Appeal from the Shelby Superior Court, No. 73D01-0608-FA-22. The Honorable Jack A. Tandy, Judge.
On Petition To Transfer from the Indiana Court of Appeals, No. 73A01-1303-CR-134.
ATTORNEY FOR APPELLANT: Joel M. Schumm, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; James B. Martin, Deputy Attorney General, Indianapolis, Indiana.
Rucker, Justice. Rush, C.J., and Dickson, David and Massa, JJ., concur.
Appellant challenges his convictions and aggregate 38-year sentence following resentencing for various crimes arising from a foiled drug sale. In this appeal, we address whether the appellant's firearm enhancement is based on the same behavior used to convict and sentence the appellant for carrying a handgun without a permit. We conclude that it is and therefore vacate his conviction and five-year firearm enhancement.
Facts and Procedural History
Arising out of a drug transaction Christopher Cross was charged with several felony offenses and two misdemeanor offenses. The State also alleged that Cross was a habitual offender as well as a habitual substance offender. In addition the State sought a sentence enhancement for Cross using or possessing a firearm while dealing in a controlled substance. See Ind. Code § 35-50-2-13. After a bench trial Cross was found guilty as charged, and the trial court sentenced him to an aggregate term of fifty years, which included a twenty-year sentence enhancement for the habitual offender adjudication. The trial court did not impose sentences on the firearm enhancement or the habitual substance offender enhancement on grounds that it had already enhanced Cross' sentence under the general habitual offender statute. Cross appealed challenging only the sufficiency of the evidence for his convictions on three class A felony offenses, and alleging trial court abuse of discretion in imposing sentence. In a Memorandum Decision the Court of Appeals affirmed the judgment of the trial court. See Cross v. State, 890 N.E.2d 117, 2008 WL 2673228 (Ind.Ct.App. 2008).
Although the record is not altogether clear apparently at some point Cross filed a petition for post-conviction relief alleging that his appellate counsel rendered ineffective assistance for failing to challenge Cross' eligibility to be sentenced as a habitual offender. At an evidentiary hearing held on the petition, the parties agreed that the petition should be granted and Cross should be resentenced on all convictions. App. at 28. In consequence, on January 31, 2013 Cross and the State filed a " Joint Motion to Grant Petition for Post-Conviction Relief and to Set the Matter for Resentencing." App. at 27. The post-conviction court granted the motion and scheduled the matter for a resentencing hearing. App. at 30. At resentencing after listening to witness testimony, considering evidence presented by the parties, and entertaining arguments of counsel, the trial court sentenced Cross to an aggregate term of thirty-eight years, which included a one-year sentence for the misdemeanor offense of carrying a handgun without a permit; a six-year sentence for carrying a handgun without a permit after a prior felony conviction; and a five-year sentence for the firearm enhancement.
Cross appealed raising three claims which we rephrase as: (1) was the sentencing range for the Class A felony classification disproportionate to the nature of his offenses; (2) did the trial court err by entering convictions and sentences for both carrying a handgun without a permit after a felony conviction and use of a firearm in controlled substance offense as an enhancement based on possession of the same handgun; and (3) should Cross' conviction for the misdemeanor offense of carrying a handgun without a permit be vacated because it is a lesser-included offense of the felony of carrying a handgun without a permit. The Court of Appeals rejected Cross' first two claims but granted relief on the third claim. See Cross v. State, 997 N.E.2d 1125 (Ind.Ct.App. ...