Opinion
24A-CR-589
10-10-2024
Lazarus Turner White, II, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court Trial Court Cause No. 48C06-2306-F4-1599 The Honorable Mark K. Dudley, Judge
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge
[¶1] Lazarus Turner White, II appeals his adjudication as a habitual offender. White raises a single issue for our review, namely, whether the trial court's finding that he is a habitual offender is based on an impermissible double enhancement.
[¶2] We affirm.
Facts and Procedural History
[¶3] In June 2023, the State filed an information against White, which the State subsequently amended. According to the State's last-amended information, White had committed Level 4 felony unlawful possession of a firearm by a serious violent felon (the "instant SVF count"), Level 5 felony criminal recklessness, and Level 6 felony pointing a firearm. The last-amended information also alleged White to be a habitual offender.
[¶4] The State's charge for the instant SVF count alleged that White was a serious violent felon because he had previously been convicted of Class B felony burglary in 2007 (the "2007 burglary conviction"). Appellant's App. Vol. 2, p. 105. The habitual offender charge alleged that White had the following two other prior unrelated felonies: Level 6 felony failure to return to lawful detention, which White had committed in December 2016 and for which he was sentenced in May 2017; and Level 4 felony unlawful possession of a firearm by a serious violent felon, which White had committed in June 2017 and for which he had been sentenced in December 2018 (the "2018 SVF conviction"). The State had also used White's 2007 burglary conviction to prove White's status as a serious violent felon in support of his 2018 SVF conviction. Tr. Vol. 2, p. 98.
[¶5] At the commencement of White's bench trial in January 2024, White pleaded guilty to the three felony allegations but denied that he was a habitual offender. The court then heard the State's evidence on the habitual offender allegation. White did not present evidence on his own behalf and instead argued only that, as a matter of law, he could not be found to be a habitual offender because the same Class B felony burglary conviction had been used to establish White's status as a serious violent felon for both the instant SVF count and also the 2018 SVF conviction. Tr. Vol. 2, pp. 96-97.
[¶6] The trial court rejected White's challenge and adjudicated him to be a habitual offender. This appeal ensued.
Discussion and Decision
[¶7] White challenges the trial court's legal conclusion regarding what qualifies as a predicate offense for a habitual offender adjudication. White's challenge is a question of law, which we review de novo. Culver Cmty. Tchrs. Ass'n v. Ind. Educ. Emp. Rels. Bd., 174 N.E.3d 601, 604 (Ind. 2021). Insofar as his argument on appeal requires us to interpret relevant statutes, our Supreme Court has made clear that,
[w]hen construing a statute, our primary goal is to determine and effectuate the legislature's intent. To discern that intent, we first look to the statutory language and give effect to its plain and ordinary meaning. Where the language is clear and
unambiguous, there is no room for judicial construction. We presume the legislature intended the statutory language to be applied logically and consistently with the statute's underlying policy and goals, and we avoid construing a statute so as to create an absurd result.Id. at 604-05 (citations and quotation marks omitted).
[¶8] The parties agree that the relevant statutory language is found in the general habitual offender statute, Indiana Code § 35-50-2-8 (2022). That statute provides in relevant part that "a prior unrelated felony conviction may be used to support a habitual offender determination even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense." I.C. § 35-50-2-8(e). Thus, the plain language of the general habitual offender statute permits a previously enhanced offense to serve as a predicate offense to demonstrate that the defendant is a habitual offender.
[¶9] Despite that language, our Supreme Court has placed some limits on which offenses may be used as predicate offenses where, as here, the defendant is also being convicted under a progressive-penalty statute like unlawful possession of a firearm by a serious violent felon. In particular, and essential to White's argument on appeal, is our Supreme Court's opinion in Dye v. State, 984 N.E.2d 625 (Ind. 2013). In Dye, our Supreme Court considered the State's use of a 1998 conviction of attempted battery with a deadly weapon to show that the defendant was a serious violent felon. At the same time, the State also used a 1998 conviction for possession of a handgun within 1,000 feet of a school to support its allegation that the defendant was a habitual offender. Both of the 1998 convictions arose from the same set of facts and had been charged under the same cause number.
[¶10] Our Supreme Court initially reaffirmed long-standing precedent 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.'" 984 N.E.2d at 628 (quoting Mills v. State, 868 N.E.2d 446, 447 (Ind. 2007)). The Dye Court then went further and concluded that a person convicted of unlawful possession of a firearm by a serious violent felon also may not have his or her sentence enhanced under the general habitual offender statute by proof of "a felony that was part of the same res gestae" as the felony used to establish that the person was a serious violent felon. Id. at 629. Facts are within the same res gestae when they "are part of the story of a particular crime," "part of an uninterrupted transaction," and "continuous in . . . purpose and objective ...." Id. Thus, our Supreme Court held that the State's use of both 1998 convictions, albeit with one to establish the defendant's status as a serious violent felon and one to establish a predicate offense under the general habitual offender statute, impermissibly subjected the defendant to a double enhancement. Id.
[¶11] We agree with the State that Dye is inapposite here and that the plain language of the general habitual offender statute controls. The State used White's 2007 burglary conviction to establish White's status as a serious violent felon in the instant SVF count. But White's 2007 burglary conviction was not a predicate offense used to adjudicate White as a habitual offender. Nor was it within the res gestae of either of the two offenses that were used to support that adjudication. While White's 2007 burglary conviction was evidence showing White to be a serious violent felon in support of his 2018 SVF conviction, the facts underlying the 2007 burglary were not within the res gestae of the facts underlying the 2018 SVF conviction, and neither were the facts underlying the 2018 SVF conviction within the res gestae of the instant SVF count.
[¶12] Accordingly, the trial court did not err as a matter of law when it relied on White's 2018 SVF conviction to support its conclusion that White is a habitual offender. We affirm his adjudication as a habitual offender accordingly.
[¶13] Affirmed.
Brown, J., and Kenworthy, J., concur.