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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: MARK S. LENYO South Bend, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
MICHAEL CHESTER, Appellant/Defendant, vs. STATE OF INDIANA, Appellee/Plaintiff. ) ) ) ) ) ) ) ) )

Jun 02 2010, 9:38 am

CLERK

No. 71A03-1003-CR-117

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Jerome J. Frese, Judge Cause No. 71D03-0205-FB-52

June 2, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant/Defendant Michael Chester appeals from the sentence imposed following his guilty pleas to Class B felony Dealing in Cocaine1 and Class D felony Maintaining a Common Nuisance2 and his admission to being a Habitual Offender.3 Chester contends that the trial court erroneously attached the habitual offender sentence enhancement to his maintaining a common nuisance conviction. We reverse and remand for resentencing. FACTS AND PROCEDURAL HISTORY On November 8, 2002, Chester pled guilty to Class B felony dealing in cocaine and Class D felony maintaining a common nuisance and admitted to being a habitual offender. On December 12, 2002, the trial court sentenced Chester to fifteen years of incarceration for dealing in cocaine and three for maintaining a common nuisance, the latter enhanced by four years by virtue of the habitual offender finding, with both sentences to be served consecutively. On December 3, 2009, the trial court granted Chester leave to file a belated notice of appeal. DISCUSSION AND DECISION Chester argues that, under the circumstances of this case, the trial court could not have legally enhanced his sentence for maintaining a common nuisance by virtue of his habitual offender admission. Specifically, Chester contends that he and his conviction for

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Ind. Code

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