Bohannon v. State
| Decision Date | 04 October 2012 |
| Docket Number | No. 28A01–1203–CR–115.,28A01–1203–CR–115. |
| Citation | 976 N.E.2d 146 |
| Parties | Ronald A. BOHANNON, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Greene Circuit Court; The Honorable Gregory A. Smith, Special Judge; Cause No. 28C01–1109–PC–38.
Ronald A. Bohannon, Bunker Hill, IN, Appellant Pro Se.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant–Petitioner, Ronald A. Bohannon (Bohannon), appeals the postconviction court's order regarding his petition for post-conviction relief.
We affirm.
Bohannon raises four issues on appeal, three of which we find dispositive and which we restate as follows:
(1) Whether the post-conviction court erred in denying his claim that his sentence violated federal and state constitutional prohibitions against double jeopardy;
(2) Whether the post-conviction court erred in denying his claim that the State violated Ind.Code § 35–34–1–5(e) when it filed his habitual offender charge past the omnibus date; and
(3) Whether the post-conviction court erred in denying his claim that his trial counsel provided ineffective assistance.
On August 16, 2009, George Dallaire (Officer Dallaire), a Detective with the Greene County Sheriff's Department, received a dispatch concerning a shooting in Greene County. After learning that the victim, T.B., had been admitted to the Greene County General Hospital and was there along with his father, Officer Dallaire proceeded to the hospital to investigate. By the time Officer Dallaire arrived at the hospital, T.B. had passed away from his injuries. Officer Dallaire nevertheless examined T.B.'s body and discovered that he was a fourteen month old male infant who had received a gunshot wound to his head. Based on partially burned and unburned gunpowder around the wound, Officer Dallaire estimated that the gun had been discharged from within a distance of four or five feet.
After examining T.B., Officer Dallaire spoke with T.B.'s father, Bohannon, who had been pushing T.B. in a stroller when he was shot. Bohannon told the Officer that he had taken his children, S.B. and T.B., for a walk when he heard a “pop” near an old abandoned house on the road. (Transcript p. 26). A second later, Bohannon noticed that T.B. had been injured. Officer Dallaire asked Bohannon who he thought might be responsible and Bohannon told him that he had recently been involved in an altercation with his wife, Jamie Bohannon's, ex-husband, Carl Finley (Finley), who had threatened that he would “take care of [him.]” (Tr. p. 26). In a separate interview, Tanya Salesman (Salesman), a woman who lived with Bohannon, also indicated that she believed Finley was responsible. Later that night, Officer Dallaire interviewed S.B., who told the Officer that he “thought the pop came from the gun that daddy had in his pants.” (Tr. p. 30). This declaration contradicted previous claims by Bohannon and Salesman that although they owned and kept a shotgun in their closet, they did not own any handguns.
Meanwhile, a crime scene investigator collected Bohannon's clothes from the hospital to swab for gunpowder, and a detective swabbed Bohannon's hands. As his hands were being swabbed, Bohannon told the detective that he had gotten his shotgun from the closet after T.B.'s shooting, lain down in a military position, and fired one shot before putting the shotgun back in the closet. However, Officer Dallaire examined the shotgun and determined that it had not been fired in at least a month or more because its barrel was full of cobwebs and dust.
Two days later, Officer Dallaire interviewed Finley and discovered that he had an alibi for the time of the shooting. Officer Dallaire brought Bohannon and Salesman in for further questioning, but Bohannon's story remained essentially the same. When Officer Dallaire confronted Bohannon with the evidence that his shotgun had not been used recently, Bohannon maintained that he had fired it the night of T.B.'s shooting.
On August 18, 2009, Bohannon was arrested on unrelated charges. While in custody, he admitted to the detectives that he had accidentally shot T.B. He told them that he had tucked a .38 caliber revolver into his belt prior to his walk with his sons and cocked the gun when he heard a noise on the walk. Then, when he heard more noises he pulled the gun out from behind his back, placed his fingers on the trigger and hammer, and placed the gun on the stroller handles. At that point, the gun accidentally discharged and struck T.B. in the head.
During the same interview, Bohannon admitted that in addition to the revolver, he also owned a .45 caliber semi-automatic handgun. When Officer Dallaire asked him where both handguns were, Bohannon replied that the semi-automatic handgun should still be in the house, but that he thought Salesman had thrown the revolver in a field behind the house. According to Bohannon, he had purchased the revolver from a person in Terre Haute whom he knew dealt in stolen guns. He further admitted that he and Salesman had agreed to blame Finley for the shooting.
Subsequently, the detectives searched the field behind Bohannon's house and found the revolver, but could not find Bohannon's other handgun. They discovered that the revolver had been stolen from a residence in Clay County in June of 2009 and that witnesses had seen Salesman's car at the scene of the burglary. They also learned that Bohannon was not licensed to carry a handgun.
On August 20, 2009, the State filed an Information charging Bohannon with six Counts, including Count I, reckless homicide, a Class C felony; Count III, possession of a handgun without a license, a Class A misdemeanor; Count IIIA, an enhancement of Count III to a Class C felony based on prior felony convictions; and Count IV, receiving stolen property, a Class D felony. 1 At Bohannon's initial hearing, the trial court set a trial date for January 26, 2010 and an omnibus date of October 12, 2009. Subsequently, on November 18, 2009, the State filed an additional Information charging Bohannon with being an habitual offender, Ind.Code § 35–50–2–8. One month later, on December 18, 2009, Bohannon pled guilty to Counts I, III, IIIA, IV, and to being an habitual offender. In exchange, the State dismissed the remaining charges and left Bohannon's sentence to the trial court's discretion. On January 29, 2010, the trial court accepted the plea agreement and entered a judgment of conviction on the charges.
That same day, the trial court held a sentencing hearing and sentenced Bohannon to eight years on Count I; seven years on Counts III and IIIA; two years on Count IV, and five years for being an habitual offender. The trial court ordered that the sentences for Counts I, III, and IIIA should be served consecutively, with the sentence for Count IV served concurrently to Counts III and IIIA, and the sentence for being an habitual offender served consecutively to all of the sentences.2 Bohannon did not file a timely appeal.
On September 16, 2011, Bohannon filed a petition for post-conviction relief in which he alleged that (1) the trial court had erred by adding a double enhancement to his sentence for possessing a handgun without a license; (2) his trial counsel's assistance had been ineffective; (3) the trial court had been biased and prejudiced; (4) his sentence was erroneous under I.C. § 35–38–1–15; (5) his sentence violated double jeopardy prohibitions; and (6) the State had erred by filing his habitual offender charge after the omnibus date. On January 13, 2012, the post-conviction court held an evidentiary hearing, and on February 8, 2012, the post-conviction court granted Bohannon's claim with respect to his double sentence enhancement, but denied the remaining claims.
The next day, on February 9, 2012, the trial court entered a corrected sentencing order in which it sentenced Bohannon to eight years on Count I; seven years on Counts III and IIIA, to be served consecutively to Count I; two years on Count IV, to be served concurrently with Counts I and IIIA; and five years for being an habitual offender, attached to Count I. In aggregate, Bohannon's sentence totaled twenty years.
Bohannon now appeals. Additional facts will be provided as necessary.
On appeal from the denial of post-conviction relief, a petitioner stands in the position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 498 (Ind.2011). In such a case, a petitioner must show that the evidence, taken as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Id. We do not defer to the trial court's legal conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this court will only consider the probative evidence and all reasonable inferences therefrom that support the postconviction court's determination and will not reweigh the evidence. Bigler v. State, 732 N.E.2d 191, 194 (Ind.Ct.App.2000), trans. denied.
II. Double Jeopardy
First, Bohannon argues that the State violated federal and state prohibitions against double jeopardy when it charged him with possessing the same handgun without a license in both Counts III and IIIA. Bohannon's sentence on Count III, possession of a handgun without a license, a Class A misdemeanor, was enhanced by Count IIIA to a Class C felony based on three prior felony convictions. Our supreme court has held that:
Prohibitions against double jeopardy protect against: (1) reprosecution for an offense after a defendant has already been convicted of the same offense in a previous prosecution; (2) reprosecution of a defendant after an acquittal; (3) multiple punishments for the same offense in a single trial; (4) reprosecution of a defendant after the...
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