Denton v. State

• Decision Date: 22 August 1986
• Docket Number: No. 1185S455,1185S455
• Parties: Royce Edsel DENTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 576

496 N.E.2d 576

Royce Edsel DENTON, Appellant, v. STATE of Indiana, Appellee.

No. 1185S455.

Supreme Court of Indiana.

Aug. 22, 1986.

Rehearing Denied Sept. 29, 1986.

Sheila Suess Kennedy, Mears Crawford Kennedy & Eichholtz, Indianapolis, for appellant.

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

GIVAN, Chief Justice.

This is an appeal from a retrial on the issue of appellant's habitual offender status. In 1981, a jury found appellant guilty of Rape, a Class B felony, and also found him to be an habitual offender. The court imposed a forty-five (45) year sentence. On direct appeal this Court affirmed the conviction. Denton v. State (1983), Ind., 455 N.E.2d 905.

On March 15, 1984, appellant filed a Motion to Correct Erroneous Sentence in which he alleged that one of the prior felony convictions shown in the habitual offender proceeding had been vacated. Attached was the judgment of the Hancock Circuit Court entered October 12, 1983, granting appellant's Petition for Post-Conviction Relief and vacating his 1975 conviction for rape and commission of a crime of violence while armed. On August 13, the trial court granted appellant's motion and set aside the habitual offender finding.

On September 4, the State filed a motion for retrial as to the habitual offender status. In December, the court granted the State's oral motion to file an amended habitual offender count. On May 2, 1985, a jury found that appellant had accumulated two or more prior unrelated felony convictions and that he was an habitual offender. The court then resentenced appellant, adding thirty (30) years to the fifteen (15) years previously imposed on the Class B felony conviction.

Appellant contends the trial court erred in overruling both his motion to dismiss and his pro se motion to quash the amended habitual offender charge. The motions were premised on his assertion that the vacation of the first habitual offender determination was in effect a ruling that the jury's finding was not supported by sufficient evidence and, as a result, the State was barred by the Double Jeopardy Clause of the United States Constitution and by Ind.Code Sec. 35-41-4-3 from retrying him as an habitual offender.

Appellant correctly recognizes that this Court has held the doctrines of double jeopardy and collateral estoppel to be inapplicable to habitual offender proceedings. Mers v. State (1986), Ind., 496 N.E.2d 75; Durham v. State (1984), Ind., 464 N.E.2d 321 (DeBruler, J., and Prentice, J., dissenting); Baker v. State (1981), Ind., 425 N.E.2d 98 (DeBruler, J., and Prentice, J., dissenting). As stated by Justice Hunter, "[b]ecause the habitual offender statute does not create new or separate offenses and the habitual offender proceeding does not deal with the underlying facts on the substantive charge, the use of prior convictions at more than one habitual offender proceeding does not constitute double jeopardy." Baker, supra at 101. While this case presents a somewhat different question than those addressed in Durham and Baker, in that here the State filed an amended habitual offender count after successfully proving appellant's habitual offender status at the initial trial, the rationale of those cases is controlling.

After the State had successfully proven appellant's habitual offender status, the subsequent vacation of one of the prior felony convictions shown at the original proceeding created no impediment to a retrial on the issue of his habitual offender status. The trial court did not err in overruling appellant's motion to dismiss and motion to quash.

Appellant contends the trial court erred in allowing the State to file an amended habitual offender count alleging a prior unrelated felony conviction which was not alleged in the original charge.

On December 26, 1984, the State orally moved to file an amended habitual offender count. The motion was granted. The amended affidavit was filed under the same cause number as the original proceeding. The amended count alleged four prior unrelated felony convictions, one of which, unlawful possession of mail, was not alleged in the original count.

The statute upon which appellant relies provides:

"Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated or changes the identity of the offense charged; nor may any indictment or information be amended after arraignment for the purpose of curing a failure to charge or state an offense or legal insufficiency of the factual allegations." Ind.Code Sec. 35-3.1-1-5(e) (Burns 1979) (repealed by Acts 1981, P.L. 298, recodified as Ind.Code Sec. 35-34-1-5) (emphasis added).

The amended affidavit clearly stated that appellant was alleged to be an habitual offender, and in no way changed either the theory of the charge as originally stated or the identity of the "offense" charged. Appellant has not alleged any factual deficiency in either the original or amended habitual offender counts. See Anderson v. State (1982), Ind., 439 N.E.2d 558. We can discern no prejudice to appellant resulting from the amendment. Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70. The trial court committed no error in allowing the State to file the amended habitual offender count.

In an issue raised in his motion to quash, appellant argues his retrial was motivated by prosecutorial vindictiveness. He contends the addition of a fourth alleged prior felony conviction in the amended charge, when the State was only required to prove two prior unrelated felony convictions, demonstrated prosecutorial vindictiveness.

That argument is without merit. The cases cited by appellant, Murphy v. State (1983), Ind., 453 N.E.2d 219 (Pivarnik, J., and Givan, C.J., dissenting) and Cherry v. State (1981), 275 Ind. 14, 414 N.E.2d 301 (Pivarnik, J., and Givan, C.J., dissenting), cert. denied, 453 U.S. 946, 102 S.Ct. 17, 69 L.Ed.2d 1033, are potentially applicable only where the State, following a successful appeal or motion for mistrial by a defendant, files more numerous or more severe charges for the same basic criminal conduct. Appellant was confronted on retrial with precisely the same charge, an allegation that he was an habitual offender, the only change being in the specification of the prior felony convictions. There is no indication that the retrial was motivated by prosecutorial vindictiveness. See Durham, supra.

Appellant asserts the trial court improperly instructed the jury that in 1963 the offense of grand larceny was a felony.

The proposed final instruction tendered by appellant read as follows: "You are instructed that in 1963, a commitment to the Indiana State Farm was a commitment for a misdemeanor." The court refused to give the tendered instruction, and instead instructed the jury: "You are instructed that on November 7, 1963 the law in the State of Indiana provided that Grand Larceny was a felony." The record reveals that appellant, then age 19, was found guilty in 1963 of grand larceny and sentenced under the minor statute to three (3) months at the Indiana State Farm.

In determining whether an instruction was properly refused, this Court considers whether the tendered instruction correctly stated the law, whether there was evidence in the record to support the giving of the instruction and whether the substance of the tendered instruction was covered by other instructions which were given. Van Orden v. State (1984), Ind., 469 N.E.2d 1153; Richey v. State (1981), Ind., 426 N.E.2d 389. It is not error for a trial court to refuse to give an instruction which erroneously states the law or is confusing and misleading to the jury. Tunstall v. State (1983), Ind., 451 N.E.2d 1077; Richey, supra.

Appellant argues that under the authority of Shaw v. State (1965), 247 Ind. 139, 211 N.E.2d 172, in which this Court held that a prior felony conviction resulting in imprisonment in the Indiana State Farm rather than the Indiana State Prison was not sufficient to support a determination under the habitual criminal statute, his 1963 conviction was not a felony conviction and thus his tendered instruction was a correct statement of the law as it then existed.

Shaw was expressly overruled in Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. It has subsequently been held that the fact that a defendant was committed to the State Farm rather than the State Prison does not transform a felony conviction into a misdemeanor conviction for purposes of an habitual offender determination. See, e.g., Clay v. State (1982), Ind., 440 N.E.2d 466; Rodgers v. State (1981), Ind., 422 N.E.2d 1211. The court's final instruction was a correct statement of the law; therefore, it did not err in so instructing the jury or in refusing appellant's tendered instruction.

In a similar contention, appellant argues the trial court improperly instructed the jury that his 1970 conviction for theft was a felony conviction in light of his defense that he actually pled guilty to the lesser included offense of joy riding.

The court's Final Instruction No. 12 reads as follows: "You are instructed that on October 30, 1970, the law in the State of Indiana provided that Theft was a felony." Appellant did not tender a proposed instruction on the offense of joy riding.

Appellant did testify that "I pled guilty to the lesser offense of theft and I received thirty days and the only reason I pled guilty the Judge said it would be a misdemeanor if I'd plead guilty." He further testified that a transcript of the 1970 proceeding was not available to him. He now contends that if the jury chose to believe his version of the 1970 conviction, it would follow that it was not one for which he might have been imprisoned in excess of one year and therefore could not be considered a felony conviction.

That contention is not supported by the...