A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE P. Stephen Miller Curtis T. H ill, Jr. Fort Wayne, Indiana Attorney General of Indiana

Ellen H. Meilaender Laura R. Anderson Andrew A. Kobe Deputy Attorneys General Indianapolis, Indiana

_______________________________________________________________ _______________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 02S03-1709-CR-611

D ARRYL C ALVIN , Appellant (Defendant),

v.

S TATE OF I NDIANA , Appellee (Plaintiff).

_________________________________ Appeal from the Allen Supe rior Court 6, No. 02D06-1604-F4-30 The Honorable John F. Surbeck, Jr., Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1701-CR-93

_________________________________ December 21, 2017 Rush, Chief Justice.

Indiana’s habitual-offender statutes count all prior non-Indiana feloni es as Level 6 felonies and do not allow a habitual-offe nder finding based only on two Level 6 felonies. Relying on these statutes, Calvin argues that his two prior Illinois felonies ar e insufficient to support his habitualoffender enhancement. The State responds that this result is ab surd, so we should graft new language onto the statutes.2 We reject the State’s invitation. The habitual-offender statut es’ plain meaning, though curious, has prevailed in Indiana for nearly thirty years. Judi cially rewriting it now would violate separation-of-powers principles and our strict construction of criminal statutes. We thus reverse Calvin’s habitual-offender enhancement for insufficient evidenc e and remand to the trial court. Facts and Procedural History Darryl Calvin broke into a Fort Wayne home and stole a PlaySta tion 4, a sixty-inch plasma television, and a pair of gym s hoes. Thanks to a vigilant neigh borhood watch, he was promptly caught and arrested. The State charged Calvin with Level 4 felony burglary and alle ged that he was a habitual offender based on two prior convictions. Both of those convicti ons were Class 1 felony residential burglary convictions from Illi nois—one from 1992 and the other from 1998. A jury convicted Calvin on the new burglary charge and found that he was a habit ual offender. The trial court sentenced him to six years for the burglary, and ten additional years for the habitual-offender enhancement. Calvin challenged the enhancement on appeal, arguing that his t wo Illinois felonies could not make him a habitual offender since Indiana’s habitual-offen der statutes treat all non-Indiana felonies as Level 6 felonies, and two Level 6 felonies cannot s upport the enhancement. The State responded that this reading leads to absurd results by treating defendants differently based on where they committed their prior offenses. The Court of Appeals affirmed Calvin’s habitual-offender enhan cement. First, it agreed with the State that the absurdity doctrine applied. Calvin v. S tate, 80 N.E.3d 226, 228–29 (Ind. Ct. App. 2017). Then, the court compar ed Calvin’s Illinois burglari es to burglary in Indiana and concluded that his out-of-state convictions should be treated a s Level 4 felonies. Id. at 229. We granted Calvin’s petition to transfer, vacating the Court o f Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review We first address the meaning of Indiana’s habitual-offender sta tutes. This is an issue of statutory interpretation, so our review is de novo. Day v. Stat e, 57 N.E.3d 809, 811 (Ind. 2016).3 We then determine whether, under that interpreta tion, sufficien t evidence supports Calvin’s habitual-offender enhancement . See id.; Pierce v. State, 29 N.E .3d 1258, 1264–65 (Ind. 2015).

Discussion and Decision Under the plain meaning of Indiana’s habitual-offender statute s, prior non-Indiana felonies count as Level 6 feloni es. The State argues that this leads to absurd results, but we decline to cast aside the plain meaning through t he absurdity doctrine.

I. Indiana’s Habitual-Offender St atutes Treat Non-Indiana Felon ies as Level 6 Felonies. A habitual-offender finding is not a separate crime, but an en hancement that attaches to an underlying felony. Ind. Code § 35-50-2-8(j) (2017). Here, Calvin’s Level 4 felony burglary conviction was enhanced under I ndiana Code subsection 35-50-2-8 (b): (b) A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the state proves beyond a reasonable doubt that: (1) the person has been convicted of two (2) prior unrelated felonies; and (2) at least one (1) of the prior unrelated felonies is not a L evel 6 felony or a Class D felony. I.C § 35-50-2-8(b) (Supp. 2016). But Calvin argues that he cannot be a habitual offender under subsection 8(b) because both of his prior felonies count as Level 6 felonies. He relies on t he statutory definition of “Level 6 felony conviction”: (a) As used in this chapter, “Level 6 felony conviction” means: (1) a conviction in Indiana for: (A) a Class D felony, for a crime committed before July 1, 2014; or (B) a Level 6 felony, for a crime committed after June 30, 2014; and (2) a conviction, in any other ju risdiction at any time, with respect to which the convict ed person might have been imprisoned for more than one (1) year. I.C. § 35-50-2-1(a) (2014). So Calvin contends that his two pri or Illinois convictions are Level 6 felonies under subsection (a)(2) and thus canno t support his ha bitual-offender enhancement.4 For most of this appeal, the St ate agreed with Calvin’s plain- meaning interpretation of these statutes and argued only that it led to absurd results. B ut at oral argument, the State noted for the first time that the definitions section defines the term “L evel 6 felony conviction ,” I.C. § 35- 50-2-1(a) (emphasis added), while the habitual-offender statute says only “Level 6 felony,” I.C. § 35-50-2-8(b). The parties’ initial agreement was correct. 1 Applying the defined term “Level 6 felony conviction” to subsection 8(b) gives meaning to the legislature’s decision to include non-Indi ana felonies in the definition of a “Level 6 felony conviction.” I.C. § 35-50-2-1(a)(2). That part of the definition would serve no purpose if it applied only where the legislature used the full “Level 6 felony conviction” term. See I.C. §§ 35-50-2-6(c), -7(d), (f) (2014); In re ITT Derivative Litig., 932 N.E.2d 664, 670 (In d. 2010) (“We interpret a statute in ord er to give effect t o every word and render no part meaningless if it can be reconciled with the res t of the statute.”). Applying the “Level 6 felony conviction” definition in subsect ion 8(b) also aligns with nearly thirty years of Indiana precedent. Our Court of Appeals has consistently said that the habitual-offender statutes count non-Indiana felonies as the lo west-level Indiana felonies. See Rowold v. State , 629 N.E.2d 1285, 1287 (Ind. Ct. App. 1994); Cain v. State, 59 4 N.E.2d 835, 842– 43 (Ind. Ct. App.), clar ified on reh’g, 599 N.E.2d 625 (Ind. Ct . App. 1992); Johns on v. State, 575 N.E.2d 282, 285 (Ind. Ct. App. 1991), trans. denied. In fact, J udge Shields dissented in Johnson, making the same argument the State makes today. 575 N.E.2d at 2 86–87 (Shields, J., dissenting) (“I find it difficult to accept the legislature intended to sho w favoritism and leniency to out-ofstate felons.”). We denied trans fer, leaving intact Johnson’s s tatement that weighing Indiana felonies heavier than non-Indiana felonies “appears to be the u nmistakable choice of the legislature.” Id. at 285 (majority opinion). We finally note that if non-I ndiana felonies could count as so mething other than Level 6 felonies, we would need a method for deciding what level to ass ign them. Yet the legislature has not provided one. This absence of legislative direction contras ts with the many st atutes where the legislature allows the use of non-Indiana convictions if their elements are “substantially similar to

1 We generally agree with the State’s more recent argument that d efined terms apply only when the legislature uses the exact defined term. See Chi. & E. Ill. R.R. v. State ex rel . Ketcham, 153 Ind. 134, 139, 51 N.E. 924, 926 (1898) (“[W]here the legislature expressly states the meaning which is to be given to a term used in an act, that meaning must be given to such term as so used.”).5 the elements of” corresponding Indiana convictions. E.g., Ind. Code §§ 4-33-8-11(d), (e), -35-6.5- 11(d), (e) (2017) (disq ualifications for riv erboat and racetrac k gambling licenses); I.C. § 7.1-1-3- 13.5 (2017) (definition of “[c]onvi ction for operating while in toxicated”); I.C. § 31-19-9-8(a) (2017) (exceptions to parental consent for adoption); I.C. § 33 -23-6-2(f) (2017) (ineligibility for mediation); I.C. §§ 35-42-2-1(g), -1.3(b) (2017) (elevations fo r battery and domestic battery); I.C. § 35-47-4-5(a) (2017) (unlawful possession of a firearm by a se rious violent felon). Here, the lack of a statutory method for compar ing non-Indiana convictions bol sters the plain-language mandate that all non-Indiana felonies c ount as Level 6 felonies for hab itual-offender enhancements. 2 With this plain meaning in hand, we turn to the State’s claim t hat it leads to absurd results. II. We Will Not Increase Criminal Liability by Rewriting Unambi guous Statutes Through the Absurdity Doctrine. The absurdity doctrine is strong medicine; it defeats even the plain meaning of statutes. Morgan v. State, 22 N.E.3d 570, 575 (Ind. 2014) (citing Storms v. Stevens, 104 Ind. 46, 50, 3 N.E. 401, 403 (1885)). Here, we will not prescribe it to defeat a st atutory plain meaning upheld by a trifecta of cases da ting back to 1991. See Rowold , 629 N.E.2d at 1287; Cain, 594 N.E.2d at 842– 43; Johnson, 575 N.E.2d at 285. As explained above, the first o f these cases was decided over a strong and well-reasoned dissent making the same absurdity argu ment the State now raises. Johnson, 575 N.E.2d at 286–87 (Shields, J., dissenting). That a rgument is less compelling today, now that the plain meaning has prevailed—and functioned—for nea rly three decades. Invoking the absurdity doctrine here would also expand crimin al liability beyond the habitual-offender statutes’ long-settled plain meaning—a result at odds with separation-of-powers principles and our narrow construc tion of criminal statutes. Separation of powers is explic it in our Constitution. Ind. Con st. art. 3, § 1. And the power to legislate “is vested exclusively in the Legislature under Ar ticle 4, Section 1 of the Indiana Constitution.” Paul Stieler Enters. v. City of Evansville, 2 N. E.3d 1269, 1277 (Ind. 2014). We accordingly cannot rewrite statutes: The courts cannot venture upon th e dangerous path of judicial legislation to supply omissions or remedy defects in matters

2 Even if we could agree with the dissent that these statutes ar e ambiguous, we could not ignore the rule of lenity’s decree that ambiguity “ must be resolved against the penalty.” Dye v. State, 984 N.E.2d 625 , 630 (Ind. 2013) (emphasis added).6 committed to a co-ordinate branch of the government. It is far better to wait for necessary correcti ons by those authorized to make t hem, or, in fact, for them to remain un made, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers. R.R. Comm’n of Ind. v. Grand Trunk W. R.R., 179 Ind. 255, 263–6 4, 100 N.E. 852, 855 (1913). On top of that, the legislature is constitutionally subject to process require ments and political responsibility in ways that the judiciary is not. See Ind. Cons t. art. 4 ; John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2431, 2437 (2003). The absurdity doctrine implicates these bedrock principles and thus must be carefully applied—especially to plain-mean ing statutes with broad applica tion. Declaring a plain meaning absurd tells the legislature tha t it may not legislate in that way even if it uses the clearest terms; it invokes “the serious judicial act of declaring certain matters beyond the reach of the political branches.” Manning, supra at 247 6. That is a bold declaration, even for a single unforeseen application at a statute’s peri phery. It would be far more dras tic here, at the core of the broad habitual-offender statutes. Such a sweeping decision falls more into the policy-setting role of the legislature and less into the j ob of the judiciary to decide in dividual cases. City of Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 587 (Ind. 2017) (“The consti tution empowers the legislative branch to make law; the judicial branch to decide cases.” (quot ing Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoho lic Beverage Comm’n, 695 N.E.2d 99, 107 (Ind. 1998))). Separation of powers ties into another reason we do not apply the absurdity doctrine: our narrow construction of criminal statutes. See Bond v. State, 51 5 N.E.2d 856, 858 (Ind. 1987) (“[Criminal statutes] may not be enlarged beyond the fair meani ng of the language used and may not be held to include offenses other than those clearly define d.”). One of the two principles underlying this rule is that “legislatures, not courts, should decide what conduct is criminal.” Day, 57 N.E.3d at 814. Equally compelling is the second principle underlying our narr ow construction of criminal statutes—that they “should give fair warning about what conduct they prohibit,” id. This principle applies most often through the ru le of lenity, which requires u s to interpret ambiguous criminal statutes “in the defendant’s favor as far as the language can r easonably support.” Id. at 813. And it weighs even more heavily when the plain meaning is in the defendant’s favor. How can a defendant have fair warning about criminal liability that has n o basis in the law’s plain meaning?7 Such a result would raise seri ous due-process concerns. See Bro wn v. State, 868 N.E.2d 464, 467 (Ind. 2007). For these reasons, we will not apply the absurdity doctrine as an exception to our longstanding rule that we cannot extend criminal statutes through i nterpretation. See State v. Bruner, 135 Ind. 419, 422–23, 35 N.E. 22, 23–24 (1893). To be clear, we are not abolishing the absurdity doctrine, which we have consistently applied since the early da ys of our 1851 Constitution. See, e.g., Morgan, 22 N.E.3d at 576; Coleman v. State, 253 Ind. 627, 632–33, 256 N.E.2d 389, 391 (1970); Helms v. Am. Sec. Co. of Ind., 216 Ind. 1, 8–9, 22 N.E. 2d 822, 825 (1939); State v. Sopher, 157 Ind. 360, 372, 61 N.E. 785, 789 (1901); City of Jeffersonvi lle v. Weems, 5 Ind. 547, 549 (1854). This case, though, falls outside the doctrine’s boundar ies. Regardless of whether we can discern the legislature’s reasons for writing the habitual-offe nder statutes as it did, we cannot rewrite—and certainly cannot bro aden—them through the absurdity doctrine. Any change must instead fall to the legisla ture’s corrective pen.

Conclusion

Under Indiana’s habitual-offende r statutes, all non-Indiana fe lonies count as Level 6 felonies. Yes, this is peculiar and leads to incongruous result s—especially when the non-Indiana felonies are grievous. But this plain meaning has prevailed for nearly three decades, and separation of powers and our strict construal of criminal statutes stop us from declaring it absurd.

Calvin’s two Illinois felonies t hus count as Level 6 felonies under the habitual-offender statutes. But Indiana Code subsection 35-50-2-8(b) does not allow a habitual-offender enhancement based only on two Level 6 felonies. We therefore reverse Calvin’s habitual-offender enhancement as unsupported by sufficient evidence and remand fo r retrial on that enhancement. See Dexter v. State, 959 N.E .2d 235, 240 (Ind. 2012) (“[R]etria l on a sentencing enhancement based on a prior conviction is permitted even where the enhance ment is reversed because of insufficient evidence.”). David, Slaughter, and Goff, JJ., concur. Massa, J., dissents with separate opinion.Massa, J., dissenting.

Absurd results don’t always tri gger the absurdity doctrine. Th e Court’s opinion explains why that is wise. As it notes with respect to separation of po wers, “‘the serious judicial act of declaring certain matters beyond the reach of the political bra nches’” should almost always be avoided. Supra at *6 (quoting John F. Manning, The Absurdity D octrine, 116 Harv. L. Rev. 2387, 2476 (2003)).

But in my judgment, we need not invoke the doctrine here to av oid an outcome that is, if not absurd, at least “peculiar,” as the Court mildly puts it. Supra at *7. It is hard to believe that our legislators intended an Illi nois murder conviction be treat ed the same as writing a bad check under our serious habitual offender statute. 1 Why they have not acted in response to contrary Court of Appeals opinions for two decades is curious, as well. Perha ps because our precedents never went this far and, in fact, suggest a different outcome. See S helton v. State, 490 N.E.2d 738, 744 (Ind. 1986); Slocumb v. State, 573 N.E.2d 427, 429 (Ind. 1991) (each discussing evidence of federal or out-of-state statut es upon which convictions were ba sed and their prescribed sentences). I thus respectfully dissent.

Long before California made “thre e strikes and you’re out” a f amiliar phrase in the national crime debate, 2 Indiana was using a habitual offender law to punish recidivist s. 3 These laws

1 See Ind. Code § 35-43-5-5 (providing check deception is a Leve l 6 felony if the amount is greater than $750). 2 See The “Three Strikes and You’re Out” Law—A Pre liminary Asses sment, Cal. Legis. Anal yst’s Office (Jan. 6, 1995), http://www.lao.ca.gov/r eports/1995/status_check_the_three_strik es_and_youre_out_law_a_preliminary_assessment. pdf (discussing 1994 Cal. Stat. Ch. 12, § 1, 71). 3 Ind. Code § 35-50-2-8 (Supp. 1978).2 occasionally have vexed our appellate courts 4 and have been moderated over time. 5 Amendments have unintentionally injected amb iguity into the statutes, and so it is with the portion we consider today.

Unlike three decades ago, we no longer punish habitual offende rs with a full thirty years on top of their sentence for th e instant crime. I.C. § 35-50-2 -8 (Supp. 1978). The statutes wisely and more humanely now treat different recidivists differently, based on the severity of the instant offense and their prior convictions. See I.C. § 35-50-2-8 (201 7). The law in question today attempts to do just that. Under its terms, if a defendant comm its a serious felony, and he has two priors, then at least one o f those priors must be a serious offense to sustain thi s particular habitual finding and the more severe sanc tion it carries. See id. -8(b)

.

This rather simple proposition hides in a fog of statutory def initions and classifications that the Court today finds unambiguous. A recognition of ambiguity would allow for a more commonsense construction of the statute.

If at least one of the predicates has to be serious, the rub h ere, then, is what constitutes a
minor felony offense? That is simple enough for Indiana priors: a Class D felony before the most recent rewrite of the criminal code, a Level 6 thereafter. But what about low-level felony convictions from other states? H ere the legislature used the t raditional line of demarcation between felonies and misdemeanors—impris onment for at least a year—to d efine low-level felonies from other states, which otherwise might use a different nomenclatur e of class or level, too varied to be included by specific reference. 6 This doesn’t mean they meant all out-of-state felonies are Level

4 See, e.g., Hensley v. State, 497 N.E.2d 1053 (Ind. 1986); Stat e v. Downey, 770 N.E.2d 794 (Ind. 2002); Mills v. State, 868 N.E.2d 446 (Ind. 2007) ; Peoples v. State, 929 N.E.2d 750 (Ind. 2010); Dye v. S tate, 972 N.E.2d 853 (Ind. 2012); Jones v. State, 569 N.E.2 d 975 (Ind. Ct. App. 1991); Joh nson v. State, 575 N.E.2d 282 (Ind. Ct. App. 1991), trans. denied; Cain v. State, 59 4 N.E.2d 835 (Ind. Ct. App.), c larified on reh’g, 599 N.E.2d 625 (Ind. Ct. App. 1992); Rowold v. State, 629 N.E.2d 1285 (Ind. Ct. App. 1994); Schnepp v. State, 768 N.E.2d 1002 (Ind. Ct. App. 2002), trans. denied; Olatunji v. State , 788 N.E.2d 1268 (Ind. Ct. App . 2003), trans. denied; Tow nsend v. State, 793 N.E.2d 1092 (Ind. Ct. App. 2003), tran s. denied; Goodman v. State, 863 N.E.2d 898 (Ind. Ct. App. 2007), trans. denied; Howard v. State, 873 N.E.2d 685 (Ind. Ct. App. 2007). 5 See Johnson v. State, 75 N.E.3d 549 (Ind. Ct. App. 2017), vaca ted on other grounds (tracing the evolution of Indiana’s habitual offender statute). 6 See generally Black’s Law Dictionary 736 (10th ed. 2014) (defining “felony” as “a serious crime usu[ ally] punishable by imprisonment for more than one year or by death”) ; I.C. § 35-50-2-1(b) (defining “felony conviction,” under the habitual offender statute, as a conviction for which a person may be imprisoned for more than one year);3 6s, regardless of severity. The y certainly could have been mor e precise in their drafting, but their imprecision does not dictate this windfall for serious habitual offenders who built their records victimizing people in other states.

Here, Calvin is an unrepentant burglar. An Indiana jury found him guilty of a residential burglary. That same jury then lea rned he had two prior convict ions for the same serious crimes in Illinois and rightly found him to be a habitual offender. But now we are to pretend those serious crimes weren’t so serious after all because of where they were committed. If that is not quite absurd, it is beyond peculiar.

Coincidentally, if not ironical ly, on this very day, I have wr itten for the Court interpreting a different section of the habitu al offender statute to a resul t nearly as odd. See Johnson v. State, 32S05-1707-CR-469, -- N.E.3d -- (Ind. Dec. 21, 2017). At least the possibly unintended consequence at work in Johnson w on’t be repeated thanks to rece nt statutory amendment. Perhaps the legislature might spare this Court from further peculiar ho ldings by fixing this section, as well. 7

Model Penal Code § 1.04(2) (“A c rime is a felony if . . . perso ns convicted thereof may be sentenced . . . in excess of one year.”); 18 U.S.C.A. § 3156(a)(3) (2015) (defining felony, for purposes of release and detention pending trial, as “an offense punishable by a maxim um term of imprisonment of mor e than one year”). 7 See generally Richard A. Galt, T he Use of Out-Of-State Convict ions for Enhancing S entences of Repeat Offenders, 5 Alb. L. Rev. 1133, 1154 (1994) (surveying the diff erent approaches states have taken regarding the use of out-of-state predi cate offenses, and concluding “[a] system that considers prior convictions when sentencing defendants must reflect how the p rior behavior compares to the norms of the host state. Ho wever, at the same time, it must not allow technical loopho les to overly constrain the p ower of the state to hold criminals accountable for their actions”); Wayne A. Logan, Horizontal Federalism in an Ag e of Criminal Justice In terconnectedness, 154 U. Pa. L. Rev. 257, 329-30 (2005) (considering states’ use “of cri minal convictions rendered by fellow sovereign state governments” and the “willingness to use one another’s criminal law dispositions . . . to e xpand the bounds of crime control”).