Bradford, J.
… In 2015, Young was convicted of Class A felony rape, Class A felony criminal deviate conduct, and Class D felony intimidation. Young was also found to be a repeat sexual offender and a habitual criminal offender. The trial court merged the convictions for rape and criminal deviate conduct and sentenced Young to an aggregate ninety-year term. On appeal, Young argues that the trial court erred by enhancing his rape conviction twice. The State concedes the trial court erred in this regard but argues that the trial court should have reduced the criminal deviate conduct charge to a lesser-included offense and applied one of the enhancements to that conviction. …
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The trial court ordered that Young’s convictions be merged based on Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008). “‘Under the rules of statutory construction and common law that constitute one aspect of Indiana’s double jeopardy jurisprudence, where one conviction is elevated to a class A felony based on the same bodily injury that forms the basis of another conviction, the two cannot stand.’” Id. (quoting Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007)). …
The State argues that the proper remedy to this double jeopardy problem was not to merge the convictions but to reduce one of the offending convictions to a lesser-included offense. … Specifically, the State contends that the trial court should have reduced Young’s conviction for Class A felony criminal deviate conduct to Class B felony criminal deviate conduct, which requires only the use or threatened use of force rather than the threatened use of deadly force as an element. … We agree and remand with instructions that the trial court enter judgment of conviction for Class B felony criminal deviate conduct. …
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Upon remedying a double jeopardy issue, “the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate.” Richardson, 717 N.E.2d at 54. On remand for resentencing, we instruct the trial court to run any sentence imposed on the criminal deviate conduct conviction concurrent to Young’s fifty-year sentence for rape.
Additionally, the State argues that the trial court should have enhanced the rape conviction under the habitual offender statute and enhanced the criminal deviate conduct conviction under the repeat sexual offender statute. … In Breaston v. State, the Indiana Supreme Court held that “a trial court cannot order consecutive habitual offender sentences” even where the second enhanced sentence is imposed in an entirely separate proceeding. 907 N.E.2d 992, 994 (Ind. 2009) (citing Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988)). …
… Just as there is no express statutory authorization for stacking general habitual offender enhancements, there is likewise no authorization for stacking general and specialized habitual offender enhancements. Accordingly, on remand, the trial court should apply the habitual offender enhancement to Young’s rape conviction and apply the repeat sexual offender enhancement to the criminal deviate conduct conviction, to be run concurrently.
The trial court erred by merging Young’s convictions for rape and criminal deviate conduct and by applying two enhancements to a single conviction. On remand, we order the trial court to enter judgment of conviction for Class B criminal deviate conduct. With regards to sentencing, Young’s fifty-year sentence for rape, and thirty-year habitual offender enhancement, remain unchanged. Young’s repeat sexual offender enhancement will be attached to his criminal deviate conduct conviction with both sentences running concurrent to the rape conviction for an aggregate sentence of eighty years.
The judgment of the trial court is reversed and remanded with instructions.
Bailey, J., and Altice, J., concur.