Tobias Seth Watkins, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Tobias Seth Watkins (“Watkins”) was convicted of Level 6 felony unlawful entry by a serious sex offender ¹ and Level 5 felony failure to register as a sex or violent offender with a prior conviction for failing to register.² He was also adjudicated a habitual offender,³ where one predicate offense was the same 2008 conviction used to establish his status as a sex or violent offender. Watkins argues, and the State agrees, that the same conviction could not be used for both purposes. Adhering to binding precedent—namely, Mills v. State, 868 N.E.2d 446 (Ind. 2007), and Dexter v. State, 959 N.E.2d 235 (Ind. 2012)—we vacate the habitual offender enhancement and remand for resentencing. Moreover, consistent with Dexter and as explained herein, we direct that, on remand, the State may retry its allegation that Watkins is a habitual offender.

Facts and Procedural History

[2] On May 19, 2025, the State charged Watkins with Count I, unlawful entry by a serious sex offender, a Level 6 felony; Count II, failure to register as a sex or violent offender, a Level 6 felony; and Count III, failure to register as a sex or violent offender with a prior conviction for failing to register, a Level 5 felony. The State also alleged that Watkins was a habitual offender based on two prior unrelated felony convictions: an August 2008 conviction for sexual misconduct with a minor, a Class B felony, and an April 2020 conviction for theft, a Level 6 felony. Watkins waived his right to a jury trial.

[3] The parties convened for a bench trial on December 8, 2025. At the outset, Watkins elected to plead guilty to Counts I, II, and III. Watkins admitted to having a prior conviction of sexual misconduct with a minor, a Class B felony, which was his 2008 conviction. He further admitted that, as a result of that conviction, he had the status of being both a serious sex offender and a sex or violent offender, which meant he was required to register under Indiana law.

[4] As to Count I, Watkins admitted that on May 6, 2025, he entered the grounds of Linwood Elementary School in Tippecanoe County while under a legal duty, as a serious sex offender, not to do so. As to Counts II and III, he admitted that he did not register within seven days of his release from custody on the school-entry arrest, as required, and that he had a 2013 conviction for failure to register, a Class D felony, which elevated the offense to a Level 5 felony. The trial court accepted the plea, entered judgment of conviction on Counts I and III, and merged Count II into Count III as a lesser-included offense.

[5] Before the habitual offender phase of trial began, Watkins orally moved to dismiss the habitual offender information. Citing Mills, Watkins argued that the State could not use his 2008 conviction for sexual misconduct with a minor both to establish his status as a sex or violent offender with a duty to register under Count III and as one of the two prior unrelated felonies to support the habitual offender enhancement. Watkins noted: “I believe there's going to be insufficient evidence of two prior unrelated convictions[,] as sexual misconduct with a minor is being used twice.” Tr. Vol. II p. 19. He stated that the court was “free to take that under advisement.” Id. at 20. The State requested the opportunity to brief the issue. The trial court directed the parties to file briefs on the double-use question by midday on December 19, 2025, then conducted a bench trial on the State's allegation that Watkins was a habitual offender.

[6] The State presented the testimony of Tippecanoe County Sheriff's Office Special Deputy Kasey Dulin (“Deputy Dulin”), who oversees the county's sex offender registry. Deputy Dulin testified that Watkins was required to register because of his 2008 conviction for sexual misconduct with a minor. The State also introduced certified copies of Watkins's 2008 conviction for sexual misconduct with a minor, a Class B felony, and his 2020 conviction for theft, a Level 6 felony, along with certified copies of his BMV record. The trial court took the matter under advisement, awaiting the parties’ briefs. After briefing, the trial court entered a written order on December 19, 2025, finding Watkins to be a habitual offender based on the 2008 sexual misconduct conviction and the 2020 theft conviction. The court entered judgment on the enhancement.

[7] The trial court held a sentencing hearing on January 13, 2026, and sentenced Watkins to two years on Count I and four years on Count III, with a three-year enhancement on Count III for the habitual offender finding. The sentences were to run concurrently, for an aggregate term of seven years, with five years executed and two years suspended to probation. Watkins now appeals.

Discussion and Decision

[8] Watkins argues—and the State agrees—that the State was not permitted to use his 2008 conviction for sexual misconduct with a minor both to (1) establish an element of his failure-to-register offense under Count III and (2) serve as a predicate for the habitual offender enhancement, and that the enhancement must therefore be reversed for insufficient evidence. We agree with the parties that, under Mills and its progeny, the dual use of the conviction was improper. See Mills, 868 N.E.2d at 452 (explaining that a defendant convicted of unlawful possession of a firearm by a serious violent felon “may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon’ ”).

[9] When a general habitual offender enhancement rests on the impermissible reuse of a prior conviction, the proper remedy is to vacate the enhancement. See Dye v. State, 972 N.E.2d 853, 855 (Ind. 2012) (vacating the enhancement involving “an impermissible double enhancement”), aff'd on reh'g, 984 N.E.2d 625 (Ind. 2013). Furthermore, recognizing that a trial court may take a holistic approach to sentencing, it is proper to remand for resentencing when a conviction is vacated on appeal. Cf. Washington v. State, 807 N.E.2d 793, 797 (Ind. Ct. App. 2004). We therefore vacate the enhancement and remand for resentencing.

[10] We turn to the parties’ sole point of disagreement, which is whether the State may retry the habitual offender allegation on remand or whether retrial is barred. Watkins asks us to bar retrial under the Double Jeopardy Clause of the United States Constitution. Whether the Double Jeopardy Clause bars retrial is a question of law that we review de novo. E.g., Gaunt v. State, 209 N.E.3d 463, 465 (Ind. Ct. App. 2023), trans. denied.

[11] As a general rule, “[t]he Double Jeopardy Clause of the United States Constitution bars retrial in cases of reversal for insufficient evidence.” Vest v. State, 621 N.E.2d 1094, 1096–97 (Ind. 1993) (citing Burks v. United States, 437 U.S. 1, 16–18 (1978)). However, in Jaramillo v. State, the Indiana Supreme Court recognized an exception for habitual offender allegations, concluding that even where the State fails to prove the required number of prior convictions, on remand, the State may seek retrial of the habitual offender allegation. 823 N.E.2d 1187, 1189–91 (Ind. 2005) (interpreting and applying Monge v. California, 524 U.S. 721 (1998)). The Court applied this principle in Dexter, where it reversed a habitual offender enhancement for insufficient evidence, remanded for resentencing, and specified that “[t]he State may retry [the defendant] on the habitual-offender enhancement.” 959 N.E.2d at 240. In doing so, the Court declined “to revisit [its] holding in Jaramillo” and stated that “retrial on a sentencing enhancement based on a prior conviction is permitted even where the enhancement is reversed because of insufficient evidence.” Id.

[12] Watkins directs us to Hulbert v. State, where this court asked the Indiana Supreme Court to “revisit its holding in Dexter.” 274 N.E.3d 1038, 1040 (Ind. Ct. App. 2026), trans. denied. He asks that we bar retrial on the enhancement as suggested in Hulbert. Nevertheless, he asks, “alternatively, that the finding be reversed and remanded for a new trial.” Appellant's Br. p. 12. Dexter is binding, and controls here. See Hulbert, 274 N.E.3d at 1040 (criticizing Dexter while instructing the trial court “to allow the State to retry the habitual-offender allegation if it so chooses”). For the foregoing reasons, we conclude that, on remand, the State may retry its allegation that Watkins is a habitual offender.⁴

Conclusion

[13] Because the same conviction could not be used both to establish an element of Count III and to support the habitual offender enhancement, we vacate the enhancement and remand for resentencing. On remand, the State may retry its allegation that Watkins is a habitual offender.

[14] Vacated and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-4-14(b) (2020).

2.   I.C. § 11-8-8-17(a)(1), (b) (2020).

3.   I.C. § 35-50-2-8 (2023).

4.   The State represents on appeal that Watkins has other prior felony convictions that could support a habitual offender adjudication. Appellee's Br. pp. 11–12. We express no opinion regarding the amendment of the habitual offender information.

Foley, Judge.

Vaidik, J., and Altice, J., concur.