Peoples v. State, 79A02-0812-CR-1141
2nd Dist., 08-28-09, Ind.App.
Attorney: Jason Bennett
Holding: There was sufficient evidence to support Defendant’s habitual offender enhancement. Felony drug convictions cannot be used as the underlying felony or prior felonies to support an habitual offender enhancement if the convictions were not elevated due to the presence of a gun or children and if “the total number of unrelated convictions that the person has for dealing . . . does not exceed one (1).” I.C. 35-50-2-8(b)(3) and (d)(3). Here, Defendant pled guilty to dealing cocaine, a Class B felony, and then after a bench trial, was found to be an habitual offender based on his prior convictions of possession of cocaine with intent to deliver and forgery. Defendant argued that because he only has one prior conviction for dealing, his prior dealing cannot be used as a prior unrelated felony and his instant conviction for dealing cannot be used as the underlying felony. However, in order for dealing to be disqualified for use in the habitual offender enhancement, the statute requires the “total number of unrelated convictions” for certain drug offenses not to exceed one. The statute does not limit the total number of unrelated convictions to prior convictions. Had the legislature intended such a limitation, it could have easily added the word “prior.” Thus, because Defendant has two underlying convictions for drug dealing, despite the fact that one is the underlying felony and the other is a prior felony, his sentence was properly enhanced by the habitual offender enhancement. Held, judgment affirmed.
