’s opinion in which we determined that the Defendant’s sentence for unlawful possession of a firearm by a serious violent felon (“SVF”), which was enhanced under the general habitual offender statute, constituted an impermissible double enhancement. Dye v. State, 972 N.E.2d 853 (Ind. 2012). * * *In Todd J. Crider v. State of Indiana, a 10-page, 5-0 opinion, Justice Rucker writes:
The State filed a timely petition for rehearing contending the Court’s decision is a departure from Mills in that the Court has now “held that serious violent felons who possess firearms cannot be punished as habitual offenders.” Pet. for Reh’g at 1. We grant rehearing to address this contention. * * *
Were we to sanction the State’s charging decision in this case, it would amount to elevating form over substance. We agree with Judge May’s observation that it is incongruous to hold that “two offenses . . . are so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support a double enhancement in the form of an SVF count and an habitual offender enhancement.” Dye, 956 N.E.2d at 1175 (May, J., dissenting).
In sum, the State is not be permitted to support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.
Conclusion. We grant rehearing and again affirm that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a serious violent felon. In all other respects we reaffirm our original opinion.
Dickson, C.J., and David and Rush, JJ., concur.
Massa, J., concurs in part and dissents with separate opinion.
Massa, Justice, concurring in part and dissenting in part.
While I join my colleagues in clarifying that the original majority opinion in this matter did not extend Mills to situations where different prior unrelated convictions are used to establish an habitual offender finding and the elements of the Serious Violent Felon statute, I continue to dissent from the ultimate result on rehearing for reasons previously explained. Dye v. State, 972 N.E.2d 853, 859 (Ind. 2012) (Massa, J., dissenting).
In this case we conclude that the waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the Defendant did not bargain for the sentence. * * *
Taken together, our jurisprudence stands for the proposition that in Indiana, a defendant can waive his right to appeal an illegal sentence. Our cases have recognized legitimate reasons for this proposition. “[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.” Lee 816 N.E.2d at 40 (quoting Davis v. State, 771 N.E.2d 647, 649 n.4 (Ind. 2002)). * * *
Absent due process concerns to the contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, whether or not the sentence or method is authorized by the law, he cannot later appeal such sentence on the ground that it is illegal. See Lee, 816 N.E.2d at 40. In this case Crider made no such agreement. And in the absence of any such agreement, he was entitled to presume that the trial court would sentence him in accordance with the law. Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law. Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender sentences, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.
Conclusion. We reverse in part the trial court’s sentencing order and remand for resentencing in accordance with this opinion.
Posted by Marcia Oddi on March 21, 2013 10:14 AM
Posted to Ind. Sup.Ct. Decisions