SULLIVAN, J.
Breaston v. State, – N.E.2d -, No. 20S04-0810-CR-561, slip op. (Ind. June 16, 2009), holds that consecutive habitual offender enhancements are improper where the enhancements arise from separate trials on unrelated charges. This case presents a somewhat easier question than Breaston: whether consecutive habitual offender enhancements are improper where the enhancements arise from separate trials on related charges. Precedent dictates that they are. . . . .
. . . .
In Seay v. State, the State pursued successive prosecutions for related offenses that could have been consolidated for trial. 550 N.E.2d 1284, 1289 (Ind. 1990). Specifically, the State filed and prosecuted four charges for sales of controlled substances in two successive actions. Id. at 1286-87. Based on the reasoning in Starks (the case we rely on in Breaston), Seay held that “the State is barred from seeking multiple, pyramiding habitual offender sentence enhancements by bringing successive prosecutions for charges which could have been consolidated for trial.” Id. at 1289.
Here, the post-conviction court ruled that Seay is only applicable where the State purposely delayed filing charges for the improper purpose of seeking multiple enhancements, but Seay contains no such limitation. Although the Court of Appeals did not rely on the post-conviction court’s reasoning, it too, misapplied Seay. It deemed Seay distinguishable from the present case and held that Farris had not shown that trial counsel was ineffective. Farris, slip op. at 11. We find no analysis or case law to support this distinction.
In this case, it is not disputed that the robbery charge and the murder and battery charges were based on a “series of acts connected together.” See Ind. Code § 35-34-1-9(a)(2). After Farris had already been convicted on the robbery charge, found to be a habitual offender, and had his sentence enhanced by 30 years based on the habitual offender status, trial counsel appeared on the murder charges. The trial court ordered consecutive habitual offender enhancements for charges that could have been consolidated for trial when it ordered the habitual offender enhancement in the murder and aggravated battery conviction to be served consecutively to the enhancement in the robbery conviction.
Seay was decided in 1990. By the time Farris committed these offenses in 1997 and 1998, and at the time of Farris’s appeal, the question of whether a trial court could impose consecutive habitual offender sentences for charges that could have been consolidated for trial had been answered. Pursuant to the holding in Seay, it was “incumbent upon Farris’ counsel to move to dismiss the habitual offender allegation filed with the murder and battery charges.” Farris, slip. op. at 13 (Darden, J., dissenting). Counsel was guilty of deficient performance for not doing so, or at least opposing in some way the imposition of the second habitual offender enhancement consecutive to the first.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.