Bailey, J.
John Jay Lacey (“Lacey”) appeals, pro se, his thirteen-year sentence enhancement based upon habitual offender status. He raises three issues, which we consolidate and restate as whether there was sufficient evidence to support his habitual offender enhancement.
On June 22, 2016, the State charged Lacey with aggravated battery, as a Level 3 felony, and subsequently filed a notice also seeking a habitual offender enhancement, based on an October 16, 2012, Florida conviction for battery on an officer, as a Level 3 felony, and a March 2, 2014, Florida conviction for aggravated battery, as a Level 3 felony. On November 18, 2016, Lacey and the State entered into a plea agreement under which Lacey pled guilty to aggravated battery and admitted his status as a habitual offender. The plea agreement left sentencing to the trial court’s discretion and agreed to a cap of fourteen years on the habitual offender enhancement.
On February 16, 2017, the trial court sentenced Lacey to fifteen years for aggravated battery, enhanced by thirteen years for being a habitual offender. Lacey filed a motion to correct erroneous sentence pursuant to Indiana Code Section 35-38-1-15 on August 15, 2018, and the trial court denied that motion on October 11. This appeal ensued.
As an initial matter, we note that the State does not challenge Lacey’s right to seek a correction of the judgment imposing the habitual offender enhancement under Indiana Code Section 35-38-1-15. … Lacey alleges that his sentence violated express statutory authority at the time the sentence was pronounced; therefore, his motion to correct sentence pursuant to Indiana Code Section 35-38-1-15 was appropriate.
Nor does the State challenge Lacey’s right to appeal his sentence, despite his plea agreement waiving that right. Because Lacey’s plea agreement did not fix his sentence, he may appeal the merits of the sentence. Creech v. State, 887 N.E.2d 73, 74 (Ind. 2008) … Thus, this appeal is properly before us.
Lacey contends that the habitual offender enhancement was issued in error because his two prior unrelated out-of-state felonies were both the equivalent of Level 6 felonies. To the extent this issue requires us to interpret the meaning of the habitual offender statutes, our review is de novo. Calvin v. State, 87 N.E.3d 474, 476 (Ind. 2017). …
….
At the time of Lacey’s sentencing—i.e., February 16, 2017—Indiana law provided that a person convicted of a Level 1 through Level 4 felony was a habitual offender if “at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.” I.C. § 35-50-2-8(b)(2) (2017). A “Level 6 felony conviction” was defined to include a conviction in any jurisdiction other than Indiana “with respect to which the convicted person might have been imprisoned for more than one (1) year.” I.C. § 35-50-2-1(a)(2) (2017). This court and our state Supreme Court have, since at least 1991, consistently interpreted the plain language of the latter statute as meaning “all non-Indiana felonies count as Level 6 felonies.” Calvin v. State, 87 N.E.3d at 479 (citing Rowold v. State, 629 N.E.2d 1285, 1287 (Ind. Ct. App. 1994); Cain v. State, 594 N.E.2d 835, 842-43 (Ind. Ct. App. 1992), clarified on reh’g, 599 N.E.2d 625 (Ind. Ct. App. 1992); Johnson v. State, 575 N.E.2d 282, 285 (Ind. Ct. App. 1991), trans. denied.) 7
[7 As the State notes, in 2018 the legislature amended the definition of a “Level 6 felony” for purposes of the habitual offender enhancement. Effective March 8, 2018, an out-of-state Level 6 felony means “a conviction, in any other jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year but less than two and one-half (2 ½ ) years.” I.C. § 35-50-2-1(a)(2) (2018); P.L. 202018, SEC. 1, eff. March 8, 2018. However, that amendment is irrelevant to the present case where the crime underlying the habitual offender enhancement was committed in June of 2016, i.e., almost two years before the amendment’s effective date. See, e.g., Harris, 897 N.E.2d at 928-29.]
Both of Lacey’s prior, unrelated felony convictions in Florida were classified as felonies “of the third degree,” … , for which Lacey could have received a term of imprisonment “not exceeding 5 years … Because Lacey “might have been imprisoned for more than one (1) year” for each of the Florida convictions, both of those convictions were treated as Level 6 felony convictions under Indiana law in 2017. I.C. § 35-50-2-1(a)(2) (2017). Therefore, those Florida convictions could not support a habitual offender enhancement. I.C. § 35-50-2-8(b)(2) (2017). There was insufficient evidence to support the thirteen-year habitual offender enhancement.
We reverse the judgment of the trial court on the habitual offender finding and remand to the trial court for resentencing consistent with this opinion.
Reversed and remanded with instructions.
Riley, J., and Pyle, J., concur.