Kirsch, J.
Arnold Tuell (“Tuell”) was charged with operating a motor vehicle after forfeiture of license for life, a Level 5 felony, and with being a habitual offender. Tuell raises the following issue in this discretionary interlocutory appeal, whether the trial court erred in denying his motion to dismiss the habitual offender charge, which he claims is impermissible because operating a motor vehicle after forfeiture of license for life is a progressive penalty statute that cannot be further enhanced by the general habitual offender statute.
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Tuell was arrested and charged with Count 1, Level 5 felony operating a motor vehicle after forfeiture of license for life and Count 2, with being a habitual offender. The habitual offender charging information listed the following prior convictions: 1) January 22, 2008 Daviess County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 2) October 12, 2004 Dubois County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 3) January 7, 2013 Orange County conviction for operating a motor vehicle after forfeiture of license for life, a Class C felony; 4) March 30, 2004 Orange County conviction for operating a vehicle as habitual traffic violator, a Class D felony; and 5) November 4, 1997 Orange County conviction for child molesting, a Class B felony.
Tuell filed a motion to dismiss the habitual offender charge. At the hearing on the motion, defense counsel argued that the habitual offender enhancement should be dismissed because Tuell was charged with operating a motor vehicle after forfeiture of license for life under a progressive penalty scheme, and a penalty under such a statute could not be further enhanced under the habitual offender statute. In denying the motion, the trial court concluded that the habitual offender charge would not create an impermissible double enhancement. …
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Tuell argues that allowing the State to proceed with the habitual offender charge subjects him to an impermissible double enhancement because he would be simultaneously subjected to two enhancing statutes, the progressive penalty statute of his operating a motor vehicle after forfeiture of license for life charge and the enhancement from the habitual offender charge. Tuell contends that there is no statutory authority for such a double enhancement, citing to Stanek v. State, 603 N.E.2d 152 (Ind. 1992).
We look to our Supreme Court’s case in Dye v. State, 972 N.E.2d 853, 856-57 (Ind. 2012) for guidance on this issue:
It has long been established that double enhancements are not permissible unless there is explicit legislative direction authorizing them. …
There are three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive-penalty statutes. [State v.] Downey, 770 N.E.2d [794,] 795-96 [(Ind. 2012)]. …
Here, the underlying felony Tuell was charged with — Level 5 felony operating a motor vehicle after forfeiture of license for life — is a progressive penalty statute. Dye, 972 N.E.2d at 857. “The general rule is that, absent explicit legislative direction, a sentence imposed following conviction under a progressive penalty statute may not be increased further under either the general habitual offender statute or a specialized habitual offender statute.” Id. (emphasis in original).
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As to the habitual offender statute itself, the General Assembly has amended it several times since 1992, when Stanek was decided. Subsection (e) of the current habitual offender statute states the following:
The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if the current offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction. However, a prior unrelated felony conviction may be used to support a habitual offender determination even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense.
Ind. Code § 35-50-2-8(e) (emphasis added). The emphasized language in subsection (e) provides explicit legislative direction about when the State may not seek a double enhancement. That language, however, does not bar double enhancement here because Tuell’s current offense is not a misdemeanor that was enhanced to a felony in the same proceeding as the habitual offender proceeding solely because of a prior unrelated conviction. Thus, by the plain language of the statute, the circumstances here do not pose the risk of an impermissible double enhancement. Recalling that it is as important to observe what a statute does not say as what it does say, we find that this language provides explicit authorization for the potential double enhancement with which Tuell has been charged. See Brown, 70 N.E.3d at 334.
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… Over time, the legislature has enacted various iterations of the habitual offender statute, calibrating it one way or another, so we see the narrow exclusion in the current version of the statute as not being arbitrary or arising by happenstance but, instead, a product of the legislature’s considered deliberation about what exclusions best fit the needs of our State at this time. Accordingly, the trial court did not abuse its discretion in denying Tuell’s motion to dismiss Count 2, the habitual offender charge.
Affirmed.
Vaidik, C.J., and Riley, J., concur.