THE HONORABLE CALE J. BRADFORD AND ALEX J. DUDLEY, Attorney, Law Clerk to Chief Judge Cale J. Bradford of the Court of Appeals of Indiana.
Chief Judge Bradford was appointed to the Court of Appeals of Indiana in 2007. Prior to that, he served as a judge for the Marion Superior Court, seven years in the criminal division and three in the civil division. Prior to joining the bench, Chief Judge Bradford was a litigator in both federal and state courts. Chief Judge Bradford would like to express his sincere thanks to his co- author Alex Dudley for the energy and intellect he has given this Article. His talents and presence will serve our profession well for years to come.
“Eleven times I been busted, eleven times I been to jail . . . Double trouble— that’s what my friends all call me.” While this is just a lyric to an old Lynyrd Skynyrd song, all too often it describes the situation in which recidivists find themselves. In order to curb recidivism in the State of Indiana, the General Assembly has enacted multiple recidivism statutes, resulting in an increase to the possible sentencing range for a defendant’s conviction. Moreover, the General Assembly has provided for situations in which a defendant may be subjected to multiple recidivism statutes, permitting double enhancement of the defendant’s sentence. This article will address the applicable recidivism statutes and the instances where said statutes can be applied simultaneously. It will outline the statutory authority and relevant case law that provides the ongoing conversation between the General Assembly and Indiana appellate courts regarding double enhancement. Our goal is for this article to be a guide for trial judges and practitioners in understanding the various recidivism statutes enacted in Indiana and the situations in which double enhancement of a defendant’s conviction pursuant to multiple recidivism statutes is permissible.
“The general rule is that, ‘absent explicit legislative direction, a sentence imposed following a conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.’” Likewise, absent explicit legislative direction, a conviction under a specialized habitual offender statute cannot be further enhanced under the general habitual offender statute. Therefore, double enhancement is not permitted unless the General Assembly has explicitly authorized double enhancement in the relevant statute. In analyzing double enhancement issues, the court determines whether a defendant’s underlying conviction is pursuant to a progressive penalty statute or a specialized habitual offender statute; if neither, there is no double enhancement issue. If so, then the court reviews the relevant statute (i.e. the general habitual offender or specialized habitual offender statute) to determine whether the General Assembly has explicitly authorized double enhancement of the underlying conviction. For example, if a defendant was convicted of Level 5 felony carrying a handgun without a license, which is a progressive penalty statute (a Class A misdemeanor enhanced to a Level 5 felony due to a prior conviction for the same offense), and alleged to be a habitual offender, then the court would review the general habitual offender statute to determine whether the General Assembly has explicitly permitted this type of double enhancement. The Indiana Supreme Court has explained that double enhancement jurisprudence is part of an ongoing dialogue between the appellate courts and the General Assembly. [Read entire Article here].