May, J.
Scott Afanador appeals following his conviction of Level 5 felony automobile theft and the finding that he is a habitual offender. Afanador argues the elevation of his automobile theft conviction from a Level 6 to a Level 5 felony based on his prior conviction of automobile theft, and the further enhancement of his sentence for that elevated conviction due to his habitual offender status, resulted in an improper double enhancement. To reach this conclusion, Afanador cites the definition of “unrelated felony” in the habitual offender statute, Indiana Code § 35-50-2-8(f), which provides that felonies are “unrelated” only if a subsequent offense is committed after conviction of and sentencing for an earlier offense, and Afanador points out that he was convicted of the prior automobile theft used to enhance his conviction on the same day that he was convicted of one of the predicate felonies for his habitual offender enhancement, such that those two prior crimes are not “unrelated” under the definition provided in the habitual offender statute.
The State, in contrast, argues the double enhancement of Afanador’s conviction is not improper because his prior automobile theft conviction did not arise as part of the same res gestae as either of the predicate felonies for his habitual offender enhancement. In support, the State cites Dye v. State, 984 N.E.2d 635 (Ind. 2013) (hereinafter “Dye II”), which held the State could not “support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.” Id. at 630.
Afanador’s argument is a request that we expand our Indiana Supreme Court’s pronouncement in Dye II of the circumstances that cause a double enhancement to be improper. If such expansion is to occur, we believe it lies within the province of our Supreme Court to modify Dye II, and we accordingly affirm Afanador’s double enhancement.
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Afanador’s arguments herein concern only Cause 1189, in which his conviction of automobile theft was elevated to a Level 5 felony and his sentence therefor was enhanced by a habitual offender finding. He argues he received an impermissible double enhancement because his Predicate-2 Handgun conviction and his Predicate-3 Auto Theft conviction are not “unrelated” in the context of Indiana’s enhancement law and, therefore, the convictions cannot be used simultaneously to support two sentence enhancements on a single conviction. (Appellant’s Br. at 13.) The State asserts the two sentence enhancements were permissible because “[t]he two prior convictions Afanador argues were related were based on crimes committed five years apart, charged under two different cause numbers, and had none of the same operative facts.” (Appellee’s Br. at 7.).
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“Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses.” Dye I, 972 N.E.2d at 857. Progressive-penalty statutes “elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense.” Id. A double enhancement issue comes about when “more than one of these statutes is applied to the defendant at the same time.” Id. Double enhancements are impermissible “unless there is explicit legislative direction authorizing them.” Id. at 856.
In this case, Afanador’s Level 6 felony auto theft conviction was elevated to a Level 5 felony by a progressive-penalty statute and then his sentence was enhanced by the habitual offender finding. Afanador’s argument centers around the text of the general habitual offender statute, which provides that if the State seeks a habitual offender sentencing enhancement for a person convicted of a Level 5 felony, such as Afanador, the State must prove the person has two prior “unrelated” felony convictions. Ind. Code § 35-50-2-8(c).
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[F]or two convictions to qualify as unrelated felonies under the general habitual offender enhancement statute, “[t]he commission of the second felony must be subsequent to the sentencing of the first and the sentencing for the second felony must precede the commission of the principal felony for which the enhanced sentence is being sought.” Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999).
For example, herein, the State alleged Afanador had three prior felonies: Predicate-1 Forgery, Predicate-2 Handgun, and Predicate-3 Auto Theft. Afanador committed, was convicted of, and received his sentence for Predicate1 Forgery a decade before he committed either Predicate-2 Handgun or Predicate-3 Auto Theft. Therefore, Predicate-1 Forgery is “unrelated” as that term is defined in the habitual offender statute to both Predicate-2 Handgun and Predicate-3 Auto Theft. See Ind. Code § 35-50-2-8(f). The same cannot be said, however, about Predicate-2 Handgun and Predicate-3 Auto Theft because although Afanador committed Predicate-2 Handgun five years before he committed Predicate-3 Auto Theft, he was convicted of and sentenced for the two crimes on the same day. Consequently, the two offenses are not “unrelated” prior felonies pursuant to the definition provided in the habitual offender statute. See id.
Accordingly, the State would be prohibited by the plain language of the general habitual offender statute from using both Predicate-2 Handgun and Predicate-3 Auto Theft to support Afanador’s general habitual offender enhancement. See Jackson v. State, 546 N.E.2d 846, 847 (Ind. 1989) (habitual offender enhancement invalid when State failed to prove second predicate felony occurred after sentencing for the first predicate felony). The State did not, however, use Predicate-2 Handgun and Predicate-3 Auto Theft to support Afanador’s general habitual offender enhancement. Instead, the State used Predicate-3 Auto Theft to support enhancing Afanador’s sentence under the progressive penalty statute for repeat automobile thieves, and the State used Predicate-2 Handgun to support enhancing Afanador’s sentence under the general habitual offender statute. Afanador nonetheless argues this was also impermissible.
The State argues Afanador is incorrect that the definition of “unrelated” from the habitual offender statute controls the meaning of unrelated in the double enhancement context. According to the State, convictions are unrelated for double enhancement purposes if they were not part of the same res gestae. The State’s argument is based on language from our Indiana Supreme Court in Dye II, 984 N.E.2d 635.
In Dye-I, the State charged Dye with unlawful possession of a firearm by a serious violent felon (“SVF”). 927 N.E.2d at 855. The State alleged Dye was a SVF by virtue of a 1998 conviction of attempted battery with a deadly weapon, and the State also alleged Dye was a habitual offender by virtue of a 1998 conviction of possession of a handgun within 1,000 feet of a school and a 1993 conviction of forgery. Id. at 855-56. The trial court agreed with the State, but our Indiana Supreme Court subsequently vacated the habitual offender sentence enhancement. Id. at 858. The State then filed a petition for rehearing, which the Supreme Court granted. Dye-II, 984 N.E.2d at 627.
On rehearing, the Court explained, “[a]lthough the habitual offender adjudication was not based on the same felony used to establish that Dye was a serious violent felon, it was based on a felony that was part of the same res gestae.[8 ]” Id. at 629. Dye’s 1998 conviction of attempted battery with a deadly weapon and his 1998 conviction of possession of a handgun within 1,000 feet of a school were part of the same res gestae because they both stemmed from a single confrontation between Dye and an Elkhart police officer. Id…Thus, the Court held “the State is not permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon.” Id. at 630.
In so holding, the Court cited with approval the observation of the dissenting Court of Appeals Judge who noted: “it is incongruous to hold that ‘two offenses . . . [ ] so related they could not be used together for an habitual offender enhancement are, at the same time, so unrelated that they may support a double enhancement in the form of an SVF count and an habitual offender enhancement.” Id. (quoting Dye v. State, 956 N.E.2d 1165, 1175 (Ind. Ct. App. 2011) (May, J., dissenting) (emphasis in original), trans. granted, vacated, 963 N.E.2d 1115 (Ind. 2012)). Afanador relies on this quotation to argue that because Afanador’s Predicate-2 Handgun conviction and his Predicate-3 Auto Theft conviction cannot both be used to support a sentence enhancement under the general habitual offender statute, see Ind. Code § 35-50-2-8(f) (defining two crimes as “unrelated” if the second occurred after sentencing for the first), the use of both convictions to support simultaneous sentence enhancements resulted in an impermissible double enhancement of Afanador’s sentence.
However, Afanador’s argument takes our Supreme Court’s holding in Dye-II a step too far. For one, we note Indiana Code section 35-50-2-8(f) expressly states its definition of “unrelated” is intended for “purposes of this section”— the general habitual offender statute— “only.” Yet, Afanador asks us to expand that definition beyond the general habitual offender context and apply it to all double enhancements. Second, it ignores the primary focus of Dye-II, which was that two offenses committed in the same episode of criminal conduct could not be used to support double enhancement. 984 N.E.2d at 630; see also Woodruff v. State, 80 N.E.3d 216, 218 (Ind. Ct. App. 2017) (explaining Dye-II stands for the proposition that “there is a double enhancement issue when more than one of the types of statutes that authorize enhancements for repeat offenders are applied to the same proof of an ‘uninterrupted transaction’”), trans. denied.
The plain language of the general habitual offender statute prohibited the State from using Afanador’s Predicate-2 Handgun conviction and his Predicate-3 Auto Theft conviction to support an enhancement under that statute. However, the State was not prohibited from using the two offenses to support separate enhancements under different recidivist offender statutes because the two crimes were not part of the same res gestae. Therefore, the trial court did not err in using the Predicate-3 Auto Theft conviction to support elevating Afanador’s automobile theft conviction to a Level 5 felony under the progressive penalty statute for repeat automobile thieves and relying upon Afanador’s Predicate-2 Handgun conviction to enhance his sentence pursuant to Indiana’s general habitual offender statute. Consequently, we affirm the trial court.
Affirmed.
Vaidik, J., and Molter, J., concur.