Scott Grundy v. State of Indiana

Jun 30 2015, 7:55 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kevin Wild Gregory F. Zoeller

Indianapolis, Indiana Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Scott Grundy, June 30, 2015

Appellant-Defendant, Court of Appeals Case No.

49A02-1409-CR-665

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Kurt Eisgruber, Judge

Appellee-Plaintiff. The Honorable Steven J. Rubick,

Magistrate

Cause No. 49G01-1401-FC-1983

Najam, Judge.

Statement of the Case

[1] Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony,

and his habitual offender adjudication. Grundy presents three issues for our

review, which we revise and restate as:

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1. Whether the State presented sufficient evidence to support his

conviction.

2. Whether his sentence is inappropriate in light of the nature of

the offense and his character.

3. Whether the trial court erred when it enhanced his sentence

under the prior version of the habitual offender statute.

[2] We affirm Grundy’s conviction and his sentence, and we hold that the July 1,

2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8,

do not apply retroactively to offenses committed prior to the effective date of

our new criminal code.

Facts and Procedural History

[3] In August 2012, Grundy began a romantic relationship with Jennifer Smith,

which lasted for more than a year. Because of Grundy’s alcoholism and

substance abuse, however, the two separated and reconciled frequently, and the

couple’s relationship was often tumultuous. Indeed, between April and late

December 2013, more than ten police reports resulted from Grundy’s

relationship with Smith.

[4] In December 2013, Smith was employed at Covance in Indianapolis, and, on

December 28, Smith agreed to give two of her coworkers, Tonya Hardin and

Fu Chia Tsai, a ride home after their shift ended at 7:00 p.m. The three’s

relationship was strictly professional; none associated outside of work. At

approximately 7:00 p.m., Smith, Hardin, and Tsai exited the building together

and walked to Smith’s vehicle, and, when they approached, they noticed that

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someone had broken Smith’s windshield wipers. Smith immediately suspected

Grundy, who had sent Smith argumentative text messages earlier in the day, to

which Smith did not respond.

[5] As the three observed the damage to Smith’s car, Grundy drove his vehicle1

from a nearby road, across a grassy area adjacent to the parking lot at Covance,

and over some shrubbery that divided the parking lot from the grassy area.

Grundy sped towards Smith, Hardin, and Tsai, and, when he got close to where

the three were standing, Grundy exited the vehicle and aggressively approached

Tsai. As Grundy walked towards Tsai, Grundy asked Tsai who he was and

about the status of his relationship with Smith. When Tsai answered that he

was Smith’s coworker, Grundy responded, “Co-worker my ass.” Tr. at 13.

Grundy then charged Tsai and punched him once in the face, which knocked

Tsai to the ground. Once down, Grundy delivered a kick to Tsai’s face.

Grundy immediately returned to his vehicle and fled. Tsai remained conscious

but went into shock and lost memory for ten seconds after the attack.2

[6] After the attack, Smith ran to the security desk at Covance and reported to the

acting security guard, Daniel Osborne, that Grundy had attacked Tsai.

Osborne called the police, and Officer Eric Walker with the Indianapolis

Metropolitan Police Department responded to Osborne’s call. Officer Walker

actually knew Tsai personally, but, when he arrived, Officer Walker did not

1

At the time, Grundy’s license was suspended as the result of a DUI conviction.

2

Tsai remembers being punched and kicked but nothing else about the assault or its immediate aftermath.

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recognize him because of the severe injuries to Tsai’s face. Smith identified

Grundy to Officer Walker as Tsai’s assailant.

[7] Because of his injuries, Tsai was transported to the hospital where he

discovered that Grundy had broken six of the seven bones in his right eye

socket, fractured his right cheek bone, and broken his nose in two places. Tsai’s

cheek was “significantly flattened,” and, at the hospital, he had double vision,

blurred vision, and trouble breathing. State’s Ex. 17. Tsai was treated and

released.

[8] On January 13, 2014, the hospital referred Tsai to Dr. Hu Bai Harold Lee, an

oculoplastic surgeon who specializes in reconstructive surgery, but, due to

swelling in Tsai’s face, Dr. Lee could not operate until January 21, 2014. In the

interim, Tsai continued to have difficulty chewing and breathing, 3 and he

suffered headaches almost daily, which disrupted his sleep. As a result of his

injuries, Tsai could not read. When Dr. Lee was able to operate on Tsai on

January 21, to reconstruct Tsai’s face, he placed three permanent titanium

plates with metal screws into Tsai’s eye socket, and he also fitted a permanent,

plastic implant into Tsai’s eye socket. The plates, screws, and implant restored

the bones in Tsai’s face to their anatomically correct positions, and they

corrected his double and blurred vision, which would have persisted absent the

surgery. Tsai’s vision prescription, however, changed, and the surgery

3

Tsai could not breathe out of his nose for approximately four months after the attack, which, in turn,

damaged his ribs. The injury to Tsai’s ribs required physical therapy.

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permanently left Tsai with scarring and a droopy eyelid. Moreover, because the

attack damaged a prominent nerve in Tsai’s eye socket, which provides

sensation to the cheek, Tsai now has permanent numbness in the right side of

his face.

[9] On January 15, 2014, the State charged Grundy by information with one count

of battery, as a Class C felony, and, on February 4, the State amended its

charging information to include one count of aggravated battery, a class B

felony. Thereafter, Grundy moved for a speedy trial, which the trial court

granted on June 9, and the State filed its habitual offender information on June

10.4

[10] While Grundy awaited trial in the Marion County Jail, he called his uncle,

Gerald Grundy (“Uncle Gerry”), who questioned Grundy about his crime. In

response, Grundy explained:

[Grundy]: . . . [W]hen two people [are] in a fight[,] how hard are

[they] supposed to fight[?] I hit the guy one time[,] kicked him

one time[;] that was it.

***

[Grundy]: [H]ow bad is serious bodily injury? I mean . . . they

have the video and all that. And allegedly I did all this stuff.

That’s how we talk on the phone. But even if the video was to

reflect anything[,] it would allegedly show somebody getting

punched one time and getting kicked one time and that’s it[.]

4

The State filed its Notice of Intent to File Habitual Offender Enhancement on January 29, 2014.

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***

[Uncle Gerry]: You hit him a couple times?

***

[Grundy]: Yeah[,] just tunin[g] somebody up a little bit for

me[dd]lin[g]. And that was it. . . .

[Uncle Gerry]: [O]h[,] he was . . . me[dd]lin[g] with you and

Jenny . . . ?

[Grundy]: Yeah . . . but I’m not gonna be rappin[g] on no phone

[be]cause they record all this stuff.

***

[Grundy]: . . . [I]t’s not that bad[,] man[.] I mean[,] it’s a

fight[. T]here’s no question it’s a fight[. S]omebody got f[*****]

up. In fights[,] people get f[*****] up.

***

[Grundy]: [T]hat’s the bottom line[. W]hat do you do[,] rub a

feather across somebody’s face that you fightin[g]? Never heard

of that one.

State’s Ex. 19.

[11] On July 24, just before trial and again from jail, Grundy sent a letter to Smith in

which he told her that she should not come to trial to testify against him. After

he professed his love to Smith, Grundy wrote:

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. . . If you show-up [sic] you will make yourself apart [sic] of an

epic event[. O]ne side will try to break you down[,] and so will

the other, and it will take its toll[. A]nd neither side will have

compassion for your well[-]being, because both side[s] will be

trying to win at your expense, [sic] (simple and plain)!

Beside[s] all that[,] what I am trying to say to you is it will not

matter what you say for me or against me[. It] will not make that

much difference that day, and why are you so gun hoe [sic] on

[testifying] when the others have chosen not too [sic]?

Basically[,] you are the only one tripping over all this[. Y]ou

know who has made it clear they are not coming, so why have

you made it clear to my Uncle [sic] that you are?

Babe[,] you know what is at stake with me should you act like

that[. Y]ou are not my Orangie[;] you can not [sic] help me that

day[,] and I am telling you not to come period! With the only

acception [sic] to this is [sic] that you are told by my folks too

[sic]. You are not going to play another role in ruining my life.

If you need to do anything[,] the only right thing is to be on my

side or stay away from all this. I see it has taken a serious toll on

you and your thinking and judgment. So allow me to reassure

you that all will be well if you listen and follow the instruction of

our team, and stay out of it[. Y]ou are in way over your head!

State’s Ex. 15.

[12] The trial court held Grundy’s bench trial on August 13. At the trial, Tsai

testified that, in addition to the permanent numbness in his face, he continued

to have headaches almost daily, which affect his sleep, and issues with his neck.

Further, he testified that he still has trouble with the functioning of his right eye.

At the conclusion of the trial, the court convicted Grundy of aggravated battery,

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a Class B felony, and “merge[d]” the battery charge, as a Class C felony, into

the aggravated battery conviction. Tr. at 119.

[13] Grundy’s habitual offender determination and sentencing hearing were held on

August 26. At the hearing, Grundy did not contest that he was a habitual

offender, and he stipulated to the admission of his prior convictions. Thus, the

trial court adjudicated Grundy a habitual offender and proceeded to the

sentencing phase of the hearing, during which Grundy offered in mitigation:

(1) his alcoholism and substance abuse; (2) his participation in Alcoholics

Anonymous and Narcotics Anonymous classes while incarcerated; (3) his role

as a caregiver to elderly family members who depend on him; and (4) his

expression of remorse for the injuries his attack inflicted on Tsai. At the

conclusion of the sentencing hearing, the court sentenced Grundy to ten years

in the Indiana Department of Correction for the aggravated battery, the

advisory sentence for a Class B felony, which the court enhanced by another ten

years, the minimum allowed under the habitual offender statute as it existed

before the revisions to our criminal code took effect on July 1, 2014. The court

enhanced Grundy’s sentence by only ten years because it believed that Grundy

was not “the worst of the worst” habitual offenders. Id. at 177. The trial court

suspended two years of Grundy’s sentence to probation.

[14] In support of the sentence imposed, the trial court stated:

[W]hat your history has shown me is that you don’t learn from

your mistakes despite ample opportunities . . . . [W]henever you

talked about this particular incident[,] you kept saying[,] “I

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wouldn’t do it if I were not under the influence of drugs or

alcohol.” . . . [B]ut if you want me to believe you and believe the

remorse that you said[,] you don’t get to say[,] “I wouldn’t have

done this if.” You simply have to say[,] “I did it—I was wrong.”

You don’t put that distance between yourself and the act by

claiming that you were under the influence at the time because

that undercuts every statement of remorse you’re making to me.

If you [were] wrong, admit you were wrong[;] don’t qualify it.

***

[T]he State[,] today[,] has requested a [thirty-five-]year sentence.

I do not find that a [thirty-five-] year sentence is appropriate . . . .

[B]ut I also don’t believe that the State’s last [plea] offer [of a

twelve-year sentence] is sufficient. Having heard all of the

evidence and having considered everything put forth

today[, twelve years] is far too low, [thirty-five] is far too

much . . . .

In mitigation[,] though[,] Mr. Grundy took this case to trial[.] I

still find he is due some mitigating weight having essentially

accepted his status as a habitual offender. . . . Mr. Grundy has a

remarkable family. . . . [I]t goes to your credit, Mr. Grundy, that

the older members of your family rely on you as heavily as they

do[,] so I’m affording some mitigating weight for that and some

mitigating weight for the hardship that will be visited on your

family by virtue of your impending incarceration. I will also give

you some mitigating weight for your history of substance abuse.

Your criminal history reflects [seventeen] alcohol and drug

related arrests. One is too many. [Seventeen] is far too many[,]

so you clearly have a problem, Mr. Grundy[,] but the weight that

I give to that—the mitigating weight I give to that is tempered by

the virtue of the number of opportunities that you’ve had to

correct your behavior.

In aggravation . . . your criminal history is something that cannot

be overlooked. You have had [thirty-nine] total arrests, . . .

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[twelve] misdemeanor convictions, three felonies—again,

[seventeen] alcohol or drug related offenses[,] though not all [of]

those have resulted in a conviction. The ones today that interest

me the most and concern me the most are the battery conviction

you had in 1991 . . . , your battery conviction in 2000 . . . , your

second felony conviction for battery in 2009 . . . , the invasion of

privacy charge from 2010 . . . [,] and your 2013 battery

conviction . . . . Those are the convictions that have an element

of violence and they show me that over the last [twenty-three]

years[,] your propensity toward anger and violence has not

lessened. I’m also more than a little troubled by the gun that you

have tattooed on your shoulder . . . . [T]o have a gun tattooed on

your shoulder glorifies violence. . . . [I]t speaks to something in

your character that is concerning. I also have to give aggravating

weight to . . . the effect this crime had on your victim. . . . When

the structure of a person’s face is surgically changed[,] it changes

that person forever. . . . [I]t was such a permanent change and

his fear is such that he has had to leave this country[; 5] that’s

pretty significant.

You submitted to the Court a number of certificates that you

accumulated while you were awaiting trial and ask for mitigating

weight to be afforded that[,] but that’s counter-balanced by your

efforts while incarcerated to influence the witnesses in this case.

There’s no question the letter that you sent . . . was an effort to

influence her. It was manipulative. . . . [T]here’s no question

that you were attempting to influence your ex, attempting to

convince her not to come to trial or her life would be changed[,]

and she would be denied the love and support of your

family[. T]hat was devious . . . and troubling.

Lastly[,] in the telephone call that was played during the trial[,]

you tried to explain away your actions characterizing it as just a

5

At some point after Grundy’s trial but before sentencing, Tsai told the prosecutor that he was returning to

his native Taiwan because he no longer felt safe in the United States.

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fight—that is was tuning up a guy for [meddling,] but this was

not a fight[;] this was an attack. Mr. Tsai was not involved

beyond being on the receiving end of a devastating punch[,] and

when he fell to his knees defenseless[,] you kicked him in the

head. That was an attack[. I]t was unprovoked[ and] irrationally

violent[,] so coming here today and accepting responsibility and

making a statement of remorse in an effort to remove some of the

sting rings a bit hollow, Mr. Grundy.

Id. at 170-76 (quotation marks and paragraph structure supplied). This appeal

ensued.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[1] Grundy first contends that the State presented insufficient evidence to convict

him of aggravated battery. Our standard of review for sufficiency of the

evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).

In reviewing the sufficiency of the evidence, we examine only the

probative evidence and reasonable inferences that support the

verdict. We do not assess witness credibility, nor do we reweigh

the evidence to determine if it was sufficient to support a

conviction. Under our appellate system, those roles are reserved

for the finder of fact. Instead, we consider only the evidence

most favorable to the trial court ruling and affirm the conviction

unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

quotation marks omitted).

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[2] To prove that Grundy committed aggravated battery, as charged, the State had

to demonstrate that he knowingly or intentionally inflicted injury on Tsai that

caused “protracted loss or impairment of the function of a bodily member or

organ.” Ind. Code § 35-42-2-1.5(2). We have previously observed “that

‘protracted’ means to ‘draw out or lengthen in time,’ and that ‘impairment’

means the ‘fact or state of being damaged, weakened, or diminished.’” Mann v.

State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008) (citations omitted). Expert

testimony is not required to prove that a victim suffered a protracted

impairment. Id.

[3] Grundy concedes that Tsai suffered serious injuries, which is sufficient to

support a conviction for battery, as a Class C felony. See I.C. § 35-42-2-1(a)(3).

However, Grundy asserts that the evidence failed to demonstrate that Tsai

suffered “protracted loss or impairment of the function” of his eye, which is

necessary to support a conviction for aggravated battery. I.C. § 35-42-2-1.5(2).

Instead, Grundy argues that, at the time of his trial, Tsai benefitted from the full

functionality of his right eye.

[4] In support of this argument, Grundy acknowledges that, in addition to

permanent numbness and scarring, Tsai continued to have headaches and neck

problems. However, he points out that Tsai did not lose consciousness during

or after the attack and that Dr. Lee testified that Tsai’s surgery “was successful

in restoring Tsai’s function back to his baseline level.” Appellant’s Br. at 12.

But it is apparent that Grundy’s argument on appeal is merely a request that we

reweigh the evidence, which will not do. See Pillow, 986 N.E.2d at 344. The

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evidence most favorable to the judgment establishes that, beyond protracted

loss or impairment, Grundy’s attack left Tsai with permanent numbness,

permanent scarring, and degraded vision in his right eye. Further, more than

six months after the attack, Tsai continued to suffer from headaches, neck pain,

and loss of sleep. This evidence is sufficient to demonstrate protracted loss or

impairment and, therefore, to support Grundy’s conviction. See, e.g., Fleming v.

State, 833 N.E.2d 84 at 90 (Ind. Ct. App. 2005) (distinguishing Neville).

[5] In his attempt to argue that the evidence was insufficient to convict him of

aggravated battery, Grundy also attempts to analogize the injuries inflicted in

this case to those suffered by the victims in Neville v. State, 802 N.E.2d 516 (Ind.

Ct. App. 2004), trans. denied, and Salone v. State, 652 N.E.2d 552 (Ind. Ct. App.

1995), trans. denied, where we held that the evidence was insufficient to sustain

the convictions for aggravated battery therein.6 However, those cases do not

stand for the proposition that Grundy ascribes to them. In both cases, the

prosecution failed to offer any evidence regarding the “severity or duration of

functional impairment caused by the victim’s burns.” Neville, 802 N.E.2d at

519 (discussing Salone, 652 N.E.2d at 559). The prosecutors in Neville and

Salone left proof of protracted loss or impairment solely to an inference drawn

by the factfinder “as a matter of common knowledge” that the injuries “resulted

in protracted loss or impairment.” Id. In contrast, here, the State offered

6

In Salone, Salone was convicted of two counts of aggravated battery that corresponded to injuries inflicted

on two separate victims. We affirmed one of his convictions and reversed the other. 652 N.E.2d at 559-60.

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testimony from both Tsai and Dr. Lee that Tsai’s injuries were severe, long-

lasting, and, to some extent, permanent.

Issue Two: Sentence

[6] Next, Grundy asserts that his aggregate twenty-year sentence is inappropriate in

light of the nature of the offense and his character, and, as such, he requests that

we revise his sentence downward. Article 7, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

Ct. App. 2007) (alteration in original). This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the

trial court’s recognition or non-recognition of aggravators and mitigators as an

initial guide to determining whether the sentence imposed was inappropriate.

Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met

th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812

(alteration original).

[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the

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outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224.

[8] With regard to the nature of the offense, Grundy characterizes his crime as “a

one-punch, one-kick moment of alcohol-influenced senselessness,” which, he

argues, was “not unusually severe.” Appellant’s Br. at 14. Further, Grundy

contends that his sentence is inappropriate because Tsai “made a full functional

recovery.” Id. at 15. However, this is not how the trial court described

Grundy’s attack. In contrast to Grundy’s assessment of his crime, the trial

court called his crime a “devastating,” “unprovoked,” and “irrationally violent”

attack on a “defenseless” victim. Tr. at 176. We agree with the trial court.

Grundy viciously assailed Tsai and later downplayed the severity of his crime to

his uncle. Tsai suffered permanent injuries and now feels unsafe in the United

States. The nature of the offense supports Grundy’s sentence.

[9] Grundy’s character also supports his sentence. As the trial court found,

Grundy has a substantial criminal history, which includes several other

convictions for battery. A number of his convictions are felonies, and,

significantly, Grundy was on probation and drove on a suspended license when

he attacked Tsai. Finally, Grundy attempted to manipulate Smith to keep her

from testifying against him. Thus, we also hold that Grundy’s sentence is not

inappropriate in light of his character.

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Issue Three: Habitual Offender Statute

[10] Last, Grundy contends that the trial court erred when it sentenced him pursuant

to the habitual offender statute in effect prior to July 1, 2014. He asserts that,

instead, the trial court should have sentenced him pursuant to the amended

habitual offender statute, which went into effect on July 1, 2014. Grundy’s

challenge presents a question of law, which we review de novo. State v. Moss-

Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).

[11] Prior to July 1, 2014, Indiana’s habitual offender statute provided:

The court shall sentence a person found to be a habitual offender

to an additional fixed term that is not less than the advisory

sentence for the underlying offense nor more than three (3) times

the advisory sentence for the underlying offense. However, the

additional sentence may not exceed thirty (30) years.

I.C. § 35-50-2-8(h) (2013). That statute now states:

The court shall sentence a person found to be a habitual offender

to an additional fixed term that is between:

six (6) years and twenty (20) years, for a person

convicted of murder or a Level 1 through Level 4

felony[.]

Ind. Code § 35-50-2-8(i)(1) (2014). Had Grundy committed his offense after

July 1, 2014, his aggravated battery conviction would be a Level 3 felony. See

I.C. § 35-42-2-1.5 (2014).

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[12] When the legislature enacted the new criminal code, it did so alongside a

general savings statute. That statute provides that the revisions to the criminal

code do not affect “(1) penalties incurred; (2) crimes committed; or (3)

proceedings begun” before those revisions took effect. I.C. § 1-1-5.5-21(a)

(2014). Further, the savings clause specifies that “[t]he general assembly does

not intend the doctrine of amelioration to apply.” 7 I.C. § 1-1-5.5-21(b) (2014).

[13] Grundy contends that the general savings clause does not apply to habitual

offender determinations and, thus, that he should have benefitted from the

reduced enhancement provided for in the new habitual offender statute.

Specifically, Grundy asserts that “habitual offender” is a status, not a separate

crime, and that he obtained habitual offender status on August 26, 2014, after

the effective date of the revisions to our criminal code. Therefore, he reasons:

(1) “[t]here were no crimes committed prior to July 1, 2014”; (2) “[t]here were

no habitual offender penalties incurred prior to July 1, 2014”; and (3) “[t]here

were no proceedings begun on the habitual offender status because no

proceedings can begin until the underlying felony conviction[, which was

entered on August 13, 2014,] is in place.” Appellant’s Br. at 19.

[14] Grundy concludes that “a person cannot have the status of being a habitual

offender unless and until he has been convicted of the underlying felony.” Id.

(emphasis in original). Consequently, because the trial court wished to

7

Where no savings clause exists, the doctrine of amelioration allows a court to apply an ameliorative

amendment made to a sentencing statute “to all those sentenced after [the statute’s] effective date.” Hooker v.

State, 799 N.E.2d 561, 575 (Ind. Ct. App. 2003), trans. denied.

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sentence him to the minimum enhancement allowed under the habitual

offender statute, Grundy asserts that, had the court properly sentenced him

under the revised statute, he would have only received a six-year enhancement

and not the ten-year enhancement that he actually received.

[15] While we acknowledge the creativity of Grundy’s argument, we disagree with

his ultimate conclusion. Although Grundy is correct that a habitual offender

status “is not a separate crime,” nevertheless, that status is attached to the

underlying crime. See Baurer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007),

trans. denied. As we stated in Baurer, a habitual offender finding is “an

enhancement of the sentence for the underlying crime to which it is attached.” Id.

(emphasis supplied). And it is well settled that “the sentencing statutes in effect

at the time the defendant committed the offense govern the defendant’s

sentence.” Marley, v State, 17 N.E.3d 335, 340 (Ind. Ct. App 2014), trans. denied.

As a panel of this court recently stated, “[t]he time of a crime is selected as an

act of free will by the offender, and, thus, it is the criminal, not the State, that

chooses which statute applies to his or her offense.” Whittaker v. State, ___

N.E.3d ___, 2015 WL 2405590, at *2 (Ind. Ct. App. May 20, 2015), not yet

certified; see also Bell v. State, 654 N.E.2d 856, 858 (Ind. Ct. App. 1995).

[16] Therefore, although Grundy was not adjudicated a habitual offender until

August 26, 2014, his status as such is inextricably attached to the date he

committed the underlying crime, which was on December 28, 2013, well before

the effective date of the revisions to our criminal code. And, again, “the law in

effect when the crime was committed controls sentencing.” Riffe v. State, 675

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N.E.2d 710, 712 (Ind. Ct. App. 1996), trans. denied. The legislature

acknowledged as much when it enacted a general savings clause that states that

the revisions to the criminal code do not apply to crimes committed before the

effective date of those revisions, through the doctrine of amelioration or

otherwise. See Marley, 17 N.E.3d at 340 (“It is abundantly clear . . . that the

General Assembly intended the new criminal code to have no effect on criminal

proceedings for offenses committed prior to the enactment of the new code.”),

trans. denied. We, therefore, hold that the trial court did not err when it

enhanced Grundy’s sentence pursuant to the habitual offender statute in effect

prior to July 1, 2014.

Conclusion

[17] In sum, we hold that sufficient evidence supports Grundy’s conviction for

aggravated battery. Further, we hold that the trial court did not err when it

sentenced Grundy or when it enhanced his sentence pursuant to the habitual

offender statute in effect prior to July 1, 2014.

[18] Affirmed.

Baker, J., and Friedlander, J., concur.

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