Text 2014_Text.qxd 7/21/2014 3:22 PM Page 351 CRIMINAL LAW AND PROCEDURE 351 (1) the person has been convicted of two (2) the offense for which the state seeks to (2) prior unrelated felonies; have the person sentenced as a habitual (2) at least one (1) of the prior unrelated offender was committed after commission felonies is not a Level 6 felony or a Class of and sentencing for the second prior D felony; and unrelated felony conviction. (3) if the person is alleged to have com- (3) for a conviction requiring proof of mitted a prior unrelated: three (3) prior unrelated felonies, the third (A) Level 5 felony; prior unrelated felony conviction was com- (B) Level 6 felony; mitted after commission of and sentencing (C) Class C felony; or for the second prior unrelated felony con- (D) Class D felony; viction. not more than ten (10) years have elapsed between (g) A conviction does not count for purposes the time the person was released from imprison- of this section as a prior unrelated felony convic- ment, probation, or parole (whichever is latest) and tion if: the time the person committed the current offense. (1) the conviction has been set aside; or (d) A person convicted of a Level 6 felony is (2) the conviction is one for which the a habitual offender if the state proves beyond a rea- person has been pardoned. sonable doubt that: (h) If the person was convicted of the felony (1) the person has been convicted of three in a jury trial, the jury shall reconvene for the (3) prior unrelated felonies; and sentencing hearing. If the trial was to the court or (2) if the person is alleged to have com- the judgment was entered on a guilty plea, the mitted a prior unrelated: court alone shall conduct the sentencing hearing (A) Level 5 felony; under IC 35-38-1-3. The role of the jury is to (B) Level 6 felony; determine whether the defendant has been con- (C) Class C felony; victed of the unrelated felonies. The state or the (D) Class D felony; defendant may not conduct any additional inter- not more than ten (10) years have elapsed between rogation or questioning of the jury during the the time the person was released from imprison- habitual offender part of the trial. ment, probation, or parole (whichever is latest) and (i) The court shall sentence a person found to the time the person committed the current offense. be a habitual offender to an additional fixed term (e) The state may not seek to have a person that is between: sentenced as a habitual offender for a felony (1) six (6) years and twenty (20) years, offense under this section if the current offense is for a person convicted of murder or a Level a misdemeanor that is enhanced to a felony in the 1 through Level 4 felony; or same proceeding as the habitual offender pro- (2) two (2) years and six (6) years, for a ceeding solely because the person has a prior person convicted of a Level 5 or Level 6 unrelated conviction. However, a prior unrelated felony. felony conviction may be used to support a habit- Any additional term imposed under this subsec- ual offender determination even if the sentence for tion is nonsuspendible. the prior unrelated offense was enhanced for any (j) Habitual offender is a status that results in reason, including an enhancement because the an enhanced sentence. It is not a separate crime person had been convicted of another offense. and does not result in a consecutive sentence. (f) A person has accumulated two (2) or three The court shall attach the habitual offender (3) prior unrelated felony convictions for pur- enhancement to the felony conviction with the poses of this section only if: highest sentence imposed and specify which felony (1) the second prior unrelated felony con- count is being enhanced. If the felony enhanced viction was committed after commission of by the habitual offender determination is set aside and sentencing for the first prior unrelated or vacated, the court shall resentence the person felony conviction; and apply the habitual offender enhancement to the.