FILED
Aug 31 2026, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Wayne T. Kelly,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
August 31, 2026
Court of Appeals Case No.
26A-CR-665
Appeal from the Lake Superior Court
The Honorable Samuel L. Cappas, Judge
Trial Court Cause No.
45G04-2111-F4-205
Opinion by Chief Judge Tavitas
Judges Bradford and Felix concur.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 1 of 17
Tavitas, Chief Judge.
Case Summary
[1] Following a bench trial, Wayne Kelly was convicted of unlawful possession of
a firearm by a serious violent felon, a Level 4 felony, and resisting law
enforcement, a Level 6 felony. On appeal, Kelly claims that the evidence is
insufficient to support his conviction for unlawful possession of a firearm by a
serious violent felon. We agree and, accordingly, reverse and remand.
Issue
[2] Kelly presents two issues, one of which we find dispositive and restate as:
whether the State presented sufficient evidence to prove that Kelly was a serious
violent felon.1
Facts
[3] On November 1, 2021, Indiana State Police Trooper Elias Espinoza was
patrolling on Interstate 65 in Lake County when he observed a black Chevrolet
Camaro approach his vehicle from behind and pass him at a high speed.
Trooper Espinoza activated his emergency lights and pulled the Camaro over.
When he approached the car, Trooper Espinoza saw three people inside: Kelly,
who was the driver, Lauren Taylor, who was seated in the front passenger seat,
1
Because we conclude that there was insufficient evidence to prove that Kelly was a serious violent felon, we
need not address his argument that there was also insufficient evidence to prove that he actually or
constructively possessed a firearm.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 2 of 17
and Terrel Holt, who was in the back seat. Kelly admitted that he was
speeding, but when asked for his driver’s license, Kelly stated that he did not
have it in his possession at the time. Trooper Espinoza noticed that Holt was
not wearing a seatbelt. Trooper Espinoza also smelled the odor of marijuana
emanating from the car. Kelly admitted that he had smoked marijuana earlier
that day but denied the presence of guns or drugs in the car when asked.
[4] When Trooper Espinoza returned to his patrol vehicle to run a records search,
Kelly began to move around inside the car and leaned over into the passenger
seat. A black handgun was then tossed from the passenger’s side window,
landing in the ditch beside the road. Kelly drove off, leading the police on a
high-speed chase. Eventually, Kelly collided with two other vehicles and
crashed into a median ditch. The two passengers remained at the scene of the
crash, but Kelly fled the scene and was apprehended shortly thereafter. The
police located the handgun that had been tossed from the car and took
fingerprints and DNA swabs from Kelly. Subsequent testing revealed the
presence of Kelly’s DNA and fingerprints on the weapon.
[5] Kelly’s fingerprints linked him to two prior convictions in Illinois: in 2009,
Kelly was convicted of Class 3 felony theft and Class 2 felony burglary; and in
2015, Kelly was convicted of Class 4 felony aggravated fleeing from law
enforcement. The certified records of the 2009 burglary conviction indicated
that Illinois had initially indicted Kelly for Class 1 felony residential burglary
based on his entry into the dwelling place of another. The original indictment
identified the victim by name and gave her street address, including a unit
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 3 of 17
number. Pursuant to a plea agreement, the indictment was amended to Class 2
felony burglary, and Kelly pleaded guilty as charged to the amended
indictment. The amendment substituted the word “building” for “dwelling” in
the burglary count but retained the victim’s address. Ex. Vol. I p. 46.
[6] On November 2, 2021, the State charged Kelly with: Count I, unlawful
possession of a firearm by a serious violent felon, a Level 4 felony; Count II,
resisting law enforcement, a Level 6 felony; Count III, leaving the scene of an
accident causing bodily injury, a Class A misdemeanor; Count IV, resisting law
enforcement, a Class A misdemeanor; and Count V, leaving the scene of an
accident, a Class B misdemeanor. A bench trial was held on October 9, 2025,
at the conclusion of which the trial court found Kelly guilty on Counts I and II
but not guilty on the remaining counts. At a February 13, 2026 sentencing
hearing, the trial court imposed an aggregate sentence of ten years. Kelly now
appeals.
Discussion and Decision
[7] Kelly claims that the State failed to prove that he was a serious violent felon. 2
Kelly does not deny the facts underlying his current convictions. Nor does he
deny that he has a prior conviction in Illinois. 3 But he claims that his 2009
2
Kelly does not challenge his conviction for resisting law enforcement.
3
In its summary of the argument, the State claims that Kelly’s 2015 Illinois conviction for Class 4 felony
aggravated fleeing from law enforcement is substantially similar to Level 5 felony resisting law enforcement
in Indiana, which is a serious violent felony. See Ind. Code § 35-47-4-5(b)(18)(B). We note that the State
alleged only the Illinois burglary conviction as the predicate serious violent felony. See Appellant’s App. Vol.
II p. 18. The State, moreover, does not further develop this claim in the argument section of its brief; the
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 4 of 17
Illinois conviction for burglary is not substantially similar to the Indiana crime
of burglary of a dwelling, a conviction for which would render Kelly a serious
violent felon. This is a question of law we review de novo. Moore v. State, 49
N.E.3d 1095, 1104 (Ind. Ct. App. 2016). We keep in mind that “criminal
statutes must be strictly construed against the State, and ‘may not be enlarged
beyond the fair meaning of the language used . . . .” A.-H.Y. v. State, 975
N.E.2d 1273, 1279 (Ind. 2012) (quoting Bond v. State, 515 N.E.2d 856, 857-58
(Ind. 1987)). Also, “[when] general and specific statutes conflict in their
application to a particular subject matter, the specific statute will prevail over
the general statute.” Snider v. State, 753 N.E.2d 721, 723 (Ind. Ct. App. 2001),
trans. denied.
A. The Serious Violent Felon Statute
[8] “A serious violent felon who knowingly or intentionally possesses a firearm
commits unlawful possession of a firearm by a serious violent felon, a Level 4
felony.” Ind. Code § 35-47-4-5(c). A serious violent felon is defined as “a
person who has been convicted of committing a serious violent felony.” I.C. §
35-47-4-5(a). A serious violent felony is defined to include:
burglary (IC 35-43-2-1) as a:
State does not identify the Illinois statute under which Kelly was convicted for fleeing from law enforcement,
nor does it compare the elements of that offense with the Indiana offense of resisting law enforcement as a
Level 5 felony. This argument is, therefore, waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring appellate
arguments to be supported by cogent reasoning). Accordingly, we address only that predicate offense.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 5 of 17
(A) Class A felony or Class B felony, for a crime committed
before July 1, 2014; or
(B) Level 1 felony, Level 2 felony, Level 3 felony, or Level 4
felony, for a crime committed after June 30, 2014[.]
I.C. § 35-47-4-5(b)(16).
[9] “Indiana appellate courts have held that a person may qualify as [a serious
violent felon] based on felony convictions from another jurisdiction so long as
the conviction is ‘substantially similar’ to an offense listed in Indiana Code
[S]ection 35-47-4-5(b).” State v. Johnson, 270 N.E.3d 489, 498 (Ind. Ct. App.
2025) (citing State v. Hancock, 65 N.E.3d 585, 587 (Ind. 2016)), trans. denied.
Prior versions of the serious violent felon statute directly included the
“substantially similar” language, but that provision has since been moved to
Indiana Code Section 1-1-2-4. Johnson, 270 N.E.3d at 498 n.1; see also State v.
Gomez, No. 25S-CR-14, slip op. at 8 (Ind. June 30, 2026) (“Whenever [a]
predicate offense statute makes a reference to a conviction for an Indiana
criminal offense, it becomes subject to Indiana Code [S]ection 1-1-2-4, ‘the
reference statute.’”), reh’g pending.
[10] This “reference statute” provides in relevant part:
Except as provided in subsection (c),[ 4] a reference to a conviction
for an Indiana criminal offense appearing within the Indiana
Code also includes a conviction for any of the following:
4
The parties appear to agree that subsection (c) is inapplicable here.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 6 of 17
*****
(3) A substantially similar offense committed in another
jurisdiction, including an attempt or conspiracy to commit the
offense, even if the reference to the conviction for the Indiana
criminal offense specifically refers to an “Indiana conviction” or
a conviction “in Indiana” or under “Indiana law” or “laws of this
state”.
I.C. § 1-1-2-4(b) (emphasis added).
[11] Our trial courts have the unenviable task of comparing foreign statutes to
Indiana statutes to determine whether offenses are substantially similar. 5 To
determine whether an offense in another jurisdiction is substantially similar to
an Indiana offense, we must compare the foreign statute under which the
defendant was convicted with the Indiana statute at the time of the current,
Indiana offense. Moore, 49 N.E.3d at 1104; see also State v. Akins, 824 N.E.2d
676, 678 (Ind. 2005) (“The correct comparison is between the Michigan statute
under which the defendant was convicted and the Indiana statute at the time of
the Indiana offense.”).
The Indiana Code does not define “substantially similar,” but in
State v. Bazan, 45 N.E.3d 856, 859 (Ind. Ct. App. 2015), we held
5
At trial here, the State made conclusory statements that Kelly was a serious violent felon based on his 2009
Illinois burglary conviction without comparing the Illinois and Indiana burglary statues. See Tr. Vol. II pp. 5,
88-89. Kelly’s defense counsel simply argued that there was insufficient proof that Kelly was in possession of
the handgun thrown from the car. Id. at 94. But this does not mean that Kelly waived his appellate
argument. It is well settled that “a claim of insufficiency of the evidence can be made for the first time on
appeal.” Williams v. State, 64 N.E.3d 226, 227 (Ind. Ct. App. 2016) (citing Ind. Trial Rule 50(A)(5) (criminal
defendant may challenge sufficiency of evidence at trial, in a motion to correct error, or for the first time on
appeal); see also Collins v. State, 364 N.E.2d 750, 754 (Ind. 1977) (citing Trial Rule 50 in holding that “a
defendant [may] raise sufficiency of the evidence for the first time on appeal.”).
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 7 of 17
that an out-of-state statute was not “substantially similar” to an
Indiana statute when the out-of-state statute was broader than the
Indiana statute. Specifically, we held that a New York statute for
operating a vehicle while impaired was not substantially similar
to Indiana’s statute for operating a vehicle while intoxicated
because the Indiana statute required a greater showing of
impairment. See id. In contrast, where an out-of-state statute was
more stringent than an equivalent Indiana statute, our [S]upreme
[C]ourt held that the statutes were substantially similar. See State
v. Akins, 824 N.E.2d 676 (Ind. 2005) (holding that because
Michigan’s statute for operating a vehicle while being under the
influence of an intoxicating liquor or having an alcohol content
of 0.10 grams or more per 100 milliliters of blood required a
degree of intoxication greater than Indiana’s equivalent statute,
the two statutes were substantially similar).
Moore, 49 N.E.3d at 1104 (some citations omitted). And in Hancock, our
Supreme Court, after considering dictionary definitions of the words
“substantial” and “similar,” held that “the elements of two statutes are
‘substantially similar’ if they have common core characteristics that are largely,
but not identically, alike in degree or extent.” 65 N.E.3d at 587.
B. The Illinois Burglary Statute
[12] At the time Kelly committed his 2009 Illinois offense, 6 the Illinois statute
defining the crime of burglary provided:
(a) A person commits burglary when without authority he
knowingly enters or without authority remains within a
building, housetrailer, watercraft, aircraft, motor vehicle as
6
Kelly was convicted in March 2009 in Illinois of an offense that he committed on January 23, 2009.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 8 of 17
defined in The Illinois Vehicle Code, railroad car, or any part
thereof, with intent to commit therein a felony or theft. This
offense shall not include the offenses set out in Section 4-102 of
The Illinois Vehicle Code.
(b) Sentence.
Burglary is a Class 2 felony. A burglary committed in a school or
place of worship is a Class 1 felony.
720 Ill. Comp. Stat. Ann. 5/19-1 (2001) (emphases added, footnotes omitted).
At the same time, the Illinois offense of residential burglary was defined by a
separate statute as follows:
(a) A person commits residential burglary who knowingly and
without authority enters or knowingly and without authority
remains within the dwelling place of another, or any part
thereof, with the intent to commit therein a felony or theft. This
offense includes the offense of burglary as defined in Section 19-1.
(b) Sentence. Residential burglary is a Class 1 felony.
720 Ill. Comp. Stat. Ann. 5/19-3 (2001) (emphasis added).
[13] Illinois, thus, has defined separate offenses for burglary generally and burglary
of a dwelling specifically. See id. (“This offense includes the offense of burglary
as defined in Section 19-1.”). Illinois’ choice to address dwelling-burglary
through a separate, more specific statute confirms that the omission of a
dwelling requirement from the general burglary statute was deliberate.
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 9 of 17 [14] Kelly was originally indicted under the Illinois residential burglary statute. The
indictment alleged that he “knowingly and without authority entered the
dwelling place” of the victim with the intent to commit theft therein. Ex. Vol. I
p. 46. At the plea hearing, however, the Illinois trial court granted the
prosecution leave to amend the bill of indictment by interlineation.
Specifically, the word “dwelling” was marked out and the word “building” was
substituted in its place. Id. The citation to the operative statute was also
changed from the Illinois residential burglary statute to the Illinois burglary
statute. The Illinois trial court then accepted Kelly’s plea to burglary as a Class
2 felony “as charged in” the amended indictment and entered judgment of
conviction accordingly. Id. at 55. It is, therefore, clear that Kelly was convicted
of the base offense of burglary in Illinois, not residential burglary.
C. The Indiana Burglary Statute
[15] The offense of burglary in Indiana is defined 7 as follows:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony or theft in it,
commits burglary, a Level 5 felony. However, the offense is:
(1) a Level 4 felony if the building or structure is a dwelling . . . .
Ind. Code § 35-43-2-1.8
7
We must compare the Illinois burglary statute under which Kelly was convicted with the Indiana statute at
the time of the instant, Indiana offense. Akins, 824 N.E.2d at 678; Moore, 49 N.E.3d at 1104.
8
Notably, both Illinois and Indiana grade burglary as a more serious offense when a dwelling is involved.
This reinforces our conclusion that the dwelling element is what separates the more serious offense from the
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 10 of 17
D. The Offenses Are Not Substantially Similar
[16] Kelly claims that the Illinois offense of burglary is not substantially similar to
the Indiana offense of burglary of a dwelling, a Level 4 felony, which is a
serious violent felony. Accordingly, Kelly argues that he does not qualify as a
serious violent felon and that the evidence is insufficient to sustain his
conviction. We agree.
[17] The Illinois offense of burglary has three elements. In contrast, the Indiana
burglary-of-a-dwelling statute—which elevates the offense to a Level 4 felony
and qualifies as a serious violent felony—requires four elements. The following
chart compares the elements of these statutes:
Illinois Indiana
1. knowingly entering or remaining 1. breaking and entering
within without authority
2. a building, housetrailer, 2. a building or structure of another
watercraft, aircraft, motor vehicle, person
railroad car, or any part thereof
3. with the intent to commit therein a 3. with the intent to commit a felony
felony or theft or theft in it
4. the building or structure is a
dwelling
lesser one in both states. Compare 730 Ill. Comp. Stat. Ann. 5/5-4.5-35 (providing that a Class 2 felony, such
as general burglary, is punishable by three to seven years of imprisonment), and 730 Ill. Comp. Stat. Ann.
5/5-4.5-30 (providing that a Class 1 felony, such as residential burglary, is punishable by four to fifteen years
of imprisonment), with Ind. Code § 35-50-2-6(b) (providing that a Level 5 felony, which includes burglary of a
non-dwelling structure, is punishable by one to six years of imprisonment), and Ind. Code § 35-50-2-5.5
(providing that a Level 4 felony, which includes burglary of a dwelling, is punishable by two to twelve years’
imprisonment).
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 11 of 17
720 Ill. Comp. Stat. Ann. 5/19-1 (2001); Ind. Code § 35-43-2-1(1).
[18] Simply put, the Illinois burglary statute contains no requirement that the
structure at issue be a dwelling. “Dwelling” under Indiana law means “a
building, structure, or other enclosed space, permanent or temporary, movable
or fixed, that is a person’s home or place of lodging.” Ind. Code § 35-31.5-2-107. “[O]ur courts have said that burglary of a dwelling is not so much an
offense against property as it is an offense against the sanctity and security of
habitation.” Howell v. State, 53 N.E.3d 546, 549 (Ind. Ct. App. 2016) (citing
Watt v. State, 446 N.E.2d 644, 645 (Ind. Ct. App. 1983)), trans. denied. The
Illinois burglary statute is indifferent to habitation, and it protects various forms
of property, including those not typically used as dwellings.
[19] We conclude, therefore, that the Illinois burglary statute under which Kelly was
convicted is broader than Indiana’s burglary-of-a-dwelling statute because
conduct violating the Illinois statute would not necessarily constitute burglary
of a dwelling in Indiana. “[A]n out-of-state statute is not substantially similar
to an Indiana statute where the out-of-state statute is broader than the Indiana
statute.” Hancock, 65 N.E.3d at 590.
[20] The State notes that two statutes need not be identically worded to be
substantially similar, so long as they display a “high degree of likeness.” Id. at
587, 590. Although “substantial similarity” does not require identical statutory
language, see id. at 587, the difference here is not merely one of wording. The
Illinois statute reaches conduct the Indiana statute does not reach at all:
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 12 of 17
entering a watercraft, aircraft, motor vehicle, or railroad car is burglary in
Illinois, but it is not burglary of a dwelling in Indiana. Nor is the dwelling
element incidental. Burglary qualifies as a serious violent felony only if it is at
least a Level 4 felony, and—absent bodily injury or a deadly weapon, neither of
which were alleged here—the dwelling requirement is what elevates the offense
to that level in Indiana. I.C. § 35-43-2-1. The element the Illinois statute lacks
is precisely what makes the Indiana offense a serious violent felony. Moreover,
a separate Illinois statute defines the distinct offense of residential burglary—
burglary of a dwelling; and Kelly did not plead guilty to that offense but to the
lesser, base offense of burglary.
[21] The State claims that Hancock permits courts to look beyond the text to consider
the conduct underlying the out-of-state conviction. The State contends that the
charging instrument shows Kelly broke into an apartment, which would qualify
as a dwelling and would, therefore, make the offense burglary as a Level 4
felony, sufficient to render Kelly a serious violent felon. The State’s argument
relies on the portion of the Hancock opinion in which the Court observed that
elements “may be considered substantially similar with respect to specific
characteristics such as the underlying conduct sought to be regulated.” 65
N.E.3d at 587 (emphasis added). We do not read Hancock so broadly.
[22] First, the Court in Hancock referred to the underlying conduct the statute at
issue seeks to regulate, not the specific conduct of the defendant in a particular
case. Id. at 586. Moreover, the Court in Hancock did not base its decision on
what the defendant had done in the out-of-state conviction. In fact, the Court
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 13 of 17
noted that the underlying facts of the out-of-state conviction were not entirely
clear. Id. at 586. The Court then compared the elements of each offense,
considered Ohio’s classification of criminal offenses, and consulted law from
both states to construe the terms of the statutes. Id. at 588. If consideration of
the defendant’s underlying conduct were sufficient, none of the Court’s
discussion of Ohio law would have been necessary. 9 Also, in that case, the
predicate Ohio statute required trespass in an occupied structure maintained as
a permanent or temporary habitation, with another person present or likely
present. Id. at 591-92. The Court found substantial similarity because those
elements aligned with Indiana’s dwelling requirement such that conduct
violating the Ohio statute would necessarily violate Indiana’s burglary-of-adwelling statute. Id. In contrast, here, the Illinois burglary statute can be
violated by entry into several structures, such as a railroad car, which would not
constitute burglary of a dwelling in Indiana.
[23] Much of the State’s argument is based on the original indictment, which alleged
that Kelly entered a dwelling without authorization. But this indictment was
amended before Kelly pleaded guilty, most notably by eliminating the word
“dwelling” and substituting in its place the word “building.” Ex. Vol. I p. 46.
9
The State’s reliance on Spencer v. State, 153 N.E.3d 289 (Ind. Ct. App. 2020), is misplaced. In that case, the
court addressed whether certain Florida offenses were “substantially equivalent” to the Indiana offense of
child molesting. Id. at 296 (quoting Ind. Code § 35-38-1-7.5(b)(1)(K)). But there, neither party disputed how
the Florida offenses compared with their Indiana counterparts, and the court ultimately resolved the case on
the ground that the Florida offenses were committed before the date the Indiana statute required. See id. at
296-98. Even assuming that Spencer permits a court to consider the facts underlying an out-of-state
conviction, we do not read it to allow consideration of an allegation that was struck from the charging
instrument as part of the defendant’s guilty plea.
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The State refers to the rule in Illinois that a voluntary guilty plea admits the
facts of the offense charged. People v. Gonzalez, 259 N.E.3d 288, 294-95 (Ill.
App. Ct. 2025). But what was ultimately charged in Illinois, after the
amendment, was unauthorized entry into a building, not a dwelling. And this
is the offense to which Kelly pleaded guilty and the offense for which he was
convicted. The State also notes that the amended indictment retained the
victim’s street address, which included a unit number. 10 But the mere fact that
the victim’s address included a unit number and that the premises was,
therefore, likely a dwelling does not mean that Kelly pleaded guilty to
residential burglary; to the contrary, he pleaded guilty to the lesser, base offense
of burglary, where entry into a dwelling was not an element of the offense. 11
[24] In short, we conclude that the Illinois burglary statute is not substantially
similar to the Indiana statute defining burglary of a dwelling, a Level 4 felony,
10
The State makes the same argument regarding the theft count of the amended indictment, to which Kelly
also pleaded guilty. This count retained the victim’s name and address and alleged that she owned the
property. But an allegation contained in a separate count is not an element of the burglary offense to which
Kelly pleaded guilty. These details may well establish that the building Kelly entered was, in fact, a dwelling.
But that is not the question; the question is for which offense judgment of conviction was entered. And, here,
the Illinois trial court entered a judgment of conviction for an offense that could be committed by entering
any building. This makes the Illinois offense broader and, therefore, not substantially similar to the Indiana
offense of burglary of a dwelling.
11
The State’s position would lead to absurd results if applied to Indiana law. Imagine a defendant who
breaks and enters a dwelling with the intent to commit a felony therein; this defendant is charged with
burglary of a dwelling, a Level 4 felony, which would make the defendant a serious violent felon if convicted.
But, during plea bargaining, the State agreed to lower the offense to the base offense of burglary, a Level 5
felony. Under the State’s position, a court could look to the defendant’s conduct forming the basis of the
original charge to conclude that the defendant actually committed an offense that would be Level 4 felony
burglary of a dwelling—and that the defendant was, thus, a serious violent felon—even though he pleaded
guilty to the lesser-included base offense of burglary of a structure. The same would be true of an habitual
offender enhancement—it would permit a court to look at the facts underlying the offense and conclude that
the offense committed was, in fact, a felony, even if the defendant was convicted of a misdemeanor. This
would be an untenable result.
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which is required to qualify burglary as a serious violent felony. Kelly is,
therefore, not a serious violent felon, and we must reverse his conviction for
unlawful possession of a firearm by a serious violent felon.
Conclusion
[25] The Illinois burglary statute under which Kelly was convicted is not
substantially similar to the Indiana statute defining burglary of a dwelling, a
conviction for which would qualify Kelly as a serious violent felon. Kelly is,
thus, not a serious violent felon based on the Illinois conviction. Accordingly,
we reverse Kelly’s conviction for unlawful possession of a firearm by a serious
violent felon and remand to the trial court with instructions to vacate Kelly’s
conviction and sentence on that count.
[26] Reversed and remanded.
Bradford, J., and Felix, J., concur.
ATTORNEY FOR APPELLANT
R. Brian Woodward
Appellate Public Defender
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Kelly A. Loy
Section Chief for Criminal Appeals
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 16 of 17 Alexa R. Rojas
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 26A-CR-665 August 31, 2026 Page 17 of 17