Freeman v. State
658 N.E.2d 68
Ind.
1995
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*1 FREEMAN, Appellant Todd E.

(Defendant Below), Indiana, Appellee

STATE

(Plaintiff Below).

No. 02S03-9511-CR-1307.

Supreme Court of Indiana.

Nov. Fumarolo, Gregory L. Wayne, Fort

Appellant. Carter, Attorney Pamela General Indiana, Ransdell, Louis E. Deputy Attorney General, Indianapolis, Appellee. SHEPARD, Chief Justice. Appellant Todd E. Freeman was convicted a vehicle while intoxicated. His normally offense would have been a class A misdemeanor, but the trial court enhanced it felony to a class D prior based on his similar convictions. The court ‍​​‌​‌​​‌‌​​​‌​​‌​​​‌‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌​‍enhanced his sen- tence a adjudging second time after him a habitual substance offender. He сlaims this agree. error. We I. Statement Facts police December 1989 the arrested driving Freeman for his automobile while charged intoxicated. The State Freeman in count, single First, with three contentions. alleged operated State that Freeman his vehicle while 9- *2 69 and ing him a substance offender4 (West A habitual a class misde Supp.1988),1 11-22 Second, alleged Free (2) the State there was a factual basis meanor. whether charge oper guilty plea to the to a class Frеeman's should be enhanced man's offense previously ating been while intoxicated. he had a vehicle felony D because while intoxi operating a vehicle convicted in en- hold that the trial court erred We cated, Ann. citing Ind.Code grounds hancing Freeman's sentence on the Third, (West assert ‍​​‌​‌​​‌‌​​​‌​​‌​​​‌‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌​‍ the State Supp.1988)2 substance offender. We he was a habitual substance offend was a habitual ed Freeman agree Appeals the Court of on the see- § 35-50-2- Ind.Code Ann. in violation of er a factual basis did exist ond issue-that (West Supp.1994).3 10 summarily affirm plea-and thus Freeman's plea entered into a subsequently Freeman Ind.Appellate Rule their determination. - 11(B)(8). pled guilty to which he agreement under intoxicated as a while oрerating a vehicle exchange the State felony. In

class D Enhancement II. Double Penalty years, with two of three Freeman's agreed to a sentence agreed to defer years suspended. It also en claims the trial court twicе Freeman on the habitual conditionally any proceedings intoxi operating a vehicle while hanced his years, charge for four offender substance ("O.W.I.") first, it conviction: when cated complete an during Freeman was which charge a class him of the O.W.I. as convicted approved court program. The aleohol abuse A felony instead of a class misdemeanor D judgment in ac- agreement and entered this second, and, his sentence when it enhanced suspended The court also cordance with it. adjudicating him a substance of by habitual year. driving privileges for one Freeman's legislature did not fender. He contends 1993, court revoked Freeman's en July habitual substance offender intend the Ac- its terms. probation apply after he violated to O.W.I. convictions hancement original court ordered the cordingly, enhancement was therefore alleges the second imp agree. roper.5 We re- year to be served and threе sentence the habitual offender proceedings on sumed Overlapping A. Statutes a habitu- finding Freeman to be claim. After Assembly imposed progres- The General offender, his the court enhanced al substance repeat offenses punishment scheme for sive by year. one sentence it en- involving substances when controlled Appeals, appealed to the Court of Freeman (West Ann. acted Ind.Code but found the affirmed his conviction which commits two Supp.1994). ‍​​‌​‌​​‌‌​​​‌​​‌​​​‌‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌​‍A defendant who enhancement substance to a offenses is unrelated substance (1995), improper. Freeman v. State eight years up sentence grant the State's App., N.E.2d 1134. We 647 sub- for his third unrelated upon conviction petition for transfer. broadly de- Id. The stаtute stance offense. A any "Class offense" as (1) fines a "substance the issues as follows: consolidate felony involving D enhancing or Class misdemeanor the trial court erred Whether abuse, use, delivery, transporta- possession, a second time after find- sentence Freeman's statutory grounds, this we need not address on 1. Recodified at issue. at Ind.Code Ann. 2. Recodified alleges vio- these enhancements 5. Freeman also provisions. myriad Because constitutional lated statutory grounds dispose of this issue on we allegation this based on Free- 3. The State made argument presents cogent on these no because he requisite predicate of the of- man's commission operating them. was convicted of we need not address fenses. He claims, Superior 1988, in 1986 and both times while intoxicated 281, Ind., Carr Constr. Co. v. A misdemeanant. ("[Wle as a class constitu- decide cases do not upon upon they grounds can be decided when tional adequacy challеnges of the 4. Freeman also 8.3(A)(7). Ind.Appellate grounds."); Rule other supporting habitual offender deter- evidence determination we vacate that mination. Because tion, drugs." or manufacture of alcohol or possible. them wherе Schrenker v. Clifford plain Id. Based on the of this 270 Ind. 387 N.E.2d 59. statute, one who commits three unrelated presumed to have offenses, such as a vehi- ‍​​‌​‌​​‌‌​​​‌​​‌​​​‌‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌​‍existing statutes in adopts mind when it cle while is a habitual substance *3 See, new law. eg., Stage McClarnon offender ‍​​‌​‌​​‌‌​​​‌​​‌​​​‌‌​‌‌​​​​​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌​‍may whose sentence the court en- 157, 215 Ind. 19 N.E.2d 252. When hance. Id. harmonized, however, the statutes cannot be The habitual substance offender statute is legislature and the subject dealt with a in a not, however, only the code section in which detаiled manner in gen one statute and in a legislature prescribes progressive punish other, eral in manner the detailed statute Assembly ment. The General created a supersede general will one. Sanders v. scheme with a similar result for defеndants (1984), Ind., State 466 N.E.2d 424. operating convicted of a vehicle while intoxi The two statutes at issue are difficult (West cated. Ind.Code Ann. ch. 911-2 to harmonize. Both progressive constitute a Supp.1988).6 chapter provides This that one justice scheme of which attaches at the de operating who is convictedof a vehicle while fendant's first O.W.I. conviction. Construing intoxicated, again and then is convicted with these operate statutes somehow to consecu years, in guilty five is felony. of a class D tively would eliminate each statute's lan 9-11-2-8, Id. Without Section a defendant guage pertaining starting point-the its would be convicted of a mere class A misde first Construing conviction. running them as meanor for both subsequent his first and concurrently negates the enhancement effect (West § offenses.7 Ind.Code Aun. 9-11-2-8 of the conviction with the shorter sentence. Supp.1988). question therefore turn to the of which As the of Section 35-50-2-10 and intended courts Chapter reveals, 9-11-2 person a convicted employ repeaters. for O.W.I. repeat of may subject offenses be to the progressively punishments severe of both C. Which Proper? Enhancement is question statutes. The is legis- whether the Chapter provides 9-11-2 progressively se lature intended such a result. penalties vere for defendants who are re Legislative B. Intent peatedly convicted of long We have held that when con while intoxicated. It covers two kinds of struing statute, a primary goal (1) our is to violations: operating with less than .10% legislative determine and effect intent. Park blood aleohol content or with blood contain 100 Dev. Co. v. Dept Indiana ing State Rev. a substance, schedule I or II controlled a of (1981), Ind., 220, ("[The (2) misdemeanor, class C operating whilе objective foremost statutory the rules of A class misdemeanor. (West §§ construction is to the Code Ann. 9-11-2-1 to -2 determine and effect Supp. legislature."); 1988).8 true intent of the State v. penalties Gil for these offenses be bert 247 Ind. 219 N.E.2d 892 progressively comе more severe when com (court must (West mitted years, § legislative within five determine in 9-11-2-8 intent statutes). construing Moreover, where Supp.1988),9 two resulting when in bodily serious (West injury, § statutes subject, 9-11-24 address the Supp.1988),10and they same are materia, pari in and we strive tо resulting death, (West harmonize when in 9-11-2-5 Ann., (West 6. Recodified at Ind.Code ch. 9-30-5 8. §§ Recodified at Ind.Code Ann. -2to 1992). (West 1992). 7. Should Recodified at defendant be convicted Ind.Code Ann. of three years, times within ten he would be increasingly penalties serious as a "habituаl vio- (West 1992). lator." Ind.Code Ann. 10. Recodified at See discussion C, Part infra. enhancement, repeated or Punishment Supp.1988).11 punish- progressive not contain and does obviously than worse violations aggravated severity. frequency or based on mеnts violations, the most for first-time those Moreover, part larger of a is not this offense for the worst being imposed penalty severe punishment. progressive scheme (class operation of felony for C offense death). causing anаlysis intoxicated Ultimately, vehicle while of the two statuto- our Chapter 9-11-2 as the reveals ry schemes this include Chapter 9-11-2 only does Not specific; Section 85-50- more detailed punishment system progressive detailed repeat generаl prohibition on 10-2 remains a severity, frequency and on based for O.W.L.'s activity or con- regardless of the offenses greater scheme part of a it is also but The former involved. trolled substance offenses involv progressive punishment the latter. See Sand- supersedes therefore §Ann. 9- See Ind.Code ing motor vehicles. *4 ers, (employing statute at 428 466 N.E2d Repeated viola Supp.1988).12 12-1-4 to crime's re- defining defenses specifically the that fall within Chapter 9-11-2 tions rea, dealing than statute quired mens rather designated short, statutorily periods defined terms). Chapter culpability general in a defendant in Section only enhancement thus the 9-11-2 is viola as a "habitual sentence subject. have been Freeman should which vio adjudicated a "hаbitual tor." Id. Once point is consistent on this conclusion Our defendant's may the court enhance lator" the ques nearly identical of a with our treatment Obviously, severely. the more sentence even (1992), Ind., 608 in v. State tion Stanek to im framework legislaturе intended this Arti In we held former 152. Stanek proportion in direct gradual punishment pose title,13which Motor Vehicles cle 12 of the offenses. to the offenses, traffic to be various prohibited contrast, offend- the habitual provided it offender statute because habitual trig- broadly the activities er statute defines those it penalties for "increasingly serious A misde- any as "Class gering enhancement of traffic laws." habitual violators as define[d] possession, felony in which the or a meanоr Acknowledging that the Id. at 158. - abuse, transportation, or manu- use, delivery, offend general Article 12 and 14 drugs a material or facture of alcohol to twice en permitted a court statute er 35-50-2-10(a). A of the erime." element sentence, that concluded we hance Stanek's by a defendant's sentence may enhance court intend such a result. legislature did not where he years "discreet, under this statute up eight Rather, Article because offenses. unrelated substance cоmmits three habitual offender independent separate, and any further in provide statute," not does held the Id. The statute this Court regardless of the to en only Article be used punishments, that progressive tended offenses, long Id. at 158-54. so sentence. severity of the hance Stanek's frequency or or a class A misdemeanor offense is as the relationship in the sort of the same We see greater. Chapter today. Because us statutes before regu- specifically statute that is thе 9-11-2 in at issue schemes punishment two convictions, super- it punishment lates Chapter markedly different. this action are 35-50-2-10. sedes Section specific combination 9-11-2 delineates required for aleohol III. Conclusion conviction, particular time as the as well By con- it must occur. which habitual substance frame within Freeman's reverse The trial court's de- broadly enhancement. trast, defines Section 30-50-2-10 respects. in all other is affirmed triggers cision activity which substances Ann., (West Supp.1988) art. 9-12 13. Ind.Code Ann. at Ind.Code 11. Recodified Ann., (recodified art. 9-30 at Ind.Code (West 1992). Ann. at Ind.Code 12. Recodified (West Supp. Ann. 14. Ind.Code (West Supp.1994). DeBRULER, SELBY, JJ., DICKSON and

concur.

SULLIVAN, J., separate dissents with

opinion.

ON PETITION TO TRANSFER

SULLIVAN, Justice, dissenting.

I majority's opinion dissent from the

this case for the reasons set my forth in

dissenting opinion in Devore v. State

Ind., 657 N.E.2d adopt I would

analysis of this Judge case set forth in Na-

jam's opinion in Devore v. State

App., 37, 41-43, 650 N.E.2d by vacated De (1995), Ind.,

vore v. State 657 N.E.2d 740.

Gerry BUTLER, Appellant

(Petitioner Below), Indiana, Appellee

STATE of Below).

(Respondent

No. 45S03-9502-PC-247.

Supreme Court of Indiana.

Nov.