The Indiana Supreme Court has remanded an appeal of a Dearborn County habitual offender enhancement considering two opinions addressing habitual offender findings, a move that comes as the Indiana General Assembly seems poised to pass a bill that would more narrowly define how out-of-state felonies should be treated when considering sentencing enhancements.

In November 2017, the Indiana Court of Appeals upheld Brandon Mockbee’s convictions of felony burglary and obstruction of justice, as well as the finding that he was a habitual offender based on prior felony convictions in Ohio. The appellate panel found sufficient evidence to support that finding in Mockbee’s 2002 conviction of second degree felony robbery — a Class B felony in Indiana — and his 2012 conviction of third degree felony tampering with evidence, for which he served three years.

At the time of Mockbee’s 2016 Dearborn County offenses, Indiana law required the state to prove an offender had two prior unrelated felonies, one of which was not a Class D or Level 6, to prove a habitual offender allegation. Further, if one of the prior unrelated felonies was a Level 5 or 6 or Class C or D, not more than 10 years could have elapsed between the time the offender was released from imprisonment, probation or parole and the current offense.

After the Court of Appeals found those criteria were met in Mockbee’s case, Mockbee petitioned the Indiana Supreme Court for transfer in December 2017, then filed an amended petition in January after the court ruled in Matthew L. Johnson v. State of Indiana, 87 N.E.3d 471 (Ind. 2017) and Darryl Calvin v. State of Indiana, 87 N.E.3d 474 (Ind. 2017). The Johnson court held that the 2015 version of the habitual offender statute required an offender to have been released from all lower-level felonies within 10 years to establish a habitual offender enhancement, while a divided court ruled in Calvin that all out-of-state felonies are statutorily considered Level 6 felonies for habitual offender purposes.

The parties cited to the Johnson and Calvin decisions in their amended transfer briefs, so the appellate court vacated the original Court of Appeals opinion in Brandon Mockbee v. State of Indiana, 18S-CR-111, and remanded the case for appellate reconsideration considering the December 2017 opinions. All justices concurred with the remand of Mockbee’s case, but Justice Mark Massa dissented from the majority’s key holding in Calvin, writing the holding would lead to absurd results.

“Here, the legislature used the traditional line of demarcation between felonies and misdemeanors – imprisonment for at least a year – to define low-level felonies from other states, which otherwise might use a different nomenclature of class or level, too varied to be included by specific reference,” Massa wrote in his dissent. “This doesn’t mean they meant all out-of-state felonies are Level 6s, regardless of severity.”

Similarly, Rep. Thomas Washburne, R-Evansville, filed House Bill 1033 this year in response to the Calvin decision, saying the legislature did not “want to have a case where murder in Ohio is treated as a Level 6 in Indiana when it comes over.” HB 1033 would more narrowly define an out-of-state Level 6 felony as any offense that carries a sentence of more than one year, but less than 2 1/2 years.

HB 1033 unanimously passed the House and Senate and was returned to the House without amendment on Wednesday.