Question: What Does “HSO” Mean?
Answer: Habitual Substance Offender – Which Can Lead To An Enhancement Of Criminal Penalties!
In 2013, the State filed an Information charging John Light with Count I, operating a motor vehicle while privileges are forfeited for life; and Count II, operating a vehicle while intoxicated, a Class A misdemeanor. Later, the State filed an amendment to the Information, adding a habitual substance offender charge. Light pled guilty to all charges in an open plea and the trial court imposed an executed 6 year sentence for operating while forfeited for life, and an executed 1-year sentence on the Class A misdemeanor operating a vehicle while intoxicated. The trial court enhanced the Class A misdemeanor by 6-years for the habitual substance offender (HSO) adjudication, with 3 years executed and 3 years suspended. The trial court ordered the sentences to run consecutively, for a total of 13 years.
On appeal, Light contends that the trial court erred by ordering his conviction for operating a motor vehicle while privileges are forfeited for life and his HSO sentence enhancement, attached to his Class A misdemeanor conviction, to be served consecutively. He maintains that the imposition of the consecutive sentences of the HSO enhancement with his sentence for operating a vehicle for life constitutes an impermissible double enhancement. However, Indiana courts have previously discussed the ways in which the Legislature has dealt with individuals who have proven to be repeat or habitual criminals. The first type, the general habitual offender statute provides that a person convicted of 3 felonies of any kind are classed as “habitual offenders.” Habitual offenders are subject to an additional term of years beyond that imposed for the underlying felony. The second type, specialized habitual offender statutes, applies where the predicate underlying offenses are of a common type. Examples are habitual traffic violators to an additional term of years beyond that imposed for the underlying traffic offense, and the statute at issue in this case, which applies to habitual substance offenders. The third and final type, the progressive penalty statutes, is even more specialized. “Under this type, the seriousness of a particular charge (with a correspondingly more severe sentence) can be elevated if the person charged has previously been convicted of a particular offense.” Examples of progressive penalty statutes include the statute at issue here.
Light pled guilty to a Class C felony, operating a motor vehicle while privileges are forfeited for life, based on the same underlying conviction in Cause No. 79E01–0006–DF–190 (Cause DF–190) of March 11, 2002, as well as a Class A misdemeanor conviction with an HSO enhancement. “A person is a HSO if the individual has accumulated at least two prior unrelated substance offense convictions. According to the charging Information, Light’s HSO enhancement is predicated on three prior unrelated substance offenses: (1) Cause DF–190, operating while intoxicated, on March 11, 2002; (2) Cause No. 12D01–9410–CF–89 (Cause CF–89), operating while intoxicated, on September 30, 1995; and (3) and Cause No. 12D01–9301–CM–32 (Cause CM–32), operating while intoxicated, on May 10, 1993. Accordingly, only the progressive penalty statute and the specialized habitual offender statute are implicated in this case. As a general rule, 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. Although the trial court seemingly relied on the same Cause DF–190 to support both enhancements, we note that the underlying predicate offense arising out of Cause DF–190 is different for each enhancement. For the Class C felony enhancement, the predicate offense is operating a motor vehicle after driving privileges are forfeited for life, while the predicate offense for the HSO enhancement is a conviction for operating while intoxicated with a prior conviction. Nevertheless, the State was merely required to establish 2 prior unrelated substance offenses for the HSO enhancement. Thus, even though the State established 3 such offenses to sustain a valid HSO enhancement, it needed only 2. Light’s 2 enhancements were not based on the same prior felony convictions: his Class C felony enhancement is based on the underlying Cause DF–190; while his HSO enhancement is based on the underlying Cause CF–89 and Cause CM–32. We therefore conclude that the trial court’s imposition of consecutive sentences does not constitute an improper double enhancement under the facts and circumstances of the present case. 28 N.E.3d 1106