Riley, J.
….
Daugherty raises two issues on appeal [from denial of PCR], which we restate as follows:
(1) Whether Daugherty was denied the effective assistance of appellate counsel where his counsel failed to argue that his two consecutive sentences for unlawful possession of a firearm by a serious violent felon (SVF) convictions constituted an impermissible double enhancement; and
(2) Whether Daugherty was denied the effective assistance of appellate counsel where his counsel failed to argue that his aggregate sentence of 33 years exceeded the statutory limitation for consecutive sentences arising out of a single episode of criminal conduct.
….
Daugherty argues his appellate counsel was ineffective because he failed to raise a claim that the imposition of two consecutive sentences for possession of a firearm by an SVF, based on a single prior felony conviction, constituted an impermissible double enhancement. Generally, double enhancements are not permissible. Dye v. State, 972 N.E.2d 853, 856 (Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). But double enhancements are permissible when there is explicit legislative direction authorizing them. Id. at 857. …
….
In the present case, in essence, Daugherty urges us to extend the Dye court’s decision to cases involving consecutive sentences for two progressive-penalty statutes … because his two SVF convictions were “already enhanced” and each was supported by the same underlying felony, ordering the sentences to run consecutively violated the double enhancement prohibition. [Record citation omitted.] We disagree. …
Because Daugherty’s single underlying felony conviction served as an element in each SVF count, not as an enhancement, and because each SVF count was a separate and distinct offense, we conclude that the imposition of two sentences for two counts of unlawful possession of a firearm by an SVF to run consecutively was not an improper double enhancement under Indiana law and the circumstances of this case. … As such, we cannot conclude that Daugherty’s appellate counsel was ineffective for failing to raise the double enhancement claim.
….
As to the second instance of ineffective assistance of counsel claim, Daugherty contends that his sentence for the intimidation conviction ordered to run consecutively to the other sentences exceeded the maximum allowed punishment [for a “single episode of criminal conduct”] pursuant to Indiana Code section 35-50-1-2 (2006)….
Both parties seem to agree that Daugherty’s SVF convictions were not covered by the definition of a “crime of violence” at the time.3 See I.C. § 35-50-1-2. However, both parties disagree as to the definition of a “single episode of criminal conduct,” which is dispositive here. See I.C. § 35-50-1-2. A single episode of criminal conduct is defined as “an offense or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50- 1-2(b).
[Footnote 3: The statute contains an exhaustive list of violent crimes. The crime of unlawful possession of a firearm by an SVF was added to the list in 2015.]
Here, Daugherty was stopped for driving while intoxicated. When the police officers discovered a handgun between his legs, Daugherty was tased and taken into custody. Police also recovered an SKS assault rifle on the vehicle’s floorboard. Both weapons were loaded and within Daugherty’s immediate reach. Daugherty was taken to a hospital where he was hostile to the officers. He spat at the officers, threatened to kill them and their families, and threatened to rape their wives. The officers later testified that Daugherty’s threats put them in fear for both their personal safety and their families’ safety.
Daugherty claims that these events constituted a single episode and cites to Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000), trans. denied. * * * [T]he State … argues that the events of the instant case were similar to the events in … Newman v. State, 690 N.E.2d 735 (Ind. Ct. App. 1998). …
In reaching its decision and to “illuminate our legislature’s definition” of the term “episode,” the Newman court examined our sister states’ approaches. Id. The Purdy court, on the other hand, examined the statute’s underlying policy and goals. Purdy, 727 N.E.2d at 1093. We prefer the Purdy court’s approach.
….
Indiana Code section 35-50-1-2 imposes a previously nonexistent limitation upon a trial court’s discretion to impose consecutive sentences, and is therefore ameliorative in nature. Id. at 1094. … [W]e fail to see how … this ameliorative statute, which clearly reads that a single episode includes “a connected series of offenses that are closely related in time, place, and circumstance,” could result in an increase of the penalty by abstract separation of the connected events in the parking lot and the hospital. See I.C. § 35-50-1-2 (2006). …
Further, even though there was a change of location between the tasing and discovery of two firearms episode and the intimidation episode, we fail to see how the change of location separated the two events to the extent that each could have been described independently without referring to the specific details of the other episode. To prove the intimidation episode, the State was required to show that the police officers were placed “in fear of retaliation for a prior lawful act.” The only way to accomplish this was to refer to Daugherty’s arrest, tasing, and discovery of two loaded firearms within his immediate reach. All of Daugherty’s actions took place during a relatively short period of time and all were related to his intoxication and possession of the firearms.
As such, because Daugherty’s offenses were committed in a single episode, his aggregate sentence cannot “exceed the advisory sentence for a felony which is one (1) class of felony higher tha[n] the most serious of the felonies for which [Daugherty] has been convicted.” I.C. § 35-50-1-2(c) (2006). Daugherty’s most serious conviction was a Class B felony conviction for unlawful possession of a firearm by an SVF, limiting his aggregate sentence to 30 years, the advisory sentence for a Class A felony. I.C. § 35-50-1-2(c); -2-4 (2006).
… We reverse the post-conviction court’s denial of Daugherty’s request for relief as to the intimidation conviction and remand with instructions to resentence Daugherty so that his sentence for the intimidation conviction runs concurrently to the other sentences and his aggregate term is limited to 30 years.
….
Affirmed, in part, reversed, in part, and remanded for resentencing consistent with this decision.
Najam, J. and May, J. concur
….
Daugherty raises two issues on appeal [from denial of PCR], which we restate as follows:
(1) Whether Daugherty was denied the effective assistance of appellate counsel where his counsel failed to argue that his two consecutive sentences for unlawful possession of a firearm by a serious violent felon (SVF) convictions constituted an impermissible double enhancement; and
(2) Whether Daugherty was denied the effective assistance of appellate counsel where his counsel failed to argue that his aggregate sentence of 33 years exceeded the statutory limitation for consecutive sentences arising out of a single episode of criminal conduct.
….
Daugherty argues his appellate counsel was ineffective because he failed to raise a claim that the imposition of two consecutive sentences for possession of a firearm by an SVF, based on a single prior felony conviction, constituted an impermissible double enhancement. Generally, double enhancements are not permissible. Dye v. State, 972 N.E.2d 853, 856 (Ind. 2012), aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). But double enhancements are permissible when there is explicit legislative direction authorizing them. Id. at 857. …
….
In the present case, in essence, Daugherty urges us to extend the Dye court’s decision to cases involving consecutive sentences for two progressive-penalty statutes … because his two SVF convictions were “already enhanced” and each was supported by the same underlying felony, ordering the sentences to run consecutively violated the double enhancement prohibition. [Record citation omitted.] We disagree. …
Because Daugherty’s single underlying felony conviction served as an element in each SVF count, not as an enhancement, and because each SVF count was a separate and distinct offense, we conclude that the imposition of two sentences for two counts of unlawful possession of a firearm by an SVF to run consecutively was not an improper double enhancement under Indiana law and the circumstances of this case. … As such, we cannot conclude that Daugherty’s appellate counsel was ineffective for failing to raise the double enhancement claim.
….
As to the second instance of ineffective assistance of counsel claim, Daugherty contends that his sentence for the intimidation conviction ordered to run consecutively to the other sentences exceeded the maximum allowed punishment [for a “single episode of criminal conduct”] pursuant to Indiana Code section 35-50-1-2 (2006)….
Both parties seem to agree that Daugherty’s SVF convictions were not covered by the definition of a “crime of violence” at the time.3 See I.C. § 35-50-1-2. However, both parties disagree as to the definition of a “single episode of criminal conduct,” which is dispositive here. See I.C. § 35-50-1-2. A single episode of criminal conduct is defined as “an offense or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50- 1-2(b).
[Footnote 3: The statute contains an exhaustive list of violent crimes. The crime of unlawful possession of a firearm by an SVF was added to the list in 2015.]
Here, Daugherty was stopped for driving while intoxicated. When the police officers discovered a handgun between his legs, Daugherty was tased and taken into custody. Police also recovered an SKS assault rifle on the vehicle’s floorboard. Both weapons were loaded and within Daugherty’s immediate reach. Daugherty was taken to a hospital where he was hostile to the officers. He spat at the officers, threatened to kill them and their families, and threatened to rape their wives. The officers later testified that Daugherty’s threats put them in fear for both their personal safety and their families’ safety.
Daugherty claims that these events constituted a single episode and cites to Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000), trans. denied. * * * [T]he State … argues that the events of the instant case were similar to the events in … Newman v. State, 690 N.E.2d 735 (Ind. Ct. App. 1998). …
In reaching its decision and to “illuminate our legislature’s definition” of the term “episode,” the Newman court examined our sister states’ approaches. Id. The Purdy court, on the other hand, examined the statute’s underlying policy and goals. Purdy, 727 N.E.2d at 1093. We prefer the Purdy court’s approach.
….
Indiana Code section 35-50-1-2 imposes a previously nonexistent limitation upon a trial court’s discretion to impose consecutive sentences, and is therefore ameliorative in nature. Id. at 1094. … [W]e fail to see how … this ameliorative statute, which clearly reads that a single episode includes “a connected series of offenses that are closely related in time, place, and circumstance,” could result in an increase of the penalty by abstract separation of the connected events in the parking lot and the hospital. See I.C. § 35-50-1-2 (2006). …
Further, even though there was a change of location between the tasing and discovery of two firearms episode and the intimidation episode, we fail to see how the change of location separated the two events to the extent that each could have been described independently without referring to the specific details of the other episode. To prove the intimidation episode, the State was required to show that the police officers were placed “in fear of retaliation for a prior lawful act.” The only way to accomplish this was to refer to Daugherty’s arrest, tasing, and discovery of two loaded firearms within his immediate reach. All of Daugherty’s actions took place during a relatively short period of time and all were related to his intoxication and possession of the firearms.
As such, because Daugherty’s offenses were committed in a single episode, his aggregate sentence cannot “exceed the advisory sentence for a felony which is one (1) class of felony higher tha[n] the most serious of the felonies for which [Daugherty] has been convicted.” I.C. § 35-50-1-2(c) (2006). Daugherty’s most serious conviction was a Class B felony conviction for unlawful possession of a firearm by an SVF, limiting his aggregate sentence to 30 years, the advisory sentence for a Class A felony. I.C. § 35-50-1-2(c); -2-4 (2006).
… We reverse the post-conviction court’s denial of Daugherty’s request for relief as to the intimidation conviction and remand with instructions to resentence Daugherty so that his sentence for the intimidation conviction runs concurrently to the other sentences and his aggregate term is limited to 30 years.
….
Affirmed, in part, reversed, in part, and remanded for resentencing consistent with this decision.
Najam, J. and May, J. concur