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ATTORNEY FOR APPELLANT Joseph M. Cleary Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 20S04-0810-CR-561 BYRON BREASTON,

In the

FILED
Jun 16 2009, 12:58 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Elkhart Superior Court, No. 20D01-0607-FD-66 The Honorable Evan Roberts, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0712-CR-727 _________________________________ June 16, 2009 Sullivan, Justice.

Following unrelated criminal trials, Byron Breaston received habitual offender enhancements to his sentences. He was ordered to serve these habitual offender enhancements consecutively. Starks v. State held that it was improper for the trial court to order consecutive habitual offender enhancements at a single criminal trial. 523 N.E.2d 735, 737 (Ind. 1988). Smith v. State applied this holding to separate sentencing proceedings. 774 N.E.2d 1021, 1024 (Ind. Ct.

App. 2002), trans. denied. As such, it was incorrect to impose consecutive habitual offender enhancements in the present case. Background

In December, 2003, Byron Breaston was convicted of Class D felony theft and sentenced to two years. Breaston was placed on work release, but on February 1, 2004, he did not return to detention. Breaston was apprehended and charged with, and ultimately convicted of, Class D felony escape and being a habitual offender. On November 17, 2004, he was sentenced to three years for the felony escape conviction, enhanced by four and one-half years for being a habitual offender.1

The instant case arises from a different set of charges. On February 18, 2004, the State charged Breaston with theft, a Class D felony, and being a habitual offender. A jury found Breaston guilty of both counts. On November 29, 2004, he was sentenced to three years for the theft conviction, enhanced by four and one-half years due to the habitual offender finding. These sentences, including the new habitual offender enhancement, were ordered to be served consecutively to the prior habitual offender enhancement. Breaston appealed.

Breaston argued that Smith dictates that the imposition of consecutive habitual offender enhancements is improper, even where the enhancements arise from separate and unrelated trials or sentencing hearings. Breaston v. State, 893 N.E.2d 6, 15 (Ind. Ct. App. 2008) (citing Smith, 774 N.E.2d at 1024). The Court of Appeals rejected Breaston's contention. It held that Ind. Code

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