Durham v. State, 684S235

• Decision Date: 15 June 1984
• Docket Number: No. 684S235,684S235
• Citation: 464 N.E.2d 321
• Parties: Anthony C. DURHAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 321

464 N.E.2d 321

Anthony C. DURHAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 684S235.

Supreme Court of Indiana.

June 15, 1984.

Marcus C. Emery, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This case is before this Court upon the defendant's petition to transfer. He contends that the state should not have been allowed to refile the habitual offender count against him as the jury in a prior trial on the same underlying felony made a determination that he was not a habitual offender. The Court of Appeals, Second District, affirmed the trial court's action which allowed the state to reinstate the habitual offender charge against defendant. Durham v. State, (1984) Ind.App., 458 N.E.2d 287. Although we likewise affirm the trial court's action, we now grant transfer in order to consider how the United States Supreme Court's decision in Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, affects our case law on this issue. The opinion and decision of the Court of Appeals are hereby vacated. The decision of the trial court is affirmed.

The defendant was convicted by a jury of carrying a handgun without a license, a Class D felony, Ind.Code Sec. 35-47-2-23 (Burns 1983 Supp.) and of the unlawful possession of a portable police radio, a Class B misdemeanor, Ind.Code Sec. 35-44-3-12 (Burns 1979 Repl.). However, the jury also found that defendant was not a habitual criminal, Ind.Code Sec. 35-50-2-8 (Burns 1983 Supp.). Defendant then filed a belated motion to correct errors and the convictions were set aside. The state refiled the charges for the two underlying counts and also filed an amended habitual offender count alleging four prior felony convictions including the two prior convictions which had been the basis of the first habitual offender count. Defendant filed a motion to dismiss the habitual offender information, but the trial court ultimately refused to dismiss it. This appeal followed and defendant now argues that a retrial on the habitual offender count would constitute double jeopardy and that the habitual offender count also should be barred by the doctrine of prosecutorial vindictiveness.

We have not before considered a situation in which the state has refiled a habitual offender count along with refiling the underlying felony charges where the jury had previously found defendant not to be a habitual offender in a trial involving the same underlying felonies. However, we have considered other situations in which a habitual offender count is filed against a defendant using the same prior convictions that have been used in a previous habitual offender determination, and we have established certain general principles which guide us here. We have consistently emphasized the unique status of the habitual offender statute and held that it does not establish a separate offense, but rather provides for the imposition of a more severe sentence for the substantive crime charged. We have explained that habitual criminality is a status for the enhancement of punishment upon the conviction of an additional, substantive crime. The purpose of the statute is to more severely penalize those persons whom prior sanctions have failed to deter from committing felonies. Baker v. State, (1981) Ind., 425 N.E.2d 98; Comstock v. State, (1980) 273 Ind. 259, 406 N.E.2d 1164; Hall v. State, (1980) 273 Ind. 507, 405 N.E.2d 530; Norris v. State, (1979) 271 Ind. 568, 394 N.E.2d 144.

We have further explained that the same prior convictions may be used to establish the status of habitual offender in a later trial when a jury in a previous case has found that the status of habitual offender was not established. We explained our reasoning for this in the following manner:

"It is clear that the habitual offender charge in the instant case is based upon the fact of two prior felony convictions. The action of the trial court at the previous habitual offender trial did not operate to 'acquit' defendant of the two prior felony convictions. Its action involved only the sentencing to be imposed upon the 1977 rape charge and a determination of defendant's status as an habitual offender based upon the evidence presented at that time. It is clear that there is nothing to prevent the state from alleging the fact of the prior felony convictions again at the instant trial since those two prior convictions do still exist."

Hall v. State, 273 Ind. at 516-517, 405 N.E.2d at 53 (emphasis in original).

The United States Supreme Court has generally held that there are fundamental distinctions between a sentence and an acquittal, such that double jeopardy guarantees do not apply to sentencing determinations. However, they considered the unique aspects of death penalty determinations in Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, and found that a jury decision against the death penalty in a particular case would operate as a final acquittal on the death penalty issue on a retrial of the same case. We find there are significant differences between a death penalty determination and a habitual offender determination which convince us that Bullington does not apply to habitual offender determinations.

The death penalty is the most extreme penalty authorized by law and for that reason alone warrants unique treatment. It can only be applied within the specific facts of a particular case. The habitual offender status, however, is a continuing status of a particular defendant as long as he has two or more felony convictions on his record. The state may use this status any time the defendant commits a further crime and a jury's determination that a defendant is not a habitual offender during a particular trial is not an "acquittal" of that defendant's status as a habitual offender. A defendant cannot be "acquitted" of that status any more than he can be "acquitted" of being a certain age or sex or any other inherent fact. If a defendant can be retried on the basic underlying felonies in a particular case, there is no double jeopardy prohibition against the state also charging him as a habitual offender as long as the prior felonies remain on his record.

In Bullington, the Court found that the death penalty procedure there was similar to a trial in many important respects and that the state should not have a second attempt to "prove its case." We pointed out one of the significant differences between a death penalty proceeding and a habitual offender proceeding was that the death penalty proceeding involved a consideration of the particular facts underlying the substantive offense. We explained:

"The recent United States Supreme Court case of Bullington v. Missouri, (1981) U.S. , 101 S.Ct. 1852, 68 L.Ed.2d 270, is not applicable since it involved a bifurcated death-penalty procedure wherein the jury returned a verdict fixing the punishment at life imprisonment and not at death. The defendant was granted a new trial on the substantive charge. The Supreme Court held that the state could not ask for the death penalty a second time since the sentencing procedure at the defendant's first trial was like the trial on the question of guilt or innocence and involved a consideration of the particular facts underlying the substantive offense. Bullington v. Missouri, supra.

"Because 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. Our legislature has decided that an enhanced punishment of thirty additional years is appropriate for all individuals who are convicted on a felony when it is determined that they also have two prior felony convictions. There are no constitutional or collateral estoppel barriers to prevent the state from exacting that punishment each time a different felony is committed as long as the prior convictions do still exist."

Baker v. State, 425 N.E.2d at 101 (emphasis added).

In this case, the refiled habitual offender information does not create any new offense against defendant but is a sentencing choice associated with the...