Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019 Page 1 of 8

ATTORNEY FOR APPELLANT

James D. Crum

Coots, Henke & Wheeler, P.C.

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Clark Allen Hill,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 25, 2019

Court of Appeals Case No.

18A-CR-2658

Appeal from the

Hamilton Superior Court

The Honorable

Gail Z. Bardach, Judge

Trial Court Cause No.

29D06-1802-CM-1086

Kirsch, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019 Page 2 of 8

[1] Clark Allen Hill (“Hill”) was convicted of Operating a Vehicle with an alcohol 

concentration equivalent (“ACE”) of .15 or more,1 a Class A misdemeanor, and

was adjudicated as an Habitual Vehicle Substance Offender2(“HVSO”). Hill 

raises one issue, which we restate as whether the enhancement of his conviction 

for operating while intoxicated (“OWI”) by his adjudication as a HVSO

violates the federal constitution’s prohibition against double jeopardy. 

[2] We affirm.

Facts and Procedural History

[3] On February 11, 2018, Hill was stopped for speeding by a Westfield, Indiana 

police officer. Tr. Vol. II at 13. Hill showed signs of intoxication, so the officer 

conducted field sobriety tests, which Hill failed. Id. Hill submitted to a 

portable breath test, which indicated that he had consumed alcohol. Id. at 13-

14. A certified chemical test later showed that Hill had an ACE of .153 grams 

of alcohol per 210 liters of his breath. Id. at 14. Hill was charged with

Operating a Vehicle with an ACE of .15 or more, a Class A misdemeanor, and 

OWI as a Class C misdemeanor.

3

 Appellant’s App. Vol. 2 at 11. 

[4] Years before, Hill had been convicted of similar charges in 1995, 2001, and 

2010. Tr. Vol. II at 14-15. Accordingly, the State charged Hill as an HVSO, 

 

1

See Ind. Code § 9-30-5-2(b).

2

See Ind. Code § 9-30-15.5-2.

3

See Ind. Code § 9-30-5-2(a).
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citing the following prior convictions: 1) a 1995 Marion County conviction for 

Operating a Vehicle with a BAC of .10 or more, a Class C misdemeanor (“the 

1995 Marion County conviction”); 2) a 2010 Boone County conviction for 

OWI, Endangering a Person, a Class A misdemeanor (“the 2010 Boone County 

conviction”); and 3) a 2001 Boone County conviction for OWI, a Class A 

misdemeanor (“the 2001 Boone County conviction”). Appellant’s App. Vol. 2 at 

8. 

[5] At a July 13, 2018 hearing, Hill pleaded guilty to the Class A misdemeanor 

charge and admitted to the HVSO charge. Tr. Vol. II at 15-17. In support of the 

HVSO charge, the State relied on the 1995 Marion County conviction and the 

2010 Boone County conviction; it did not rely on the 2001 Boone County 

conviction because that conviction did not appear on Hill’s driving record. Id. 

at 14-15. The trial court sentenced Hill according to the terms of the plea 

agreement: one year for the Class A misdemeanor OWI conviction, enhanced 

by one year for the HVSO adjudication. Id. at 18; Appellant’s App. Vol. 2 at 43-

48. 

[6] On September 7, 2018, Hill filed a motion to correct erroneous sentence, 

alleging that the convictions used to support the HVSO enhancement were 

previously used to support an earlier habitual substance offender enhancement, 

and were therefore ineligible to support the current enhancement. Appellant’s

App. Vol. 2 at 53-70. Specifically, Hill alleged that the 1995 Marion County 

conviction used in this case to support his HVSO status was used to support his 

habitual substance offender adjudication for the 2010 Boone County 
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conviction. Id. at 55, 59-60. On October 4, 2018, the trial court denied Hill’s 

motion to correct erroneous sentence. Id. at 7, 84. Hill now appeals.

Discussion and Decision4

[7] Hill contends the trial court abused its discretion in denying his motion to 

correct erroneous sentence, arguing that the use of the 1995 Marion County 

conviction to support his HVSO adjudication and sentence enhancement 

violated the double jeopardy prohibition because that conviction was earlier 

used to support his habitual substance offender adjudication for the 2010 Boone 

County conviction.

5

 

[8] In reviewing a trial court’s decision on a motion to correct erroneous sentence, 

we defer to the trial court’s factual findings and review the decision for an abuse 

of discretion. Koontz v. State, 975 N.E.2d 846, 848 (Ind. Ct. App. 2012). An 

abuse of discretion occurs when the trial court’s decision is against the logic and 

effect of the facts and circumstances before it. Id. As to post-conviction 

 

4 The State argues that because Hill raises a constitutional challenge to his HVSO enhancement, his appeal 

requires us to review matters beyond the face of the judgment. Thus, the State contends that Hill should have 

raised this issue in the trial court via a petition for post-conviction relief instead of a motion to correct 

erroneous sentence. See Robinson v. State, 805 N.E.2d 783, 785-86 (Ind. 2004). The State asks us to remand 

this case and direct the trial court to treat Hill’s constitutional challenge as a petition for post-conviction 

relief, hold hearings to develop the record, and issue findings of fact and conclusions of law. While the 

State’s argument is well-taken, we decline the State’s request because, as the State acknowledges, we have 

previously reviewed a motion to correct erroneous sentence as a petition for post-conviction relief. See Chism 

v. State, 807 N.E.2d 798, 801 (Ind. Ct. App. 2004). Further, because we need only review the relevant parts 

of Hill’s criminal record, which are not in dispute and are in the record before us, remand for fact-finding is 

not necessary. Thus, we review Hill’s claim on the merits.

5 Hill also claims the trial court erred in using the 2001 Boone conviction to support his HVSO adjudication, 

but the trial court, in fact, did not use that conviction because it did not appear on Hill’s driving record. Tr. 

Vol. II at 14-15 
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matters, an appeal from the denial of post-conviction relief is an appeal from a 

negative judgment. Chism v. State, 807 N.E.2d 798, 801 (Ind. Ct. App. 2004). 

Thus, an appellant must show that the evidence as a whole leads unerringly and 

unmistakably to a conclusion opposite to that reached by the lower court. Id.

However, in the post-conviction setting conclusions of law receive no deference 

on appeal. Id.

[9] Hill argues that using the same conviction to support two separate habitual 

adjudications is “using the same set of facts to twice punish a defendant.” 

Appellant’s Br. at 5. Hill acknowledges that the Indiana Supreme Court has 

squarely and explicitly rejected this argument in Mayo v. State, 681 N.E.2d 689 

(1987), which held that there was no double jeopardy violation where a theft 

conviction was used to support both Mayo’s earlier habitual offender status in 

Alabama and his habitual offender status in Indiana. Id. at 693-94. 

Nonetheless, Hill asks us to “reconsider” Mayo and “set aside the enhancement 

count.” Appellant’s Br. at 6. This is justified, Hill argues, because his one-year 

HVSO enhancement resulted in an aggregate sentence of two years, double the 

maximum one-year sentence for his underlying conviction for Class A 

misdemeanor OWI. Thus, Hill argues that his two-year aggregate sentence 

cannot be considered a mere “aggravated or stiffened sentence[ ].” Id. at 5-6. 

Hill’s reference to an “aggravated or stiffened sentence” comes from Witte v. 

United States, 515 U.S. 389 (1995), where the United States Supreme Court 

rejected a double jeopardy challenge to a recidivist statute, stating:
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[W]e have rejected double jeopardy challenges because the 

enhanced punishment imposed for the later offense “is not to be 

viewed as either a new jeopardy or additional penalty for the 

earlier crimes,” but instead as “a stiffened penalty for the latest 

crime, which is considered to be an aggravated offense because a 

repetitive one.” 

Id. at 400 (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). Hill does not 

explain how a one-year enhancement that results in a two-year aggregate 

sentence is more than a mere “aggravated or stiffened sentence.” See Witte, 515 

U.S. at 400.

[10] In addressing Hill’s double jeopardy claim, we preliminarily observe that 

because there is a paucity of case law addressing the HVSO statute, our analysis 

will draw on cases that interpret the habitual offender statute. See Ind. Code § 

35-50-2-8. Reviewing those cases compels us to deny Hill’s request that we 

vacate the HVSO enhancement. 

[11] More specifically, we decline to grant relief to Hill for three reasons. First, we 

deny his request that we “reconsider” the holding in Mayo v. State, a decision by 

the Indiana Supreme Court. See Appellant’s Br. at 6. As Indiana’s intermediate 

appellate court, we are bound by Indiana Supreme Court precedent and are not 

at liberty to “reconsider” that precedent. Minor v. State, 36 N.E.3d 1065, 1074 

(Ind. Ct. App. 2015).

[12] Second, Mayo and other decisions by our Supreme Court easily dispose of Hill’s 

argument. As Mayo observed, “the United States Supreme Court has 

consistently upheld recidivist or habitual offender statutes against double 
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jeopardy claims.” 681 N.E.2d at 694 (citing Witte, 515 U.S. at 400). Likewise, 

in Baker v. State, 425 N.E.2d 98 (Ind. 1981), our Supreme Court rejected a 

similar double jeopardy claim:

Because the habitual offender statute does not create new or 

separate offenses and the habitual offender proceeding does not 

deal with the underlying facts on the substantive charge, the use 

of prior convictions at more than one habitual offender 

proceeding does not constitute double jeopardy. . . . There are no 

constitutional or collateral estoppel barriers to prevent the state 

from exacting that punishment each time a different felony is 

committed as long as the prior convictions do still exist. 

Id. at 101; see also Williams v. State, 430 N.E.2d 759, 768 (Ind. 1982) and Dixon v. 

State, 437 N.E.2d 1318, 1321 (Ind. 1982). 

[13] Third, we reject Hill’s argument that an HVSO enhancement should not result 

in an aggregate sentence that exceeds the maximum sentence for the underlying 

OWI conviction. Hill cites no authority for this novel interpretation, and we 

have found none. Moreover, Hill’s interpretation would lead to absurd results. 

See B.S. v. State, 95 N.E.3d 177, 179 (Ind. Ct. App. 2018). Hill was convicted of 

a Class A misdemeanor. A trial court may sentence a person convicted of a 

Class A misdemeanor to no more than one year. Ind. Code § 35-50-3-2. Once 

a person is adjudicated as an HVSO, the trial court “shall sentence a person 

found to be a [HVSO] to an additional fixed term of at least one (1) year . . . to be 

added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.” 

Ind. Code § 9-30-15.5-2(d) (emphasis added). Thus, under Hill’s reasoning, the 

only way the trial court could have applied an HVSO enhancement to Hill’s 
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underlying conviction was to impose no sentence whatsoever on the underlying 

OWI conviction. Such an interpretation would eviscerate a trial court’s wellestablished discretion in sentencing matters. We do not believe the legislature 

could have foreseen or countenanced such an unusual result. See B.S., 95 

N.E.3d at 179. 

[14] In using the 1995 Marion County conviction to support Hill’s HVSO status, 

where that same conviction was also used as a predicate conviction to support 

Hill’s habitual offender status in an earlier case, the trial court did not subject 

Hill to double jeopardy, and the trial court did not abuse its discretion in 

denying Hill’s motion to correct erroneous sentence. See Koontz, 975 N.E.2d at 

848. Also, we find that Hill has not shown that the evidence and controlling 

precedent lead unerringly and unmistakenly to a different result than the one 

reached by the trial court. See Chism, 807 N.E.2d at 801. 

[15] Affirmed.

Vaidik, C.J., and Altice, J., concur.