Richard L. Fippen v. State of Indiana (mem. dec.)
35A02-1702-CR-451
| Ind. Ct. App. | Nov 14, 2017Background
- In Feb. 2008 Fippen was charged in FC-13 with Class C burglary and an accompanying charge; he agreed to plead guilty to burglary and admit habitual-offender status while the State dismissed a separate count. Sentencing was left open to the court with a four-year cap on any initially executed time from the habitual-offender enhancement per the plea agreement.
- At the June 2008 sentencing the trial court imposed 7 years for burglary (2 years suspended), added an 8-year habitual-offender enhancement (4 years suspended), and ordered the FC-13 sentence to run consecutive to a separate two-year sentence in FC-12.
- In Feb. 2017 Fippen filed a pro se motion to correct erroneous sentence under Ind. Code § 35-38-1-15, challenging the habitual-offender enhancement as erroneous.
- Fippen’s two principal arguments: (1) the prior convictions the State relied on did not properly establish habitual-offender status; and (2) the habitual-offender enhancement improperly included suspended time.
- The trial court denied the motion; the Court of Appeals affirmed, holding the challenge to the predicate convictions was not proper for a motion to correct sentence and that, given statutory law in effect in 2008 and controlling precedent (as clarified by Bauer), suspending part of a habitual-offender enhancement was permissible at that time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying Fippen’s motion to correct erroneous sentence | State: sentencing was lawful; motion to correct is limited to facial sentencing errors | Fippen: habitual-offender enhancement is erroneous because prior convictions don’t support habitual-offender status | Denied — challenge to predicate convictions is not proper in a motion to correct sentence (must be raised on direct appeal or collateral review) |
| Whether the habitual-offender enhancement was erroneous because it included suspended time | State: statutes in effect in 2008 permitted suspension as explained by Bauer | Fippen: Howard/Reffett/Williams support that habitual enhancements may not be suspended | Denied — under the statutes and case law applicable in 2008 (Bauer), habitual-offender enhancements could include suspended time; later statutory amendments made enhancements nonsuspendible but do not apply retroactively here |
Key Cases Cited
- Neff v. State, 888 N.E.2d 1249 (Ind. 2008) (describing scope and purpose of motion to correct erroneous sentence)
- Robinson v. State, 805 N.E.2d 783 (Ind. 2004) (motion to correct limited to facial sentencing errors; other errors require direct appeal or post-conviction relief)
- Howard v. State, 873 N.E.2d 685 (Ind. Ct. App. 2007) (held habitual-offender enhancements may not be suspended under earlier precedent)
- Reffett v. State, 844 N.E.2d 1072 (Ind. Ct. App. 2006) (addressed suspension of habitual enhancements relying on Williams)
- State v. Williams, 430 N.E.2d 756 (Ind. 1982) (interpreted 1979 statute to prohibit suspension of habitual-offender enhancement)
- Bauer v. State, 875 N.E.2d 744 (Ind. Ct. App. 2007) (clarified that after statutory revisions habitual-offender enhancements could be suspended under the law then in effect)