Elmore v. State, 45A03-9605-PC-165
| Decision Date | 24 November 1997 |
| Docket Number | No. 45A03-9605-PC-165,45A03-9605-PC-165 |
| Citation | 688 N.E.2d 213 |
| Parties | Leroy W. ELMORE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Appellant-petitioner Leroy Elmore appeals from the denial of his petition for postconviction relief. Elmore was convicted of theft, a Class D felony, and was found to be a habitual offender. The facts, as found by our supreme court in Elmore v. State, 515 N.E.2d 1388 (Ind.1987), are as follows:
On December 17, 1985, a 1985 Century Buick automobile belonging to Leroy Dick was stolen while parked at a place of business on Broadway in Gary, Indiana. Before the police received the report of the stolen vehicle, they received another report to proceed to 324 Tyler Street in Gary because an automobile stripping was in progress. Officer Carl Johnson responded to that call accompanied by his partner. They proceeded down the alley at that address and noticed fresh tire marks in the snow leading into a garage at an abandoned house. There were no tracks leading from the garage.
Officer Johnson and his partner got out of the police car and went to the closed door of the garage. They could hear voices inside the garage and what sounded like a tire jack being operated. The officers entered the garage and arrested appellant and his accomplice. As this was being accomplished, they received the report of the stolen automobile on the police radio. The description matched the automobile in the garage.
Officer Johnson testified that the automobile was jacked up, that the steering column was 'busted' near the turn signals and that the lug nuts and hubcaps were lying on the ground. It was also discovered that the automobile's radio and battery were missing. The trunk lock had been 'popped' and the keys to the automobile were not in the area. Dick testified that the automobile suffered additional damage in that: the door locks had been 'popped out'; the contents of the glove compartment had been placed on the seat; and the front panel had been torn apart.
On appeal, Elmore raises four issues for our review:
(1) whether vacation of one of 13 related felonies entitled Elmore to vacation of the habitual offender determination;
(2) whether fundamental error occurred in the habitual offender proceeding;
(3) whether Elmore waived the issue of effective assistance of trial counsel; and
(4) whether Elmore was denied effective assistance of appellate counsel.
Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5); Madden v. State, 656 N.E.2d 524, 525 (Ind.Ct.App.1995), trans. denied. In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting the post-conviction court's judgment. Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993). To succeed on appeal from the denial of relief, the post-conviction petitioner must show that the evidence is without conflict and leads only to a conclusion opposite that of the post-conviction court. Madden, 656 N.E.2d at 525-526.
The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Id. at 526. If an issue was available on direct appeal but not litigated, it is waived. Id. An exception to the doctrine of waiver arises when errors are so blatant and serious that to ignore them would constitute a denial of fundamental due process, i.e., fundamental error. Id. The fundamental error doctrine permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that the error was so prejudicial to the rights of the appellant that he could not have had a fair trial. Id.
In order to sustain a finding that a defendant is a habitual offender, the State must prove that the defendant was guilty of two prior unrelated felony offenses, the second of which was committed after the defendant was convicted and sentenced upon the first charge. IND. CODE § 35-50-2-8 (1985 Supp.). The State may offer proof of more than two prior convictions, with the additional convictions considered to be harmless surplusage. Spivey v. State, 638 N.E.2d 1308, 1310 (Ind.Ct.App.1994). In the instant case, the State offered proof of 14 prior convictions. After the jury determined that Elmore was a habitual offender, however, one of the 14 convictions was vacated. Elmore now claims that since one of the prior convictions has been set aside and the jury did not indicate which of the prior felonies it based the habitual offender status on, he is entitled to have the habitual offender status set aside.
In Eldridge v. State, 498 N.E.2d 12 (Ind.1986), the defendant was found to be a habitual offender after a hearing in which the State presented proof of three prior felonies. One of the three predicate felonies was subsequently set aside in a post-conviction proceeding. The defendant argued that the subsequent setting aside of one of the three predicate convictions rendered his habitual offender status void. Our supreme court rejected this argument, stating:
Although appellant might have insisted at his original trial that the jury designate which two of the three felonies they relied upon to fix his habitual offender status, he did not do so. At this late date we must assume that the jury found that appellant had been convicted, sentenced and imprisoned upon all three of the felonies charged. The fact that appellant subsequently was successful in setting aside one of the three convictions still leaves two convictions established by the evidence in the original trial.
In Nash v. State, 545 N.E.2d 566 (Ind.1989), however, the State offered evidence of three prior convictions: theft, auto banditry, and interstate transport of a motor vehicle. During jury deliberations, the defendant informed the trial court that the auto banditry conviction had been set aside by the Court of Appeals on the ground that it and the theft conviction were one and the same. The jury returned a general verdict form indicating its conclusion that the defendant was a habitual offender. The defendant argued that the determination was void because the State presented evidence of a felony which was not, in fact, a valid conviction.
Our supreme court rejected the State's argument that, notwithstanding that one of the three prior felonies was an invalid predicate felony, the other two were valid predicates upon which the habitual offender determination could rest. In so doing, the court stated the following:
Here, the jury was instructed that appellant was convicted on a single day of two felonies, theft and automobile banditry. Both satisfied the definition of prior unrelated felony conviction in the instructions since both occurred 'separate and apart from any subsequent felony conviction and sentence,' namely the later federal one for interstate transportation, and both cannot meet the correct statutory criteria in a single case. The jury received no instruction that it could not consider the theft and automobile banditry convictions as separate and unrelated and could have rationally concluded that those two convictions alone could support a verdict of habitual criminal.
Id. at 568 (Emphasis added). The court further found that Nash (where the habitual issue was brought on direct appeal) was distinguishable from Eldridge because Eldridge was a postconviction case commenced years after the defendant's conviction. The court opined: "the petitioner does not establish grounds for post-conviction relief by proving that one of three felony convictions was set aside subsequent to the original habitual offender trial where all three such convictions were alleged and sufficiently proved at that original trial and satisfied the statutory criteria of I.C. 35-50-2-8." Id. at 568-69.
In Waye v. State, 583 N.E.2d 733 (Ind.1991), the State offered evidence of three prior convictions during the habitual offender stage of trial. On a general verdict form, the jury returned a finding that the defendant was a habitual offender. The defendant appealed on the ground that one of the three prior convictions was actually a misdemeanor. The State argued that the habitual offender finding was sustainable because the jury was presented with evidence of two proper predicate felonies, notwithstanding that the third conviction was not a proper predicate. The court rejected the State's contention on the ground that the misdemeanor conviction was not admissible during the habitual offender phase for any reason, and the jury was erroneously instructed that the misdemeanor was, in fact, a felony. Id. at 735. The court reasoned that the general verdict form rendered it impossible to discern whether the jury relied on the misdemeanor in finding the defendant a habitual offender. The court concluded that " '[a] general verdict cannot stand when the case was tried and submitted on two theories, one bona fide and the other not.' " Id.
In Miller v. State, 275 Ind. 454, 417 N.E.2d 339 (1981), a case similar to Waye, the State filed a habitual offender count against Miller alleging that he had prior convictions for burglary in 1956 and 1967. Immediately before proceeding with the habitual offender proceedings, the State was allowed, over Miller's objection, to amend the habitual offender count to include convictions for rape and burglary even though Miller had not yet been sentenced upon the counts. The jury subsequently found Miller to be a habitual offender upon the charge which alleged the four...
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