Vaidik, J.
Article 1, Section 19 of the Indiana Constitution provides, “In all criminal proceedings whatever, the jury shall have the right to determine the law and the facts.” In Seay v. State, 698 N.E.2d 732 (Ind. 1998), our Supreme Court held that this provision applied in some habitual-offender proceedings because the legislature gave the jury in those cases the task of deciding whether the defendant was a habitual offender. Specifically, the Court explained that the jury’s Article 1, Section 19 right to “determine the law” gives it the discretion to refuse to find the defendant to be a habitual offender even if the defendant has the requisite prior felony convictions. Three years later, in Hollowell v. State, 753 N.E.2d 612 (Ind. 2001), the Court held that evidence regarding the defendant’s convictions, beyond the mere fact of conviction, is admissible because such evidence is relevant to the jury’s decision whether to exercise its discretion under Seay.
Here, the defendant in a habitual-offender proceeding wanted to testify about the circumstances surrounding his convictions in hopes of persuading the jury to reject the habitual charge, but the trial court wouldn’t allow it. Citing Seay and Hollowell, the defendant argues this violated Article 1, Section 19. But after Hollowell, the legislature amended the habitual-offender statute to provide that the role of the jury in a habitual-offender proceeding is limited to determining whether the defendant has been convicted of the prior felonies. This amendment eliminated the broader role recognized in Seay, as well as the discretion inherent in that role. Because the jury’s only role under the current habitual-offender statute is to determine whether the defendant has the requisite prior convictions, the trial court did not err by barring the defendant’s testimony about the circumstances surrounding his convictions.
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Harris…argues the trial court’s limitation of his testimony during the habitual-offender proceeding violated Article 1, Section 19 of the Indiana Constitution, which provides: “In all criminal proceedings whatever, the jury shall have the right to determine the law and the facts.” Harris did not raise this constitutional claim in the trial court, thereby waiving it for appeal… Waiver notwithstanding, Harris’s claim fails on the merits.
Habitual-offender proceedings are governed by the habitual-offender statute, Indiana Code section 35-50-2-8. The statute has been amended many times over the years, but the basic concept has remained the same: a person convicted of a felony can have his sentence enhanced significantly if the State proves beyond a reasonable doubt that the person has a certain number of prior unrelated felony convictions. Unless the defendant admits his habitual-offender status, the status is determined in a separate proceeding after the defendant is convicted of the current offense. While the defendant has a constitutional right to a jury trial on the current offense, he does not have a constitutional right to have a jury make the habitual-offender determination. See Walden v. State, 895 N.E.2d 1182, 1184 n.2 (Ind. 2008); Smith v. State, 825 N.E.2d 783, 786 (Ind. 2005); O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct. App. 2003). However, as discussed below, the habitual-offender statute provides for a jury role in such proceedings. That is where Article 1, Section 19 comes into play.
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Harris contends the change to the statute does not affect his claim under Article 1, Section 19 “because Article 1, Section 19 provides a right for jurors to determine the law” and “the Indiana General Assembly cannot infringe upon or alter that right by statute.” Appellant’s Reply Br. p. 8 n.1. But again, Article 1, Section 19 applies during habitual-offender proceedings only because the legislature has provided for a jury role in those proceedings. See Seay, 698 N.E.2d at 734, 736. And because the legislature could eliminate the jury’s role entirely without violating Article 1, Section 19, it can limit the jury’s role without violating Article 1, Section 19. It has done so in the current version of the habitual-offender statute, providing that the only decision the jury makes is whether the defendant has the requisite prior convictions.
For these reasons, Harris’s testimony about the circumstances surrounding his convictions would not have been relevant to the jury’s decision, and he did not have a right to give it under Article 1, Section 19 or the habitual-offender statute. Therefore, the trial court did not err by barring the testimony.
As a final note, while the trial court’s evidentiary decision was consistent with the current version of the habitual-offender statute, its jury instruction and verdict form were not. The court instructed the jury it was free to find Harris is not a habitual offender even if “the fact of the prerequisite prior felony convictions is uncontroverted.” See Appellant’s App. Vol. II p. 197. And it gave the jury a verdict form that asked not only whether Harris has the requisite prior convictions but also whether he is a habitual offender. Id. at 202-03. Harris, of course, is not complaining about the instruction or the verdict form, as they could have only benefitted him. But under the current statute, the ultimate decision of whether the defendant is a habitual offender is no longer the jury’s to make, so that instruction and verdict form are inaccurate and should not be used. Trial courts should give instructions and verdict forms that recognize the jury’s limited role as provided in the current statute: determining whether the defendant has the requisite prior convictions. Article 1, Section 19 still applies to such proceedings, to the extent a jury is involved, but the jury’s role and inquiry are much narrower than they were under Seay, and the instructions and verdict forms should reflect that.
The parties agree that the trial court erred by ordering the fifteen-year habitual-offender enhancement to run “consecutive” to Harris’s other sentences. The habitual-offender statute provides, “Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.” I.C. § 35-50-2-8(j). Therefore, we remand this matter to the trial court with instructions to correct the sentencing documents to show that the habitual-offender enhancement is attached to the twelve-year sentence for the robbery conviction, for a total of sentence of twenty-seven years on that count.
Affirmed and remanded.
Najam, J. and Weissmann, J. concur