John Jay Lacey v. State of Indiana , 124 N.E.3d 1253 ( 2019 )

FILED
May 23 2019, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
John Jay Lacey Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Jay Lacey, May 23, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2623
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Matthew C. Kincaid,
Appellee-Plaintiff. Judge
Trial Court Cause No.
06D01-1606-F3-149
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019 Page 1 of 6
Case Summary
[1] John Jay Lacey (“Lacey”) appeals, pro se, his thirteen-year sentence
enhancement based upon habitual offender status. He raises three issues, which
we consolidate and restate as whether there was sufficient evidence to support
his habitual offender enhancement.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] On June 22, 2016, the State charged Lacey with aggravated battery, as a Level 3
felony,1 and subsequently filed a notice also seeking a habitual offender
enhancement,2 based on an October 16, 2012, Florida conviction for battery on
an officer, as a Level 3 felony,3 and a March 2, 2014, Florida conviction for
aggravated battery, as a Level 3 felony.4 On November 18, 2016, Lacey and the
State entered into a plea agreement under which Lacey pled guilty to
aggravated battery and admitted his status as a habitual offender. The plea
agreement left sentencing to the trial court’s discretion and agreed to a cap of
fourteen years on the habitual offender enhancement.
1
Ind. Code § 35-42-2-1.5 (2016).
2
I.C. § 35-50-2-8.
3
Fla. Stat. § 784.07(2)(b) (2012).
4
Fla. Stat. § 784.021(2) (2014).
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[4] On February 16, 2017, the trial court sentenced Lacey to fifteen years for
aggravated battery, enhanced by thirteen years for being a habitual offender.
Lacey filed a motion to correct erroneous sentence pursuant to Indiana Code
Section 35-38-1-15 on August 15, 2018, and the trial court denied that motion
on October 11. This appeal ensued.
Discussion and Decision
Motion to Correct Sentence/Appeal
[5] As an initial matter, we note that the State does not challenge Lacey’s right to
seek a correction of the judgment imposing the habitual offender enhancement
under Indiana Code Section 35-38-1-15. That statute permits the filing of a
motion to correct sentence when a sentence is defective on its face in light of the
statutory authority. See Woodcox v. State, 30 N.E.3d 748, 751 (Ind. Ct. App.
2015) (citing Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004)). “A sentence is
defective on its face if it violates express statutory authority at the time the
sentence is pronounced, as when the sentence falls outside the statutory
parameters for the particular offense or is based on an erroneous interpretation
of a penalty provision.” Id. (quotations and citation omitted). Lacey alleges
that his sentence violated express statutory authority at the time the sentence
was pronounced; therefore, his motion to correct sentence pursuant to Indiana
Code Section 35-38-1-15 was appropriate.
[6] Nor does the State challenge Lacey’s right to appeal his sentence, despite his
plea agreement waiving that right. Because Lacey’s plea agreement did not fix
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his sentence, he may appeal the merits of the sentence. Creech v. State, 887
N.E.2d 73, 74 (Ind. 2008) (also noting “[t]he same is true even when the
defendant agrees to a sentencing cap or range”); see also Haddock v. State, 112
N.E.3d 763, 767 (Ind. Ct. App. 2018) (citing Crider v. State, 984 N.E.2d 618, 623
(Ind. 2013)) (“[I]f a sentence imposed is illegal, and the defendant does not
specifically agree to the sentence, the waiver-of-appeal provision [in the plea
agreement] is invalid.”), trans. denied. Thus, this appeal is properly before us.
Habitual Offender Enhancement
[7] Lacey contends that the habitual offender enhancement was issued in error
because his two prior unrelated out-of-state felonies were both the equivalent of
Level 6 felonies.5 To the extent this issue requires us to interpret the meaning of
the habitual offender statutes, our review is de novo. Calvin v. State, 87 N.E.3d
474, 476 (Ind. 2017). “We then determine whether, under that interpretation,
sufficient evidence supports [the defendant’s] habitual offender enhancement.”
Id. We view the evidence in the light most favorable to the judgment, and we
will affirm that judgment unless we cannot find substantial evidence of
probative value to support it. E.g., Pierce v. State, 29 N.E.3d 1258, 1265 (Ind.
2015).
5
In his reply brief, Lacey also contends—for the first time—that he did not enter into his plea agreement
willingly and intelligibly and that he was denied effective assistance of trial counsel. However, those
arguments are waived as they may not be brought for the first time in a reply brief. See, e.g., Monroe Guar. Ins.
Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005).
Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019 Page 4 of 6
[8] At the time of Lacey’s sentencing6—i.e., February 16, 2017—Indiana law
provided that a person convicted of a Level 1 through Level 4 felony was a
habitual offender if “at least one (1) of the prior unrelated felonies is not a Level
6 felony or a Class D felony.” I.C. § 35-50-2-8(b)(2) (2017). A “Level 6 felony
conviction” was defined to include a conviction in any jurisdiction other than
Indiana “with respect to which the convicted person might have been
imprisoned for more than one (1) year.” I.C. § 35-50-2-1(a)(2) (2017). This
court and our state Supreme Court have, since at least 1991, consistently
interpreted the plain language of the latter statute as meaning “all non-Indiana
felonies count as Level 6 felonies.” Calvin v. State, 87 N.E.3d at 479 (citing
Rowold v. State, 629 N.E.2d 1285, 1287 (Ind. Ct. App. 1994); Cain v. State, 594
N.E.2d 835, 842-43 (Ind. Ct. App. 1992), clarified on reh’g, 599 N.E.2d 625 (Ind.
Ct. App. 1992); Johnson v. State, 575 N.E.2d 282, 285 (Ind. Ct. App. 1991),
trans. denied.)7
[9] Both of Lacey’s prior, unrelated felony convictions in Florida were classified as
felonies “of the third degree,” Fla. State § 784.07(2)(b) (2012), Fla. State §
784.021(2) (2014), for which Lacey could have received a term of imprisonment
6
“The sentencing statute in effect at the time a crime is committed governs the sentence for that crime.”
Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008).
7
As the State notes, in 2018 the legislature amended the definition of a “Level 6 felony” for purposes of the
habitual offender enhancement. Effective March 8, 2018, an out-of-state Level 6 felony means “a conviction,
in any other jurisdiction at any time, with respect to which the convicted person might have been imprisoned
for more than one (1) year but less than two and one-half (2 ½ ) years.” I.C. § 35-50-2-1(a)(2) (2018); P.L. 20-
2018, SEC. 1, eff. March 8, 2018. However, that amendment is irrelevant to the present case where the crime
underlying the habitual offender enhancement was committed in June of 2016, i.e., almost two years before
the amendment’s effective date. See, e.g., Harris, 897 N.E.2d at 928-29.
Court of Appeals of Indiana | Opinion 18A-CR-2623 | May 23, 2019 Page 5 of 6
“not exceeding 5 years,” Fla. Stat. § 775.082(d) (2012), Fla. Stat. § 775.082(e)
(2014). Because Lacey “might have been imprisoned for more than one (1)
year” for each of the Florida convictions, both of those convictions were treated
as Level 6 felony convictions under Indiana law in 2017. I.C. § 35-50-2-1(a)(2)
(2017). Therefore, those Florida convictions could not support a habitual
offender enhancement. I.C. § 35-50-2-8(b)(2) (2017). There was insufficient
evidence to support the thirteen-year habitual offender enhancement.8
Conclusion
[10] We reverse the judgment of the trial court on the habitual offender finding and
remand to the trial court for resentencing consistent with this opinion.
[11] Reversed and remanded with instructions.
Riley, J., and Pyle, J., concur.
8
Lacey also purports to challenge the habitual offender enhancement as an “improper” “stacked” sentence
under “the Criminal Justice Reform Bill of December 2018.” Lacey’s Br. at 14. We do not address that
claim as it is waived for failure to provide citation to any authority or make cogent argument as required
under Indiana Appellate Rule 46(A)(8). Waiver notwithstanding, given our holding, it is not necessary to
address that claim.
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