Matthew L. Johnson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from Hendricks Superior Court. Cause Nos. 32D04-1508-F2-18,
32D04-1507-F4-18 The Honorable Mark A. Smith, Judge.
Attorney for Appellant Brian J. Johnson Danville, Indiana
Attorneys for Appellee
T. Hill, Jr. Attorney General of Indiana Justin F. Roebel
Deputy Attorney General Indianapolis, Indiana
Shepard, Senior Judge
New legislation limits the use of lower-level felony
convictions in determining whether a new crime can be
sentenced under the habitual offender scheme. We apply our
best reading of these recent amendments to the case of
appellant Matthew L. Johnson.
and Procedural History
Johnson brings this interlocutory appeal from the trial
court's order denying his objection to habitual felony
offender enhancement charges. The State has charged Johnson
under two cause numbers. One case alleges seven felonies that
range from Level 2 to Level 6. The other alleges three
felonies, ranging from Level 4 to Level 6. The State filed
identical habitual offender allegations in each cause. The
habitual allegation was that Johnson had been convicted of
Class D felonies in 2001, 2005, 2006, and 2008. Johnson
objected to the habitual counts on grounds that under new
legislation all lower-level felonies must have occurred
during the last ten years. The trial court overruled his
objection, and certified this new question of criminal law
for interlocutory appeal.
This novel sentencing question requires statutory
interpretation, and as such presents a question of law
reviewed de novo. Sloan v. State, 947 N.E.2d 917
(Ind. 2011). The primary goal of statutory interpretation is
to effectuate legislative intent. Allen v. Allen, 54
N.E.3d 344 (Ind. 2016). In criminal cases, where we are
attempting to fulfill legislative intent, we also incorporate
the rule of lenity-interpreting the statute in the
defendant's favor to the extent the language can provide
such support. Day v. State, 57 N.E.3d 809 (Ind.
Indiana's provisions on enhancing standard sentences for
felonies have evolved over time from a statute that was both
strict and simple, to the versions before us in this case.
The original version of the habitual charge said rather
The state may seek to have a person sentenced as an habitual
offender for any felony by alleging, on a page separate from
the rest of the charging instrument, that the person has
accumulated two (2) prior unrelated felony convictions. A
person who is found to be an habitual offender shall be
imprisoned for an additional fixed term of thirty (30) years,
to be added to the fixed term of imprisonment imposed under
section 3, 4, 5, 6, or 7 of this chapter. Ind. Code §
35-50-2-8; P.L. 340-1977, SEC. 121.
Our supreme court resolved a challenge to the definition of
"unrelated, " making clear in Erickson v.
State, "The term 'unrelated felony' does
not mean a felony of unlike kind, but [rather] not related to
the instant felony in the sense that it is not connected to
it as part of the res gestae of the instant
crime." 438 N.E.2d 269, 273 (Ind. 1982). If so, the
trial court was directed to add a flat thirty years to
whatever sentence it imposed for the current crime.
Subsequent versions of the habitual offender law authorized
trial courts to add fewer than the thirty-year standard term.
Beginning with Public Law 210-1980, SEC. 1, courts were given
discretion to reduce the thirty-year habitual offender term
by up to twenty-five years if ten years or more had elapsed
since the offender was discharged from probation,
imprisonment, or ...