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Tuell v. State

Court of Appeals of Indiana

January 15, 2019

Arnold Tuell, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Orange Circuit Court The Honorable Steven L. Owen, Judge Trial Court Cause No. 59C01-1711-F5-1259

          ATTORNEY FOR APPELLANT Mark A. Kiesler Kiesler Law Office New Albany, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

          KIRSCH, JUDGE

         [¶1] Arnold Tuell ("Tuell") was charged with operating a motor vehicle after forfeiture of license for life, [1] a Level 5 felony, and with being a habitual offender.[2] Tuell raises the following issue in this discretionary interlocutory appeal, whether the trial court erred in denying his motion to dismiss the habitual offender charge, which he claims is impermissible because operating a motor vehicle after forfeiture of license for life is a progressive penalty statute that cannot be further enhanced by the general habitual offender statute.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On the evening of November 25, 2017, Indiana State Police Trooper Noah Ewing ("Trooper Ewing") was driving on State Road 56 and decided to run the plate of the vehicle in front of him. Appellant's App. Vol. II at 10. He learned that Bureau of Motor Vehicle ("BMV") records indicated that the registered owner, Tuell, was a habitual traffic violator for life. Id. As Trooper Ewing drove closer to the vehicle, he noticed that the driver was a male with dark hair, which matched information from the BMV records. Id. Trooper Ewing activated his emergency lights, and the vehicle stopped. As Trooper Ewing approached the vehicle, he noticed that the driver looked to be the same person depicted in Tuell's BMV photo. Id. Tuell admitted to Trooper Ewing that 1) the car was his, 2) that he did not have a license, and 3) that he was a habitual traffic violator. Id.

         [¶4] Tuell was arrested and charged with Count 1, Level 5 felony operating a motor vehicle after forfeiture of license for life and Count 2, with being a habitual offender. Id. at 22. The habitual offender charging information listed the following prior convictions: 1) January 22, 2008 Daviess County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 2) October 12, 2004 Dubois County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 3) January 7, 2013 Orange County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 4) March 30, 2004 Orange County conviction for operating a vehicle as habitual traffic violator, [3] a Class D felony; and 5) November 4, 1997 Orange County conviction for child molesting, a Class B felony. Appellant's App. Vol II at 22.

         [¶5] Tuell filed a motion to dismiss the habitual offender charge. Id. at 53-54. At the hearing on the motion, defense counsel argued that the habitual offender enhancement should be dismissed because Tuell was charged with operating a motor vehicle after forfeiture of license for life under a progressive penalty scheme, and a penalty under such a statute could not be further enhanced under the habitual offender statute. Tr. Vol. II at 11-13. In denying the motion, the trial court concluded that the habitual offender charge would not create an impermissible double enhancement. Specifically, it found and concluded as follows:

2. I.C. 35-5-2-8(e) sets forth the limitations on "double enhancement":
(e) 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. . . .
3. . . . Neither of these apply to this situation.
4. [Tuell] cites Dye v. State,972 N.E.2d 853 (Ind. 2012), afff d on reh'g,984 N.E.2d 625 (Ind. 2013), as authority that double enhancement is not permitted. In Dye, the court held that it was impermissible for the defendant's unlawful possession of a firearm by a serious violent felon conviction to be enhanced further by the general habitual offender statute. On rehearing, the supreme court further clarified that the defendant's habitual offender enhancement was vacated not merely because the serious violent felon statute, a progressive-penalty statute, and the general habitual offender enhancement were simultaneously applied, but more precisely because the past felonious conduct used as the ...

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