Aрpellant Dennis E. Beach was tried before a jury and convicted of burglary, a class C felony, Ind.Code § 35-48-2-1 (Burns 1985 Repl.). He was also found tо be an habitual offender, Ind.Code § 35-50-2-8 (Burns 1985 Supp.). The two year sentence imposed by the court for burglary was enhanced by thirty years by virtuе of the habitual offender determination.
Appellant raises two issues in this direct appeal:
(1) Whether two convictions are "unrelated felonies" when the existence of the first fеlony conviction causes the see-ond conviction to be a felony rather than a misdemeanor, and
(2) Whether apрlication of the mandatory thirty year enhancement violates the prohibition against cruel and unusual punishment when the principal felony is of a nonviolent nature.
I. Predicate Convictions
The State introduced two exhibits to establish that Beach was an habitual offender. One exhibit сontained certified records which indicated that an Illinois court had given Beach a sentence of one year to оne year and a day for burglary in 1976. The other exhibit documented that in 1980 Beach received a two year sentence in IIli-nois for unlаwful use of weapons. The defendant testified during the habitual offender hearing, acknowledging this convietion and sentence.
At the sеntencing hearing, defense counsel directed the court's attention to the nature of the second predicate felоny conviction. - Under Illinois law, unlawful use of a weapon is deemed to be a class A misdemeanor; if a felon commits the crime within five years of his conviction or release from prison, he "commits a class 3 felony." Ill.Ann.Stat. Chap. 38 § 24-1(a) 10, 38 § 24-1(b). Indiana has an analоgous provision. See, Ind.Code § 35-47-2-283.
Appellant argues that the State failed to prove that he had two prior unrelated felony convictions. Since the second of the predicate offenses became a felony only because of his first prеdicate felony, he contends that the two offenses are "related" for the purposes of the habitual offender statute.
Beach maintains that the weapon offense does not in and of itself constitute a felony; it becomes a felony only due to the existence of a prior felony conviction. He contends that the "previous conviction of a crime should not be utilized as a basis for an adjudication of habitual criminality under a habitual criminal statute."
The Illinois appellate court has interpreted that state's statutory phrase "any felony"
We have previously found that a foreign state's classifiсation of an offense as a felony or a misdemeanor is not relevant for purposes of establishing a prior felony сonviction when determining habitual criminal status in Indiana. Galmore v. State (1984), Ind.,
The phrase "unrelated felony" in our habitual offender statute means the predicate felony is not part of the res ges-tae of the principal offense, Erickson v. State (1982), Ind.,
Indiana has a similar weapons provision which mеrely establishes the status of felon as another element of the crime which the state must prove in order to convict the dеfendant of a felony. This Court has already determined that a defendant may be convicted of unlawful possession as a felоny by virtue of the commission of an earlier felony and then found to be an habitual offender using the same earlier conviction. The Court noted a "clear intent of the legislature ... that all persons who have been convicted of two prior felonies are subject to being found to be habitual offenders." Woods v. State (1984), Ind.,
IIL. Cruel ond Unusual Punishment
Appellant argues that the sentence imposed constitutes cruel and unusual punish ment in violation of the Eighth Amendment. He maintains that a thirty-two year sentence is disproportionate to the principal offense of burglary. Beach contends that the nonviolent nature of the offense should be considered, rather thаn simply imposing an additional thirty year penalty on all defendants found to be habitual offenders.
This Court has previously held that the enhаnced sentence provided for the recidivist offender by the habitual offender statute does not constitute cruel and unusual рunishment. Craig v. State (1985), Ind.,
The judgment of the trial court is affirmed.
Notes
. IL.Rev.Stat., ch. 38 § 1005-5-3.2(b)(1), (1979), provides that the court may impose an extended term sentence "... when a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class LJ ® felony, within ten years, excluding time spent in custody, and such charges are separately brought and tried and arise out of a different series of acts."
