566 N.E.2d 1027 (Ind. 1991), 55S00-8808-CR-775, Best v. State

Docket Nº:55S00-8808-CR-775.
Citation:566 N.E.2d 1027
Party Name:Alvin BEST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Case Date:February 15, 1991
Court:Supreme Court of Indiana

Page 1027

566 N.E.2d 1027 (Ind. 1991)

Alvin BEST, Appellant (Defendant Below),


STATE of Indiana, Appellee (Plaintiff Below).

No. 55S00-8808-CR-775.

Supreme Court of Indiana.

February 15, 1991

Page 1028

       Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

       Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

       PER CURIAM.

       Alvin Best was tried to a jury and found guilty of operating a motor vehicle while driving privileges are forfeited for life, a class C felony, Ind.Code Sec. 9-12-3-2 (West Supp.1990), and operating a vehicle while intoxicated, a class D felony, Ind.Code Sec. 9-11-2-3 (West Supp.1990). The trial court sentenced Best to five years and two years respectively for these crimes. The court also enhanced the operating while intoxicated sentence by twenty years in light of the jury's determination that Best was an habitual offender. Ind.Code Sec. 35-50-2-8 (West 1986). The court ordered the sentences to be served consecutively for a total of twenty-seven years imprisonment.

       Best appeals eight issues to this Court:

  1. Whether the habitual offender determination was contrary to law;

  2. Whether Best was improperly sentenced as an habitual offender under Ind.Code Sec. 35-50-2-8;

  3. Whether the evidence was sufficient to support Best's convictions;

  4. Whether the trial court erred by denying Best's motion for mistrial;

  5. Whether the trial court erred when it admitted into evidence certified documents about one of Best's 1976 convictions;

  6. Whether the trial court erred when it refused Best access to law books;

  7. Whether Best received effective assistance of counsel; and,

  8. Whether Best's sentence is manifestly unreasonable and disproportionate to the nature of the offense.

           The evidence presented at trial showed that on July 6, 1987, Kim Morris was driving west on Hadley Road in Morgan County when he saw a smoking motorcycle sitting twelve to fifteen feet off the road. On the other side of the road, Morris saw Best sitting at the edge of the grass trying to fight off a swarm of bees. Morris saw no one else in the vicinity.

           Morris stopped to help, and Best told him he had missed the curve and run his motorcycle off the road and up on the bank. Best could not retrieve his motorcycle because bees were swarming around it, so Morris offered to drive him home. On the way home Morris smelled alcohol on Best's breath.

           Shortly after Morris and Best arrived at Best's home, State Trooper Canal arrived seeking information about a reported burglary. As he drove up, Trooper Canal saw Best and Best's father getting into a truck. Best was unsteady and had difficulty maintaining his balance. Best told Canal he had wrecked his motorcycle while driving on Hadley Road. About fifteen minutes later, Trooper Collingsworth arrived at the Best residence, and Best told him the same story. Collingsworth believed that Best was intoxicated.

    Page 1029

           A check by the troopers disclosed that Best's driver's license had been suspended for life for repeated offenses of driving while intoxicated. They confronted Best with that information, and he immediately told them that they had misunderstood him. He changed his story and claimed that his brother Rick was the driver of the motorcycle and that he was only a passenger. When the officers asked about Rick, however, Best's mother said that Rick was near Eminence visiting his girlfriend. The officers arrested Best, took him to the hospital for treatment of bee stings, and delivered him to the Morgan County jail.

  9. The Habitual Offender Determination: Charging Additional Priors

           Best claims that the finding that he is an habitual offender is contrary to law because the State alleged and proved ineligible prior convictions.

           To sustain a sentence under the habitual offender statute, the State must show that the defendant has been twice convicted and twice sentenced for felonies. The commission of the second offense must have been subsequent to the sentencing on the first offense, and the commission of the principal offense on which the enhanced punishment is being sought must be subsequent to the sentencing on the second conviction. Zavesky v. State (1987), Ind., 515 N.E.2d 530.

           The jury in this case made specific findings that Best was convicted on each of four prior offenses: theft (1976), burglary (1976), theft (1985), and driving after being found an habitual traffic offender (1985).

           The evidence shows that the theft for which Best was sentenced on June 24, 1976, was committed on November 30, 1975. Consequently, Best argues that neither that theft nor the second-degree burglary for which he was sentenced on October 8, 1976, can be counted in an habitual offender determination because they overlap. He makes the same claim of overlap for the other two crimes.

           It is apparent, of course, that the State could have charged just one of Best's 1976 convictions and one of his 1986 convictions. Charging all four was surplusage and not grounds for reversal, particularly in light of the jury's finding that Best had been convicted of all four.

  10. Can Best Be Sentenced Under Ind.Code Sec. 35-50-2-8?

           Best contends that the trial court improperly sentenced him as an habitual offender under Ind.Code Sec. 35-50-2-8 because all of his prior felonies were class D felonies or the equivalent of class D felonies.

           Ind.Code Sec. 35-50-2-8(h) states: "A person may not be sentenced as an habitual offender under this section if all of the felonies relied upon for sentencing the person as an habitual offender are Class D felonies."

           This section does not apply to Best because one of the prior crimes relied upon for sentencing was a 1976 second degree burglary, the equivalent of a class...

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