author: DAVID, Justice.

text:
    SHEPHERD PROPERTIES CO., d/b/a ShepCo Commercial Finishes, Appellant (Intervening Defendant below), v. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 91, Appellee (Plaintiff below).
    No. 49S04-1112-PL-697.
    Supreme Court of Indiana.
    July 31, 2012.

      Michael L. Einterz, Michael L. Einterz, Jr., Zionsville, IN, Attorneys for Appellant.
    William R. Groth, Indianapolis, IN, Attorney for Appellee.
   DAVID, Justice.

In this case, a plaintiff prevailed on its Access to Public Records Act claim against a public agency and an intervening private party. As required by statute, the trial court awarded the plaintiff attorney’s fees.

The fees were awarded against both the public agency and intervening private party, jointly and severally. The private party argued that the Access to Public Records Act does not contemplate the award of attorney’s fees against an intervening private party and that only the public agency should be liable for the fees.

We hold that the Access to Public Records Act, in light of the legislature’s liberal-construction mandate and the statute’s underlying policy, permits the award of attorney’s fees against an intervening private party. We further hold that, in this case, the trial court did not abuse its discretion in its apportionment of liability.

Facts and Procedural History

The International Union of Painters and Allied Trades (Union) requested to inspect and copy payroll records in the possession of the Metropolitan School District of Warren Township (Township). The payroll records were submitted by ShepCo Commercial Finishes, a subcontractor on a public-works project.

Union claimed that the payroll records were “public records” subject to disclosure under the Access to Public Records Act (APRA). ShepCo and Township, on the other hand, contended that the payroll records were trade secrets and confidential financial information that fell under exceptions within the APRA.

Pursuant to the APRA, ShepCo made an informal inquiry of the Public Access Counselor (PAC) regarding disclosure of the records. Later, Union requested a formal advisory opinion from the PAC. Both times, the PAC concluded that the records did not need to be disclosed. Specifically, the PAC’s formal advisory opinion concluded that the records were “trade secrets” and “confidential financial information” that were exempt from disclosure under the APRA.

In October 2008, Union filed a complaint with the trial court, seeking to compel disclosure under the APRA and naming Township as the sole defendant. Township moved to add ShepCo as a necessary party. The trial court denied that motion, but it granted ShepCo’s subsequent motion to intervene.

Union, Township, and ShepCo all moved for summary judgment. In its motion, Union requested attorney’s fees pursuant to a provision in the APRA. After a hearing, the trial court entered summary judgment for Union and ordered Township to disclose the records. The trial court later held a separate hearing on Union’s request for attorney’s fees and awarded $20,234 in attorney’s fees against Township and ShepCo, jointly and severally.

Union then filed a motion to amend the final judgment, seeking additional attorney’s fees expended by its counsel in litigating the original request for attorney’s fees. ShepCo filed a motion to correct error, raising, for the first time, an argument on the appropriate weight to be given to the PAC’s advisory opinion and an argument challenging the constitutionality of the attorney’s fees award. The trial court denied the motion to correct error and entered an amended judgment awarding Union an additional $2,425 in attorney’s fees.

ShepCo appealed. The Court of Appeals held that a private entity like Shep-Co is not liable for attorney’s fees under the APRA and that Township, the public agency, was solely liable. Shepherd Props. Co. v. Int’l Union of Painters, 950 N.E.2d 321, 325 (Ind.Ct.App.2011). On rehearing, the Court of Appeals acknowledged two prior Court of Appeals cases that stated that a private party may be liable for the attorney’s fees of a party prevailing in an action to compel disclosure under the APRA. Shepherd Props. Co. v. Int’l Union of Painters & Allied Trades, Dist. Council 91, 955 N.E.2d 208, 209 (Ind.Ct.App.2011). But the Court of Appeals noted that the “APRA does not include language providing for payment of attorney’s fees by an intervenor, and will not write into the statute such a provision.” Id. (emphasis omitted). We granted transfer.

Standard of Review

The issue today is whether an intervening private entity can be held liable for attorney’s fees under the APRA. Because this is a matter of statutory interpretation, it is a pure question of law that we review de novo. State v. Int’l Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind.2012).

Access to Public Records Act

The public policy underlying the APRA is “that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Ind.Code § 5-14-3-1. Accordingly, the APRA requires a “public agency” to disclose its “public records” upon the request of any person. Id. § 5-14-3-3(a), (b).

Certain types of public records are excepted from the APRA’s disclosure requirement, and a public agency may not disclose those records unless specifically required by statute or court order. Id. § 5-14-3-4. A public agency or a member of the public may file an informal inquiry request or a request for a formal advisory opinion with the PAC regarding whether a document is subject to disclosure under the APRA. Id. § 5-14-4-10(5), (6) (2010).

A person denied access to a public record may file an action in court “to compel the public agency to permit the person to inspect and copy the public record.” Id. § 5-14-3-9(e). When such an action is filed, the public agency must notify each person who supplied any part of the public record at issue (1) that a request for release of the record was denied and (2) whether the denial was in compliance with an informal inquiry response or formal advisory opinion of the PAC. Id. Any person who supplied part of the disputed record is entitled to “intervene” in litigation resulting from the denial. Id.

If the plaintiff seeking disclosure prevails in the court action, the court “shall” award reasonable attorney’s fees, court costs, and expenses if the plaintiff first sought and received an informal inquiry response or formal advisory opinion from the PAC. Id. § 5-14-3-9®.

In this case, the parties agree that Township is a “public agency” as defined in the APRA and that ShepCo is not a “public agency.” See id. § 5-14-3-2(m). The parties also agree that ShepCo appeared as an intervenor as permitted by the APRA and that Township is liable for Union’s attorney’s fees under the APRA. The parties’ disagreement rests on whether ShepCo is also liable to Union for its attorney’s fees under the APRA.

A. Prior Decisions

Third-party liability for attorney’s fees under the APRA is an issue of first impression for this Court. However, before its decision in this case, the Court of Appeals had addressed the subject on two prior occasions. See Indianapolis Newspapers v. Indiana State Lottery Comm’n, 739 N.E.2d 144 (Ind.Ct.App.2000), trans. denied; Knightstown Banner, LLC v. Town of Knightstown, 882 N.E.2d 270 (Ind.Ct.App.2008), clarified on reh’g, 889 N.E.2d 317 (Ind.Ct.App.2008). In both opinions, described below, the Court of Appeals stated that third parties may be liable for the attorney’s fees of a party prevailing in an action to compel disclosure under the APRA.

In Indianapolis Newspapers, a newspaper requested that the Lottery Commission, a public agency, disclose documents containing information generated by lottery retailers. 739 N.E.2d at 146-47. Upon request by the newspaper, the PAC rendered an advisory opinion, stating that the documents requested must be disclosed under the APRA. Id. at 147.

The retailers sued the Lottery Commission to enjoin disclosure, and the newspaper intervened. Id. at 148. The Lottery Commission then tendered the disputed documents to the court under seal. Id. at 148-49. The trial court found that the Lottery Commission’s surrender of the documents obviated the need for it as a party and discharged it from liability, including liability for the newspaper’s attorney’s fees. Id. at 149-50. The newspaper appealed.

The Court of Appeals found the trial court erred in discharging the Lottery Commission because the Lottery Commission was still potentially liable to the newspaper for attorney’s fees under the APRA, depending on the outcome of the litigation. Id. at 155-56. But the Court of Appeals also discussed the retailers’ potential liability for attorney’s fees. First, the Court of Appeals generally stated that the APRA “does not require that the attorney fees be awarded to or from the public agency when it is clear that the statute contemplates the involvement of third parties.” Id. at 156. The Court of Appeals then explained how it would apportion liability for attorney’s fees if the newspaper prevailed in the litigation:

[W]e interpret the attorney fee provision to mean that, if the [newspaper] substantially prevails in this action, the Lottery is liable for the [newspaper’s] attorney fees from the time the PAC rendered her advisory opinion until the Lottery has made complete tender of the disputed documents to the trial court. After complete tender has been made, the Retailers become liable for the fees, unless there is later litigation concerning whether or not complete tender was in fact made, in which case the Lottery may again become liable for the [newspaper’s] fees in litigating that issue.

Id.

The Court of Appeals also found that because the Lottery Commission took the position that it was not liable for the newspaper’s attorney’s fees, the newspaper was required to appeal the issue. Id. And because the newspaper prevailed on that issue on appeal, the Court of Appeals determined that the newspaper was entitled to an award of appellate attorney fees under the statute. Id. The Court of Appeals further noted that had the retailers been involved in the appeal, it “might have been appropriate to apportion the [newspaper’s] appellate attorney fees between the Lottery and the Retailers.” Id. at 156 n. 10.

The Court of Appeals also addressed the issue of whether allowing third-party liability for attorney’s fees under the APRA would have a “chilling effect” on seeking intervention. Id. at 156 n. 9. The Court of Appeals determined that in the event a third party did not intervene, that did not mean the third party’s interests were without representation: “the public agency would have already independently determined that disclosure was improper prior to denying access, and would be compelled by the statute to litigate the issue if the private person did not intervene.” Id.

In a later case, Knightstown Banner, 889 N.E.2d 317, the Court of Appeals again confronted the issue of attorney’s fees under the APRA. The underlying lawsuit had already proceeded through two appeals, and on rehearing from the second appeal, the sole issue was whether third parties should share joint and several liability with a town for attorney’s fees and costs. 889 N.E.2d at 319.

The case had involved a newspaper’s request to inspect an agreement settling a civil rights action against the town. Id. at 319. The town was insured by Government Insurance Exchange (GIE) under a policy that made Government Insurance Managers (GIM) the town’s attorney-in-fact with the power to settle claims. Id. at 320 nn. 1-2. After the town and GIE denied the newspaper’s requests to inspect the settlement agreement, the newspaper filed an APRA action against the town, GIE, and GIM. Id. at 319-320. The newspaper was ultimately successful, and the trial court determined that the town, GIE, and GIM were jointly and severally liable for the newspaper’s attorney’s fees, costs, and expenses. Id. at 319.

GIE and GIM argued, among other things, that they should not share liability with the town for the newspaper’s attorney’s fees because they are not public agencies within the meaning of the APRA. Id. at 320. The Court of Appeals cited Indianapolis Newspapers for the proposition that the APRA “ ‘does not require that the attorney fees be awarded to or from the public agency when it is clear that the statute contemplates the involvement of third parties.’ ” Id. at 320 (quoting Indianapolis Newspapers, 739 N.E.2d at 156). The Court of Appeals found that GIE and GIM were “necessary parties” to the action because of the close relationship between the town, GIE, and GIM. Id. at 320. And it also found that GIE and GIM were very involved and active in the litigation: they negotiated and drafted the settlement agreement, had possession of the agreement when the newspaper sought disclosure, and strongly resisted the newspaper’s efforts to inspect the settlement agreement. Id. Because of those reasons, the Court of Appeals held that the trial court did not err in imposing joint and several liability on GIE and GIM for the newspaper’s attorney’s fees. Id. at 321.

B. Current Case

In its first opinion in this case, the Court of Appeals concluded that ShepCo was not liable for attorney’s fees because it was not a “public agency” that denied access to public records. It reasoned, “The attorney’s fees provisions of APRA are directed toward public agencies. There is no corollary provision for assessment of attorney’s fees against a private party in the event of improper nondisclosure.” Shepherd Props. Co., 950 N.E.2d at 325. The Court of Appeals added a footnote acknowledging the existence of Indianapolis Newspapers but did not explain whether that case had an effect on the present one. Id. at 325 n. 6.

The Court of Appeals then granted rehearing to expand upon the issue of “the propriety of an award of attorney’s fees under the Indiana Access to Public Records Act.” Shepherd Props. Co., 955 N.E.2d at 209. The Court of Appeals recognized the observation from Indianapolis Newspapers that the APRA “ ‘contemplates the involvement of third .parties.’ ” Id. (quoting Indianapolis Newspapers, 739 N.E.2d at 156). It also acknowledged that Knightstown Banner held that “private parties ‘aligned with the Town of Knights-town’ upon having been named as defendants in a lawsuit, should share joint and several liability with the Town for attorney’s fees and costs.” Id. (quoting Knightstown Banner, 889 N.E.2d at 319). But the Court of Appeals distinguished this case on the grounds that ShepCo was an “intervenor” in the litigation:

We do not disagree with ... prior observations from this Court, that APRA does not include language explicitly precluding attorney’s fees from a third party. Conversely, APRA does not include language providing for payment of attorney’s fees by an intervenor, and we will not write into the statute such a provision.

Id.

On transfer, ShepCo urges us to adopt the logic of the Court of Appeals, arguing that its status as an intervenor sets it apart from the private-party defendants in Indianapolis Newspapers and Knights-town Banner. ShepCo maintains that this is a “critical distinction” that shields it from liability for attorney’s fees under the APRA. Union contends that ShepCo’s participation in this action as an intervenor is not distinguishable from the participation of GIE and GIM in Knightstown Banner because ShepCo is likewise aligned with the public agency and actively opposed disclosure of the public records.

We agree with Union that there is no meaningful distinction between ShepCo as an intervenor in the APRA litigation and other private-party defendants who also oppose disclosure. “An intervenor is treated as if it was an original party and has equal standing with the parties.” Mercantile Nat’l Bank of Indiana v. Teamsters Union Local #142 Pension Fund, 668 N.E.2d 1269, 1271 (Ind.Ct.App.1996). And because we agree with the reasoning behind Indianapolis Newspapers and Knightstown Banner, we hold that it was permissible for the trial court to hold ShepCo jointly and severally liable for Union’s attorney’s fees. The text of the APRA and public policy support this conclusion.

As stated earlier, the APRA’s purpose is to ensure that the public is provided “full and complete information” about government affairs. I.C. § 5-14-3-1. Importantly, the Act mandates that it “shall be liberally construed to implement this policy.” Id.

Indiana public agencies are the gateways for public-record requests. But the APRA expressly permits private entities, like ShepCo, to intervene in any action to compel disclosure. Id. § 5-14-3-9(e). Specifically, whenever an action is filed under the APRA, the “public agency must notify each person who supplied any part of the public record at issue” and “[s]uch persons are entitled to intervene in any litigation.” Id. Thus, the legislature, in inserting this language, was aware that any action brought under the APRA could implicate the interests of both public agencies and private entities and that both could actively oppose disclosure of the public records at issue.

The APRA mandates an award of attorney’s fees to a plaintiff who “substantially prevails” if that party has first sought an advisory opinion from the public access counselor. Id. § 5 — 14—3—9 (i). That subsection, however, is silent as to who is liable for the attorney’s fees. As evidenced by the parties’ arguments on the issue, this silence leaves the statute open to at least two different interpretations— that only public agencies are liable for prevailing plaintiffs’ attorney’s fees or that both public agencies and private parties involved in the litigation may be liable. Because the provision is susceptible to more than one interpretation, it is ambiguous and open to statutory construction. City of North Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind.2005).

In construing the APRA’s attorney’s fees provision, this Court’s primary task is to give effect to the intent of the legislature. Id. We presume that the legislature intended the language used in the statute to be applied logically and consistently with the APRA’s underlying policy and goals. See Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind.2009).

To shield private entities from liability for attorney’s fees would thwart, rather than further, the public policy underlying the APRA. Here, the legislature has made it clear that the APRA must be “liberally construed to implement” the policy of full access to public records and transparency of government affairs. I.C. § 5-14-3-1. And the legislature clearly contemplated the involvement of private parties in APRA litigation. Removing from private entities any fear of liability for attorney’s fees would deter persons seeking to inspect public records from filing APRA actions, as the private entities could assert non-meritorious defenses to avoid disclosure and drive up litigation costs. In light of the “liberal” construction mandate and the underlying policy of the APRA, we construe Indiana Code section 5-14-3-9(i) as permitting private-party liability for a prevailing plaintiff’s attorney’s fees.

Now that we have determined that private parties may be liable for attorney’s fees under the APRA, the question remains of how courts should apportion liability. When determining the allocation of attorney’s fees liability between a public agency and a private entity, courts should consider various factors, such as whether a party acted in good or bad faith; whether a party played a nominal or active role; and whether a party was partisan or neutral in the cause of action. This is precisely what the trial court did in this case when evaluating the respective roles of ShepCo and Township in the litigation. Accordingly, the trial court did not abuse its discretion in the apportionment of attorney’s fees.

Conclusion

We hold that private parties may be held liable for a substantially prevailing plaintiffs attorney’s fees under the APRA. We also hold that the trial court did not abuse its discretion in awarding the fees against the public agency and intervening private entity, jointly and severally.

We affirm the trial court’s award of attorney’s fees to Union and remand to the trial court to determine what additional attorney’s fees the Union incurred under the APRA as a result of ShepCo’s appeal.

SULLIVAN and RUCKER, JJ., concur.

DICKSON, C.J., and MASSA, J„ dissent without opinion.

      . Ind.Code §§ 5-14-3-1 to 10 (2010 & Supp. 2011), amended by 2012 Ind. Legis. Serv. P.L. 134-2012 (West).

      . Portions of the APRA were amended effective July 1, 2012. See 2012 Ind. Legis. Serv. P.L. 134-2012 (West). Our analysis would remain the same under both the previous and current versions of the APRA, as the wording of the relevant provisions remains unchanged.

      . In its appellate brief, ShepCo reasserted two arguments from its motion to correct error: (1) the trial court erred when it failed to give appropriate weight to the opinion of the PAC and (2) the trial court's award of attorney’s fees under the APRA infringed on its rights to open access to the courts and to substantive due process in violation of Article 1, Section 12 of the Indiana Constitution. ShepCo argues that because the Court of Appeals never reached these issues, we must address them on transfer. Union contends that both arguments “have been waived because they were never addressed to the trial court until Shep-Co filed its Motion to Correct Errors.” We agree with Union. ShepCo failed to raise these two issues in any of its pleadings and motions, including its motion for summary judgment, that were filed before the trial court entered its judgment. It is well established that a party may not raise issues for the first time in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind.2000).

      . As Union points out in its transfer brief, the "American Rule” is not applicable to this case. "Indiana common law generally follows the 'American Rule,’ under which each party bears its own legal fees and expenses unless otherwise provided by statute." Porter Dev., LLC v. First Nat. Bank of Valparaiso, 866 N.E.2d 775, 779 (Ind.2007). But the APRA "explicitly provides for a variation from this general rule and thus modifies the common law as to attorney fees incurred in ... actions that fall within the statute.” Id.

      . The portion of the trial court's ruling related to the apportionment of attorney's fees is as follows:
      The Court agrees with the defendant that neither defendant has displayed bad faith. ShepCo’s and Warren’s opposition to the release of the records was reasonably based on PAC opinions. Moreover, in response to this Court’s ruling on the Motion for Summary Judgment, ShepCo has stated that it fully cooperated with the release of the certified payrolls. The Court has no reason to doubt that statement and notes that Warren has expressed a similar intent to comply with this Court’s Ruling of May 27.
      Nor are the defendants distinguishable in terms of the nature of their participation in the instant controversy. While Warren, as public agency, officially refused IUPAT’s request for certified payroll records, it was prodded to do so by ShepCo, which warned that it would sue the school corporation if IUPAT was given access to the records. ShepCo was initially not named as a party. Instead, it was joined as a result of its own Petition to Intervene.
      Unlike the Lottery Commission in Indianapolis Newspapers ..., Warren took a partisan position in this litigation. It did not deposit the disputed records with the Court and explicitly supported ShepCo’s legal positions on the Motion for Judgment on the Pleadings and Motion for Summary Judgment. Having taken up the cause of Shep-Co, it is equitable that Warren now share ShepCo’s liability for attorney fees. In sum, the facts of this case justify that the defendants be treated the same.

      . ShepCo does not challenge the amount of attorney’s fees the trial court awarded. Regardless, we do not see any error in the trial court’s computations.


source: Caselaw Access Project

author: SULLIVAN, Justice. DICKSON, C.J., MASSA, J.,

license: Public Domain

text:
    Anthony H. DYE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 20S04-1201-CR-5.
    Supreme Court of Indiana.
    July 31, 2012.

      Kenneth R. Martin, Goshen, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Michael Gene Wor-den, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   SULLIVAN, Justice.

Anthony Dye was convicted of unlawful possession of a firearm by a serious violent felon (“SVF”) and found to be a habitual offender. We hold that this constituted an impermissible double enhancement and therefore vacate the habitual-offender enhancement. We affirm his conviction of unlawful possession of a firearm by an SVF and his sentence for that offense.

Background

Anthony H. Dye’s conviction in the present case arose out of the same underlying facts as Coleman v. State, 946 N.E.2d 1160 (Ind.2011). On March 18, 2007, Dye received a frantic phone call from his 20-year-old son, Jermaine Jackson, indicating that a person who allegedly had robbed Dye several months beforehand was at Tyrus Coleman’s music studio. Dye headed toward Coleman’s music studio armed with a 9mm Glock pistol he apparently had obtained after being robbed. Meanwhile, tensions escalated at the studio when Jermaine, who was armed, attempted to force his way into the studio; Coleman armed himself and began pacing in front of his studio after his efforts at calming Jermaine failed. A few minutes later, Dye entered Coleman’s yard with his pistol at his side and walked over to where Jermaine and Coleman were standing. As Dye approached, Coleman shot him twice. At that point, Jermaine pointed his handgun at Coleman, and when Coleman turned and saw this he shot Jermaine. Dye survived his injuries; Jermaine did not.

On May 1, 2007, the State charged Dye in Elkhart Superior Court with one count of unlawful possession of a firearm by a serious violent felon (“SVF”), Ind.Code § 35-47-4-5(c) (2008). The SVF statute makes it a Class B felony for a person who previously has been convicted of an enumerated “serious violent felony” to possess a firearm. Id. § 35-47-4-5(b) & (c). To prove Dye’s SVF status, the State used a 1998 conviction for attempted battery with a deadly weapon. See id. § 35-474-5(a)(2) & (b)(4)(C). The State also sought to have Dye’s sentence enhanced under the habitual offender statute, which provides that the sentence of a person convicted of a felony can be enhanced by up to 30 years if he or she previously has been convicted of two unrelated felonies. Id. § 35-50-2-8. And to prove Dye’s habitual-offender status, the State used a 1998 conviction for possession of a handgun within 1,000 feet of a school and a 1993 conviction for forgery. See id. § 35-50-2-8(c).

Dye pled guilty to unlawful possession of a firearm by an SVF. At the same time, he filed a motion to dismiss the habitual-offender allegation, contending that enhancing his sentence under the habitual offender statute would constitute an impermissible “double enhancement.” The trial court denied the motion and scheduled a jury trial on the habitual-offender allegation.

On October 5, 2010, Dye’s two-day jury trial commenced. During voir dire, Dye raised an objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State’s peremptory strike of a prospective juror, which the trial court denied. Later, the trial court denied Dye’s motion for a mistrial, which he had requested after certain evidence had been presented. The jury found that Dye was a habitual offender. The trial court sentenced him to the maximum 20 years’ imprisonment on the SVF conviction, enhanced by 30 years due to his status as a habitual offender. The court suspended 15 years to probation, for an executed term of 35 years.

Dye raised four issues on appeal, all of which were rejected by the Court of Appeals in a 2-1 opinion. Dye v. State, 956 N.E.2d 1165 (Ind.Ct.App.2011). First, the court held that the double enhancement was permissible. Id. at 1169-70. Second, it rejected Dye’s Batson challenge on grounds that he had not made a prima facie showing of discrimination and, in any event, that the State had offered a sufficient race-neutral reason. Id. at 1170-71. Third, it held that he had waived review of his claim that the trial court erred in denying his motion for a mistrial. Id. at 1171-72. Lastly, the court held that Dye’s 50-year sentence with 15 years suspended was appropriate. Id. at 1172-73. Judge May dissented, agreeing with Dye that he had been subject to an impermissible double enhancement. Id. at 1173-76 (May, J., dissenting).

Dye sought, and we granted, transfer, Dye v. State, 963 N.E.2d 1115 (Ind.2012) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

I

Dye maintains that tacking the habitual-offender enhancement on to the sentence for unlawful possession of a firearm by an SVF constitutes an impermissible double enhancement. This case is yet another chapter in the ongoing dialogue among this Court, the Court of Appeals, and the Legislature concerning multiple sentencing enhancements for recidivist offenders. A brief review of this dialogue is helpful in resolving Dye’s claim.

It has long been established that double enhancements are not permissible unless there is explicit legislative direction authorizing them. E.g., Beldon v. State, 926 N.E.2d 480, 483-84 (Ind.2010); Breaston v. State, 907 N.E.2d 992, 995 (Ind.2009); Mills v. State, 868 N.E.2d 446, 449 (Ind.2007); State v. Downey, 770 N.E.2d 794, 796 (Ind.2002); Ross v. State, 729 N.E.2d 113, 116-17 (Ind.2000), adopted by statute, Pub. L. No. 166-2001, § 3, 2001 Ind. Acts 1074, 1077 (codified as amended at Ind.Code § 35-50-2-8(b)(l) (2008)); Freeman v. State, 658 N.E.2d 68, 70-71 (Ind.1995), superseded, Pub. L. No. 96-1996, § 8, 1996 Ind. Acts 1725, 1731 (codified as amended at Ind.Code § 35-50-2-10 (2008)); Devore v. State, 657 N.E.2d 740, 742 (Ind.1995), superseded, Pub. L. No. 96-1996, § 8, 1996 Ind. Acts 1725, 1731 (codified as amended at Ind.Code § 35-50-2-10 (2008)); Stanek v. State, 603 N.E.2d 152, 153-54 (Ind.1992). But double enhancements are permissible when there is explicit legislative direction authorizing them. See, e.g., Beldon, 926 N.E.2d at 483-84; Downey, 770 N.E.2d at 798. Whether a particular double enhancement is permissible, therefore, is a matter of statutory interpretation. E.g., Nicoson v. State, 938 N.E.2d 660, 663 (Ind.2010).

There are three types of statutes authorizing enhanced sentences for recidivist offenders: the general habitual offender statute, specialized habitual offender statutes, and progressive-penalty statutes. Downey, 770 N.E.2d at 795-96. The general habitual offender statute, Ind.Code § 35-50-2-8 (2008), authorizes a sentencing enhancement of up to 30 years where the defendant has been convicted of three “unrelated” felonies. Downey, 770 N.E.2d at 795. Specialized habitual offender statutes authorize sentencing enhancements where the defendant has been convicted of a certain number of similar offenses. Id. at 795-96; see, e.g., Ind.Code § 35-50-2-10 (2008) (habitual substance offenders); id. § 35-50-2-14 (repeat sex offenders); Ind.Code § 9-30-10^1 (2010) (habitual traffic violators). And progressive-penalty statutes, which are the most specialized, elevate the level of an offense (with a correspondingly enhanced sentence) where the defendant previously has been convicted of a particular offense. Downey, 770 N.E.2d at 796; see, e.g., Ind.Code § 35-48-4-11 (2008) (misdemeanor possession of marijuana elevated to felony if defendant has prior marijuana conviction); id. § 35-47-2-23(c)(2) (misdemeanor carrying handgun without a license elevated to felony if defendant has specific prior convictions); Ind.Code §§ 9-30-10-16 & -17 (2010) (Class D felony driving while privileges are suspended elevated to Class C felony if defendant has prior conviction for driving while suspended); id. §§ 9-30-5-2 & -3 (misdemeanor OWI elevated to felony if defendant has prior OWI conviction). Double-enhancement issues arise where more than one of these statutes is applied to the defendant at the same time. See, e.g., Downey, 770 N.E.2d at 795-98.

The general rule is that, “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.” Id. at 796 (emphasis in original). Compare Ross, 729 N.E.2d at 115-17 (holding that defendant’s sentence for carrying a handgun without a license could not be enhanced under the general habitual offender statute because the conviction had already been elevated from a misdemeanor to a felony on the basis of defendant’s prior conviction), with Beldon, 926 N.E.2d at 483-84 (holding that defendant’s conviction for felony OWI, which was elevated to a felony due to a prior OWI conviction, could be further enhanced under the habitual substance offender statute because that statute included the requisite explicit legislative direction). Similarly, a conviction under a specialized habitual offender statute cannot be further enhanced under the general habitual offender statute in the absence of explicit legislative direction. See Stanek, 603 N.E.2d at 153-54 (holding that defendant’s sentence for operating a vehicle after privileges had been suspended for life could not have his sentence enhanced under the general habitual offender statute because his conviction had already been enhanced to a felony on the basis of his prior driving-while-suspended convictions).

In applying the general rule against double enhancements, we look first to determine whether the defendant’s underlying conviction is pursuant to a progressive-penalty scheme or a specialized habitual-offender scheme. E.g., Ross, 729 N.E.2d at 116; Stcmek, 603 N.E.2d at 153-54. If not, then there is no double-enhancement problem. Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996). But if so, then the general rule against double enhancements is triggered and we will invalidate a double enhancement unless the language of the relevant statute possesses the requisite “explicit legislative direction” to impose a double enhancement. Beldon, 926 N.E.2d at 483-84; Downey, 770 N.E.2d at 798; Ross, 729 N.E.2d at 116; Stanek, 603 N.E.2d at 153-54.

Applying this analysis here, Dye’s habitual-offender enhancement violated the rule against double enhancements. First, the SVF statute under which Dye was convicted is a progressive-penalty statute. Mills, 868 N.E.2d at 449 ; Conrad v. State, 747 N.E.2d 575, 594 (Ind.Ct.App.2001), trans. denied; see also Beldon, 926 N.E.2d at 483 (“In Mills, the initial charge had been elevated using a progressive penalty statute.” (citation omitted)).

Second, the general habitual offender statute does not include explicit legislative direction indicating that a double enhancement is proper here. Mills held that the general rule against double enhancements remains intact and that a double enhancement is improper where the underlying conviction is for unlawful possession of a firearm by an SVF. 868 N.E.2d at 452; see also Beldon, 926 N.E.2d at 484 (“Mills made clear that ‘the general rule against double enhancements “absent explicit legislative direction” ’ remains intact. As the Legislature had provided no such direction to the contrary, the underlying elevated conviction in that case could not be further enhanced by the general habitual offender statute.” (internal citation omitted)).

We conclude that the trial court erred in denying Dye’s motion to dismiss the habitual-offender allegation. We thus vacate the 30-year enhancement that the trial court imposed under the general habitual offender statute.

II

Dye also claims that the trial court erred in denying his Batson challenge. But, because he pled guilty to unlawful possession of a firearm by an SVF and because the only issue tried to the jury was the habitual-offender allegation, our conclusion that he was subject to an impermissible double enhancement renders his Batson claim moot. Similarly, his claim that the trial court erred in denying his motion for a mistrial is also moot. The opinion of the Court of Appeals on these issues is vacated. App. R. 58(A).

III

Not content with having his sentence reduced by 30 years, Dye contends that the statutory maximum 20-year sentence that the trial court imposed for his underlying conviction is inappropriate. The Court of Appeals held that Dye’s original sentence of 35 years executed with 15 years of probation was appropriate in light of the nature of the crime and Dye’s character. Dye, 956 N.E.2d at 1172-73. We summarily affirm the decision of the Court of Appeals insofar as it holds that an executed term of 20 years’ imprisonment is appropriate. App. R. 58(A)(2).

Conclusion

We vacate Dye’s habitual-offender enhancement. We also summarily affirm the decision of the Court of Appeals that an executed term of 20 years’ imprisonment is not inappropriate. We remand to the trial court with instructions to enter an order sentencing Dye to an executed term of 20 years.

RUCKER and DAVID, JJ., concur.

DICKSON, C.J.,

concurs, noting that, notwithstanding Justice MASSA’S informative and persuasive dissent, I prefer to adhere to our existing controlling precedent of Mills v. State, 868 N.E.2d 446 (Ind.2007), to which the Legislature has not responded with any contrary explicit legislative direction.

MASSA, J., dissents with separate opinion.

MASSA, J.,

dissenting.

As I read it, the serious violent felon statute is not a progressive penalty statute and therefore is not subject to the general prohibition against double enhancement. Even assuming it was, though, I believe Indiana’s General Assembly has provided sufficient guidance that a habitual offender sentencing enhancement is permissible.

These reasons are explained in greater detail below, and lead me to respectfully dissent.

I. The Serious Violent Felon Statute Is Not a Progressive Penalty Statute

First, I disagree with this Court’s prior determination that Indiana Code § 35-47-4-5 (the “SVF statute”), which makes it a B felony for a serious violent felon to knowingly or intentionally possess a firearm, is a progressive penalty statute. Mills v. State, 868 N.E.2d 446, 449-50 (Ind.2007). Progressive penalty statutes are those where “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.” State v. Downey, 770 N.E.2d 794, 796 (Ind.2002). In my view, the SVF statute does no such thing.

It is true that there is a different statute, Indiana Code § 35-47-2-23 (the “handgun statute”), which is a progressive penalty statute. That provision establishes criminal penalties for persons who violate the laws regulating the carrying of handguns and elevates those penalties from misdemeanor to felony status under certain conditions, including when the offender has a prior conviction under those handgun regulations or has been convicted of any felony within the preceding fifteen years. Ind.Code § 35-47-2-23(c)(2), (d). A conviction that is enhanced through the operation of the handgun statute, this Court has said, may not be the basis for additional enhancement under the general habitual offender statute. See Ross v. State, 729 N.E.2d 113, 116 (Ind.2000).

In contrast, the SVF statute says “[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony.” Ind. Code § 35-47-4-5(c). It therefore has only two elements: that the offender was a serious violent felon, and that the offender knowingly or intentionally possessed a firearm. Most significantly, it contains only one penalty range: a B felony. There is no entry-level misdemeanor charge that is elevated to a felony by the prior status. Thus, the Ross rationale, that the “more detailed and specific” nature of the handgun provision trumps the general nature of the habitual offender statute, Ross, 729 N.E.2d at 116-17, is no more applicable to the SVF statute than it is to the statutes governing crimes like murder, robbery, or rape — all of which are routinely used as predicate offenses supporting a habitual offender sentence.

Notwithstanding this clear distinction, in Conrad v. State, 747 N.E.2d 575 (Ind.Ct.App.2001), trans. denied, the Court of Appeals was asked to extend the rationale of Ross to the SVF statute. The court compared the handgun statute to the SVF statute, noted the differences between the two, but nevertheless decided it would violate the Rule of Lenity to forbid habitual offender enhancement under the first statute but not the second. Id. at 594-95. Even though there was no “enhancing” aspect to the SVF statute, the Conrad panel said, “the defendant’s serious violent status does realistically serve as an ‘enhancement’ in that it increases the potential punishment for ‘possession of a firearm’ from nothing at all to six to twenty years imprisonment and a fine of up to $10,000, the sentencing range for a class B felony.” Id. at 594. In essence, Conrad found an enhancement in that the SVF statute “enhances” from non-crime to crime — in my opinion, a feature that is common to all criminal statutes.

With no further analysis, this Court agreed with Conrad. Mills, 868 N.E.2d at 449.

I would point, though, to a different opinion of the Court of Appeals. In Lewis v. State, 769 N.E.2d 243 (Ind.Ct.App.2002), reh’g granted, 774 N.E.2d 941 (Ind.Ct.App.2002), trans. denied, addressing a similar appeal, the court compared the handgun statute to the SVF statute and said this:

We acknowledge the practical effect of the handgun statutes, all of which have at their core the possession of a handgun as the criminal act. Possession of a handgun may be no crime at all if the defendant can prove that he has a license to carry it. In the absence of a license, possessing a handgun can be a Class A misdemeanor. If the defendant has a previous conviction for a handgun offense, a previous felony conviction, or carried the handgun under certain circumstances, the crime is elevated to a Class C felony. And if the previous felony has been designated a “serious violent felony,” the crime is a Class B felony. Thus, in practical application, the handgun statutes do collectively impose increasingly severe punishments.
The organization of the statutes, however, leads us to believe that the two handgun statutes are separate and distinct schemes. The general handgun statute could have been amended to include the unlawful possession by a SVF provisions as a further step in its already progressive punishment scheme, but instead, the unlawful possession by a SVF statute stands alone. The general handgun statute prohibits only the possession of handguns, which, as we have noted, is a subset of the more general class of “firearms” to which the unlawful possession by a SVF statute applies. And the general handgun statute imposes a fifteen-year time limitation on the use of a previous felony conviction (other than for a handgun offense), whereas there is no time limitation on use of a previous felony to classify a defendant as a serious violent felon for purposes of the unlawful possession by a SVF statute. A prior felony conviction more than fifteen years old could not support a felony charge for carrying a handgun but could nonetheless classify the defendant as a serious violent felon.

Id. at 248 — 49 (internal citations omitted); accord Hatchett v. State, 740 N.E.2d 920, 923 n. 3 (Ind.Ct.App.2001) (“Indiana Code Section 35-47-2-1 prohibits citizens at large from carrying handguns in public without a license, whereas the SVF statute prohibits serious violent felons from possessing firearms of any kind at any time.... Thus, we conclude that the SVF statute defines a crime separate and distinct from carrying a handgun without a license and cannot be considered an enhancement thereof’), trans. denied; see also Dye v. State, 956 N.E.2d 1165, 1175 (Ind.Ct.App.2011) (May, J., dissenting) (“While Dye’s SVF count was not based on a ‘progressive penalty statute’....”).

I could not agree more. The statutes draw temporal distinctions (a non-handgun related serious violent felony more than fifteen years old would have no impact under the handgun statute, whereas it would still qualify under the SVF statute); geographic distinctions (the handgun statute expressly elevates the charge when the offense occurs near schools, whereas the SVF statute does no such thing); and distinctions between predicate felonies (the handgun statute applies to any felonies, whereas the SVF statute applies only to those felonies specifically enumerated). Also, as the Lewis court noted, the SVF statute is drafted to apply to the entire realm of firearms, whereas the handgun statute is specifically aimed only at a subset of that class.

Furthermore, I also point to the habitual offender statute. Subsection (b) of that statute prohibits habitual offender sentencing for felonies where “the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person has a prior unrelated conviction.” Ind.Code § 35-50-2-8(b)(l). We have said that this is a codification of our general rule prohibiting double enhancement of progressive penalty statutes. Mills, 868 N.E.2d at 451; see also Townsend v. State, 793 N.E.2d 1092, 1096 (Ind.Ct.App.2003).

Plainly, the SVF statute does not fit our legislature’s definition of a progressive penalty statute. The SVF statute is not a misdemeanor enhanced to a felony in the same proceeding solely because the person has a prior unrelated conviction. It is a felony from start to finish.

Yet the Mills adoption of the Conrad analysis sweeps away all these clear legislative lines in favor of a simplified view of how the statutes operate; a view that may sometimes be accidentally correct in application, but will other times lead to absurd results that are clearly antithetical to the General Assembly’s intent in crafting these separate provisions.

For example, imagine if Dye went to Coleman’s studio armed not with a handgun, but with a shotgun or rifle. Dye could have literally dozens of prior felony convictions, but the prosecutor would be unable to charge him under the SVF statute and seek a habitual offender enhancement because of this Court’s blanket analogy of the stand-alone SVF statute to the operation of the handgun statute. And this would be the case even though Dye was guilty of absolutely no crime under the handgun statute.

As another example, imagine if Dye went to Coleman’s studio still armed with his handgun and with the same three prior felony convictions. But in this instance, imagine if all three prior felonies occurred in 1990 rather than in 1993 and 1998. Again, no prosecutor in this state would be able to charge Dye under the SVF statute and seek a habitual offender enhancement — even though none of those prior felonies could enhance his sentence under the handgun statute.

Finally, imagine that instead of Dye going to Coleman’s studio, Coleman went to Dye’s home. Dye has his handgun and his record reflects the 1993 and 1998 prior felonies. Once again, he would be free and clear of habitual offender enhancement to his SVF charge because, even though his felonies could theoretically enhance a charge under the handgun statute, he is under no obligation to have a handgun license when carrying on his own property and therefore committed no crime under the handgun statute.

These situations cannot be what our General Assembly envisioned when it drafted these statutes, but they are very real possibilities because this Court has mistakenly labeled the SVF statute as a “progressive penalty statute.”

II. Explicit Legislative Direction Exists

Under our 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.” Op. at 857 (quoting Downey, 770 N.E.2d at 796). The majority points to Mills as holding that such legislative direction is absent in cases involving convictions under the SVF statute.

But even if we accept that there remains a class of statutes — at this point containing only the SVF statute — that are “judicially defined progressive penalty statutes,” and that fall under the general rule prohibiting double enhancement even though they are not misdemeanors elevated to felonies, I struggle with the Mills determination that the habitual offender statute does not provide sufficiently explicit legislative direction to permit enhancement of those statutes under its provisions. Because of this, I dissent.

Cases analyzing the interplay between progressive penalty statutes and the general and specialized habitual offender statutes mention a “dialogue” between the courts and the General Assembly. See Mills, 868 N.E.2d at 448; Downey, 770 N.E.2d at 795. I think this is probably a correct way of expressing how courts and legislatures interact, but at this point in the dialogue the General Assembly might fairly ask if we’re listening.

In Mills, this Court noted that the general habitual offender statute was amended in 2001 as part of this ongoing back- and-forth, and highlighted two significant changes. Mills, 868 N.E.2d at 450-52. First, subsection (a) now began “Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging ... that the person has accumulated two (2) prior unrelated felony convictions.” Id. at 450 (emphasis added). Second, subsection (b) was added to the statute to enumerate the instances in which a habitual offender enhancement was not permissible. Id. at 450-51. Within subsection (b), the legislature exempted offenses that fall under our rule against double enhancement, Ind.Code § 35-50-2-8(b)(l), offenses which would otherwise be treated under the habitual traffic violator statute, Ind.Code § 35-50-2 — 8(b)(2), and offenses that would be treated under the habitual substance offender statute. Ind.Code § 35-50-2-8(b)(3).

But Mills said this was not sufficient. It acknowledged that the 2001 amendment was a legislative response to this Court’s jurisprudence regarding double enhancement. Mills, 868 N.E.2d at 451-52. And it acknowledged that the legislature could have codified the general rule without adding the “except as otherwise provided” language of subsection (a). Id. at 452. But it then went on to effectively read that clause out of the statute by saying “the ‘except as otherwise provided’ language signals the Legislature’s intent to create exceptions to the statutory rule of subsection (a) but does not preclude continued judicial application of the general rule against double enhancements absent explicit legislative direction.” Id.

In contrast, an example of sufficient legislative direction is found in Downey, where this Court was faced with a defendant whose misdemeanor marijuana possession charge was increased to a D felony as a result of a prior marijuana conviction. Downey, 770 N.E.2d at 794-95. The prosecutor also charged him with being a habitual substance offender under Indiana Code § 35-50-2-10. Id. Absent explicit legislative direction, this would be impermissible under our general rule. Id. at 798.

However, this Court found such explicit legislative direction because the habitual substance offender statute allowed “a habitual substance offender enhancement to be imposed on a person convicted of three unrelated ‘substance offense[s],’ ” Id. (quoting Ind.Code § 35-50-2-10), and defined “substance offense” as including “a Class A misdemeanor or a felony in which the possession ... of ... drugs is a material element of the crime.” Id. (quoting Ind.Code § 35-50-2-10(a)(2)). Therefore, “[b]y its specific inclusion of drug possession misdemeanors and felonies in the category of offenses that are subject to habitual substance offender enhancement,” the Court found “the Legislature intended to authorize such an enhancement notwithstanding the existence of the drug possession progressive penalty statute.” Id.

So what should we require as sufficient legislative direction for the general habitual offender statute? As Downey explained, in the habitual substance offender statute the General Assembly specifically listed the offenses which would serve as predicate crimes. The legislature also did this with the habitual traffic violator statute and the repeat sexual offender statute. See Ind.Code §§ 9-30-l(M(a)-(c), 35-50-2-14(a). But those are “specialized habitual offender statutes,” that apply to “certain closely related offenses.” Downey, 770 N.E.2d at 795-96. We deal here with the broader and more general habitual offender statute.

As I read it, subsection (a) of the habitual offender statute says, in effect, that a habitual offender enhancement to a felony charge may be sought anytime the defendant has two prior unrelated felony convictions — unless a separate subsection of the statute prohibits it. Subsection (b) then articulates the three instances in which the habitual offender enhancement is prohibited. In essence, it tells prosecutors and courts: “You may do this, except where we say you cannot. And here are the times we say you cannot.”

I think this was the most reasonable approach for the General Assembly to take while still responding to Ross ⅛ articulation of our general rule, and I am not sure what else it could have done. Given the broad and general scope of the habitual offender statute, the starting presumption would be that it applies to all felonies; it was far easier to list those felonies to which it does not apply than to attempt to draft a list enumerating all of the ones to which it does apply (particularly if this Court continues to expand its class of judicially created progressive penalty statutes). The statute already prohibits habitual offender enhancement of misdemeanors that are elevated to felonies because of prior felony convictions in accordance with our jurisprudence — is the Court also requiring the General Assembly to comb the criminal code for standalone felonies that we might later judicially define as de facto progressive penalty statutes? This seems needlessly demanding.

The courts of this state communicated to the General Assembly what was, and was not, permissible with respect to double enhancements. Several times, the General Assembly has responded. I believe their 2001 response amending the habitual offender statute shows first that the SVF statute is not a progressive penalty statute, and second that, even if the SVF statute were still subject to the general rule against double enhancement, there is explicit legislative direction permitting an adjudicated serious violent felon to be subject to additional enhancement under the general habitual offender statute.

Accordingly, I dissent.

      . Tyrus Coleman was acquitted of murder with respect to Jermaine Jackson, and, after a second trial, we affirmed his conviction for attempted murder with respect to Dye. Coleman, 946 N.E.2d at 1163-64, 1171.

      . While Mills analyzes in some detail the predicate offenses supporting the defendant’s statuses as an SVF and a habitual offender, 868 N.E.2d at 450, 452, that analysis was unnecessary. The holdings in Mills that the general rule against double enhancements remains intact, id. at 452, and that a sentence under the SVF statute (a progressive-penalty statute) could not be further enhanced under the general habitual offender statute, id. at 449-50, 452, were sufficient to dispose of the claims in that case.

      . Nor is it unique to enhance from crime to non-crime based solely on the "status” of the offender. For example, Indiana's age of consent is sixteen. However, if a person is classified under a number of particular statuses, such as “child care worker,” Indiana Code § 35-42-4-7 makes it a class D felony to have any sexual relationship with a sixteen — or seventeen-year-old who might, say, attend that child care worker’s school. To paraphrase Conrad, it increases the potential punishment for ‘legal consensual sex’ from nothing at all to six months to three years imprisonment and a fine of up to $10,000. And yet I doubt this Court would label the child seduction statute a "progressive penalty statute.”

      . Why this particular distinction? This Court has said that "[t]he Legislature has the power, in the interest of public safety and welfare, to provide reasonable regulations for the use of firearms which may be readily concealed, such as pistols.” Matthews v. State, 237 Ind. 677, 686, 148 N.E.2d 334, 338 (1958) (analyzing the Firearms Act and its purpose "to achieve a maximum degree of control over criminal and careless uses of certain types of firearms ” (emphasis added)). Whether this is correct — that handguns are a particular danger because of the ease of concealment — or because other types of firearms like shotguns and rifles may be more a part of common Hoosier heritage and thus less regulated is probably a topic for intense debate. What is clear, however, is that the General Assembly expressly prohibited any serious violent felon from knowingly or intentionally possessing any firearm.

      . In full, "substance offense" is defined as "a Class A misdemeanor or a felony in which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime. The term includes an offense under IC 9-30-5 and an offense under IC 9-11-2 (before its repeal).” Ind.Code § 35-50-2-10(a)(2).

      . The Court also noted that the habitual substance offender statute had been amended in 1996 in response to decisions in Freeman v. State, 658 N.E.2d 68 (Ind.1995) and Devore v. State, 657 N.E.2d 740 (Ind.1995). See Beldon v. State, 926 N.E.2d 480, 484; Downey, 770 N.E.2d at 797. The 1996 amendment expressly permitted enhancement under the habitual substance offender statute where the predicate offense was an OWI conviction made under a progressive penalty statute. Id.; see also Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996).