Court of Appeals of Indiana | Opinion 84A01-1411-CR-506 | May 20, 2015 Page 1 of 7

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Whittaker,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 20, 2015

Court of Appeals Case No.

84A01-1411-CR-506

Appeal from the Vigo Superior 

Court.

The Honorable David R. Bolk, 

Judge.

Cause No. 84D03-1309-FD-2931

Darden, Senior Judge

Statement of the Case

[1] Michael Whittaker appeals his sentence for his conviction of theft, a Class D 

felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an 

habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.
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Issue

[2] Whittaker presents one issue for our review, which we restate as: whether the 

savings clause of the 2014 criminal code revision violates the Equal Privileges 

and Immunities Clause of the Indiana Constitution.

Facts and Procedural History

[3] In September 2013, the State charged Whittaker with theft and alleged that he 

was an habitual offender. Whittaker pleaded guilty to the theft charge and 

admitted being an habitual offender in September 2014. The following month 

the trial court sentenced Whittaker to 180 days on the theft conviction, 

enhanced by eighteen months for his admission to being an habitual offender, 

for an aggregate sentence of two years. It is from this sentence that Whittaker 

now appeals.

Discussion and Decision

[4] Whittaker contends that the savings clause of the 2014 criminal code revision 

violates his rights under the Equal Privileges and Immunities Clause of the 

Indiana Constitution.1 Specifically, he argues that the savings clause 

 

1 The State asserts that Whittaker failed to raise this issue before the trial court, and therefore it is waived. 

However, our Supreme Court has said that “[e]ven though the general rule is that failure to challenge the 

constitutionality of a statute at trial results in waiver of review on appeal, this Court as well as the Court of 

Appeals has long exercised its discretion to address the merits of a party’s constitutional claim 

notwithstanding waiver.” Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We exercise our 

discretion to do so now.
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improperly prohibits the ameliorative sentencing statutes of the new criminal 

code to apply to certain offenders, including himself.

[5] Generally, the sentencing statutes in effect at the time a defendant commits an 

offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340 

(Ind. Ct. App. 2014), trans denied. An exception to this general rule is the 

doctrine of amelioration. The doctrine of amelioration entitles a defendant,

who is sentenced after the effective date of a statute providing for more lenient 

sentencing, to be sentenced pursuant to that statute rather than the sentencing 

statute in effect at the time of the commission or conviction of the crime. Id.

However, the doctrine of amelioration does not apply where the legislature 

expressly states in a specific savings clause an intention that crimes committed 

before the effective date of the ameliorative amendment should be prosecuted 

under prior law. Id.

[6] At the time Whittaker committed these offenses and was charged, the general 

crime of theft was a Class D felony, with a sentencing range of six months to 

three years. See Ind. Code §§ 35-43-4-2(a) (2009), 35-50-2-7(a) (2013). On July 

1, 2014, while Whittaker’s charges were pending, a significant revision of our 

criminal code went into effect resulting in, among other things, a change in 

terminology from “Class D felony” to “Level 6 felony” and a reduction of the 

sentencing range for a Class D/Level 6 felony to a term of six months to two 

and one-half years. See Ind. Code § 35-50-2-7(b) (2014). In addition, the 

general crime of theft was reduced to a Class A misdemeanor with a maximum 

sentence of one year. See Ind. Code §§ 35-43-4-2(a) (2014), 35-50-3-2 (1977). 
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At the same time, the General Assembly enacted the following specific savings 

clause:

(a) [The new criminal code] does not affect:

(1) penalties incurred;

(2) crimes committed; or 

(3) proceedings begun;

before the effective date of [the new criminal code sections]. 

Those penalties, crimes, and proceedings continue and shall be 

imposed and enforced under prior law as if [the new criminal 

code] had not been enacted.

(b) The general assembly does not intend the doctrine of 

amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to 

apply to any SECTION [of the new criminal code].

Ind. Code § 1-1-5.5-21 (2014). Recently, a panel of this Court remarked, “[i]t is 

abundantly clear from these statutes that the General Assembly intended the 

new criminal code to have no effect on criminal proceedings for offenses 

committed prior to the enactment of the new code.” Marley, 17 N.E.3d at 340. 

[7] Whittaker challenges the constitutionality of this savings clause under the Equal 

Privileges and Immunities Clause of the Indiana Constitution. When the 

constitutionality of a statute is challenged, we begin with the presumption that 

the statute is constitutional. Bennett v. State, 801 N.E.2d 170, 173 (Ind. Ct. App. 

2003). The party challenging the statute labors under a heavy burden to show 

that it is unconstitutional. Id. at 173-74. All reasonable doubts must be 

resolved in favor of the statute’s constitutionality. Id. at 174.
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[8] The Equal Privileges and Immunities Clause states that “[t]he General 

Assembly shall not grant to any citizen, or class of citizens, privileges or 

immunities, which, upon the same terms, shall not equally belong to all 

citizens.” IND. CONST. art. I, §23. In Collins v. Day, our Supreme Court 

concluded that Section 23 imposes two requirements on statutes that result in 

disparate treatment to differing classes of people: “First, the disparate treatment 

accorded by the legislation must be reasonably related to inherent 

characteristics which distinguish the unequally treated classes. Second, the 

preferential treatment must be uniformly applicable and equally available to all 

persons similarly situated.” 644 N.E.2d 72, 80 (Ind. 1994). In determining 

whether a statute violates Section 23, we accord substantial deference to 

legislative discretion. Id.

[9] Whittaker argues that the savings clause unconstitutionally created two classes 

of offenders: those who committed their offenses before the new criminal code 

went into effect on July 1, 2014 but were sentenced after that date and those 

who committed their offenses after the July 1, 2014 effective date. He 

maintains that the date of the offense is not reasonably related to any inherent 

characteristic that distinguishes the two classes.

[10] Five years after establishing the two-step analysis in Collins, our Supreme Court 

again dealt with Section 23 in Rondon v. State, 711 N.E.2d 506 (Ind. 1999). 

There, Rondon’s argument failed under the first prong of the Collins analysis. 

However, the court determined that even if Rondon had prevailed under the 

first prong, his argument would fail under the second prong because 
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“[a]mendments to a law that are coupled with a savings clause do not create 

two similarly situated groups of people.” Rondon, 711 N.E.2d at 513. 

“‘Criminal statutes apply exclusively to one class of people, those who violate 

the law, and they relate to the specific point in time that a violation occurs.’” 

Id. (quoting Rivera v. State, 179 Ind. App. 295, 385 N.E.2d 455, 457 (1979)). 

Therefore, upon alteration of the criminal law, individuals who subsequently

commit an offense are not similarly situated and cannot be equated to those 

who had previously committed an offense. Rondon, 711 N.E.2d at 513. “[T]he 

time of a crime is selected as an act of free will by the offender,” and, thus, it is 

the criminal, not the State, that chooses which statute applies to his or her 

offense. Id. The court further noted it had previously determined that a change 

in penal statutes which applies only to those who commit their crimes after its 

effective date does not violate one’s equal protection rights. Id. n.7 (citing State 

v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994); Vicory v. State, 272 Ind. 683, 400 

N.E.2d 1380, 1381-83 (1980)).

[11] Similarly, we need not discuss whether Indiana Code section 1-1-5.5-21 passes 

the first prong of the Collins analysis because it clearly fails on the second prong. 

Whittaker, in an act of free will, selected his offense date as August 31, 2013, 

thereby choosing to commit theft as a Class D felony subject to a sentence of six 

months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing 

so, he differentiated himself from those offenders who committed the offense of 

theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to 
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those defendants who committed offenses after July 1, 2014, and, therefore, he 

has no viable equal privileges and immunities claim.

Conclusion

[12] For the reasons stated, we conclude that the savings clause of the 2014 criminal 

code revision does not violate the Equal Privileges and Immunities Clause of 

the Indiana Constitution.

[13] Affirmed.

[14] Vaidik, C.J., and May, J., concur.