Court of Appeals of Indiana | Opinion | 79A02-1409-CR-637 | April 7, 2015 Page 1 of 7

ATTORNEY FOR APPELLANT

Romy N. Elswerky

Gibson Law Office

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John W. Light,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 7, 2015

Court of Appeals Cause No.

79A02-1409-CR-637

Appeal from the Tippecanoe Superior 

Court.

The Honorable Randy J. Williams, 

Judge.

Cause No. 79D01-1403-FC-12

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, John W. Light (Light), appeals his sentence following an 

open plea, in which he pled guilty to Count I, operating a motor vehicle while 

privileges are forfeited for life, a Class C felony, Ind. Code § 9-30-10-17 (2013); 

Count II, operating a vehicle while intoxicated, a Class A misdemeanor, I.C. § 

9-30-5-2; and his adjudication as a habitual substance offender, I.C. § 35-50-2-

10(b)1.

[2] We affirm.

ISSUE

[3] Light raises one issue on appeal, which we restate as follows: Whether the trial 

court erred when it ordered Light’s conviction for operating a motor vehicle 

while privileges are forfeited for life to be served consecutively to his habitual 

substance offender sentence enhancement, attached to his Class A 

misdemeanor conviction. 

FACTS AND PROCEDURAL HISTORY

[4] On October 18, 2013, the State filed an Information charging Light with Count 

I, operating a motor vehicle while privileges are forfeited for life, a Class C 

felony, I.C. § 9-30-10-17 (2013); and Count II, operating a vehicle while 

intoxicated, a Class A misdemeanor, I.C. § 9-30-5-2. On December 17, 2013, 

 

1 This statute was repealed by P.L. 158-2013, § 664, eff. July 1, 2014. 
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the State filed an amendment to the Information, adding a habitual substance 

offender charge. On July 14, 2014, Light pled guilty to all charges in an open 

plea. On August 14, 2014, the trial court imposed an executed six years

sentence for Class C felony operating while forfeited for life, and an executed 

one-year sentence on the Class A misdemeanor operating a vehicle while 

intoxicated. The trial court enhanced the Class A misdemeanor by six-years for 

the habitual substance offender (HSO) adjudication, with three years executed 

and three years suspended. The trial court ordered the sentences to run 

consecutively, for an aggregate sentence of thirteen years.

[5] Light now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

[6] Light contends that the trial court erred by ordering his conviction for operating 

a motor vehicle while privileges are forfeited for life and his HSO sentence 

enhancement, attached to his Class A misdemeanor conviction, to be served 

consecutively. He maintains that the imposition of the consecutive sentences of 

the HSO enhancement with his sentence for operating a vehicle for life 

constitutes an impermissible double enhancement.

[7] Indiana courts have previously discussed the ways in which the Legislature has 

dealt with individuals who have proven to be repeat or habitual criminals. The 

first type, the general habitual offender statute, I.C. § 35-50-2-8 (2013), provides 

that a person convicted of three felonies of any kind are classed as “habitual 

offenders.” Beldon v. State, 935 N.E.2d 480, 482 (Ind. 2010). Habitual offenders 
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are subject to an additional term of years beyond that imposed for the 

underlying felony. Id. The second type, specialized habitual offender statutes, 

applies where the predicate underlying offenses are of a common type. Id. 

Examples are found in I.C. § 9-30-10-4 (2013), which subjects habitual traffic 

violators to an additional term of years beyond that imposed for the underlying 

traffic offense, and the statute at issue in this case, I.C. § 35-50-2-10 (2013), 

which applies to habitual substance offenders. Id. The third and final type, the 

progressive penalty statutes, is even more specialized. Id. “Under this type, the 

seriousness of a particular charge (with a correspondingly more severe sentence) 

can be elevated if the person charged has previously been convicted of a 

particular offense.” Id. (quoting State v. Downey, 770 N.E.2d 794, 795 (Ind. 

2002)). Examples of progressive penalty statutes include the statute at issue 

here, I.C. § 9-30-10-17. 

[8] Light pled guilty to a Class C felony, operating a motor vehicle while privileges 

are forfeited for life, based on the same underlying conviction in Cause No. 

79E01-0006-DF-190 (Cause DF-190) of March 11, 2002, as well as a Class A 

misdemeanor conviction with an HSO enhancement. “A person is a HSO if 

the individual has accumulated at least two prior unrelated substance offense 

convictions. See I.C. § 35-50-2-10(b). According to the charging Information, 

Light’s HSO enhancement is predicated on three prior unrelated substance 

offenses: (1) Cause DF-190, operating while intoxicated, on March 11, 2002; 

(2) Cause No. 12D01-9410-CF-89 (Cause CF-89), operating while intoxicated, 

on September 30, 1995; and (3) and Cause No. 12D01-9301-CM-32 (Cause 
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CM-32), operating while intoxicated, on May 10, 1993. Accordingly, only the 

progressive penalty statute and the specialized habitual offender statute are 

implicated in this case. 

[9] As a general rule, “absent explicit legislative direction, a sentence imposed 

following conviction under a progressive penalty statute may not be increased 

further under either the general habitual offender statute or a specialized 

habitual offender statute.” Beldon, 926 N.E.2d at 483. Although Beldon further 

holds that “the requisite legislative direction exists to authorize an underlying 

elevated conviction to be enhanced by an HSO enhancement, even if the same 

prior conviction was used to support both enhancements, we need not go there 

as the trial court did not attach the HSO enhancement to Light’s Class C 

progressive penalty conviction, but rather to his conviction for the Class A 

misdemeanor conviction, operating a vehicle while intoxicated. Id. at 484.

[10] Thus, the only issue before us is whether it is permissible to run the HSO 

enhanced sentence consecutively to the sentence for operating while forfeited 

for life, which was itself already enhanced under a progressive penalty statute. 

In Sweatt v. State, 887 N.E.2d 81, 84 (Ind. 2008), the defendant’s sexually 

violent felon (SVF) conviction and his status as a habitual offender were both 

based on the same prior rape conviction. The habitual offender enhancement 

was applied to the defendant’s conviction for burglary, not his SVF conviction. 

Id. Our supreme court held that this “d[id] not . . . create a double 

enhancement” because the prior rape conviction supported enhancements that 

operated on separate counts. Id. at 84. However, the court held that “where 
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separated counts are enhanced based on the same prior felony conviction, 

ordering the sentences to run consecutively has the same effect as if the 

enhancements both applied to the same count.” Id. 

[11] Although the trial court seemingly relied on the same Cause DF-190 to support 

both enhancements, we note that the underlying predicate offense arising out of 

Cause DF-190 is different for each enhancement. For the Class C felony 

enhancement, the predicate offense is operating a motor vehicle after driving 

privileges are forfeited for life, while the predicate offense for the HSO 

enhancement is a conviction for operating while intoxicated with a prior 

conviction.2 Nevertheless, the State was merely required to establish two prior 

unrelated substance offenses for the HSO enhancement. Thus, even though the 

State established three such offenses to sustain a valid HSO enhancement, it 

needed only two. Consequently, Cause DF-190 was entirely unnecessary to 

support Light’s HSO enhancement. Unlike Sweatt, Light’s two enhancements 

were not based on the same prior felony convictions: his Class C felony 

enhancement is based on the underlying Cause DF-190; while his HSO 

enhancement is based on the underlying Cause CF-89 and Cause CM-32. See 

Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied (when two 

separate enhancements are not based on the same prior felony conviction, 

 

2

In Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013), our supreme court expanded the doctrine to hold that 

when two felonies arise out of the same conviction, which are unrelated and not part of the same res gestae, 

then each felony is independently viewed and not considered the same prior conviction for purposes of 

enhancement. However, today we need not analyze whether the two felonies arising out of Cause DF-190 

meet these requirements as we affirm the trial court on a different ground.
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Sweatt is not controlling and the trial court’s imposition of consecutive 

sentences is not an improper double enhancement). We therefore conclude that 

the trial court’s imposition of consecutive sentences does not constitute an 

improper double enhancement under the facts and circumstances of the present 

case. 

CONCLUSION

[12] Based on the foregoing, we hold that the trial court properly ordered Light’s 

sentences to run consecutively. 

[13] Affirmed. 

[14] Baker, J. concurs

[15] Vaidik, C. J. concurs in result