Griffin v. State, 1081S282

• Citation: 439 N.E.2d 160
• Decision Date: 27 August 1982
• Docket Number: No. 1081S282,1081S282
• Parties: Jimmy A. GRIFFIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 160

439 N.E.2d 160

Jimmy A. GRIFFIN, Appellant, v. STATE of Indiana, Appellee.

No. 1081S282.

Supreme Court of Indiana.

Aug. 27, 1982.

Susan K. Carpenter, Public Defender of Ind., David P. Freund, Deputy Public Defender, Kenneth M. Stroud, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Jimmy Griffin was convicted of Theft-Receiving stolen property, Ind. Code Sec. 35-43-4-2 (Burns Supp This appeal presents five issues for our review. As we find that there were only two issues where the trial court committed error, and both issues are related, it is necessary to treat only those two issues.

1982), at the conclusion of a jury trial in Rush Circuit Court on April 28, 1981. He was sentenced to thirty-four (34) years in prison, four (4) years on the underlying offense and an additional thirty (30) years for a finding of habitual offender. Defendant now appeals.

Defendant Griffin was originally charged in five counts, the first four charging him with theft and the fifth alleging that he is an habitual criminal because he has twice previously been convicted of felonies. Each of the four counts charging theft named the person from whom the property was taken and generally described the stolen property. Count V stated in total: "That the defendant, Jimmy Griffin, is an habitual offender by virtue of having accumulated at least two prior unrelated felony convictions."

Attached to this information were probable cause affidavits setting out in detail thefts committed by defendant, giving locations, victims, and property taken. Also related in the probable cause affidavit were a number of prior convictions for felonies of this defendant. These filings were made on December 8, 1980. On February 5, 1981, the information was amended as follows:

AMENDED INFORMATION

Comes now the State of Indiana by William B. Keaton, Prosecuting Attorney, and for an Amended Information herein says as follows:

Count I

Receiving Stolen Property

That on or about the 6th day of December, 1980, in the County of Rush, State of Indiana, Jimmie (sic) A. Griffin did knowingly receive the property of another person that had been the subject of theft.

That said acts constitute the felony of Receiving Stolen Property as found in I.C. 35-43-4-2(b).

/s/ William B. Keaton

William B. Keaton

Prosecuting Attorney

All parties agree that this Amended Information intended to and did take out all five of the original counts and was the only remaining charge against this defendant.

The Public Defender has raised, for the first time on direct appeal, an issue in behalf of this defendant that relates to the principal charge, i.e., receiving stolen property. This issue concerns defendant's belief that the guilty verdict is contrary to law because the State's amended information, by which Griffin was charged with the crime, fails to state the facts and circumstances necessary to apprise the defendant of the charges against him. The information on which the defendant was tried contained one count, stating nothing more than on the 6th day of December, 1980, Griffin knowingly received the property of another person that had been the subject of theft and that this act constituted a felony under Ind.Code Sec. 35-43-4-2(b). It was signed by the Rush County Prosecuting Attorney, William B. Keaton. This information is not sworn to by anyone and is only arguably approved by the Prosecuting Attorney since it is simply signed by him. There are no facts given which indicate what property was stolen and from whom, nor where he had received the alleged stolen property or from whom. As the defendant points out, this information failed in any way to give him notice of the charges he was facing so that he might properly defend himself and further, did not adequately describe the charge so that he could plead this present conviction should he subsequently be charged with receiving the same property. Therefore, the defendant argues that being tried on the amended information violated his right to due process and the error could be raised for the first time on appeal since it constituted fundamental error.

It has been clearly established that this Court can recognize fundamental error even though it was not raised at the trial, in the motion to correct errors, or even in the direct appeal to this Court if the error is so blatant that it appears on the face of the record. In Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797, Justice Hunter, writing for a unanimous Court, pronounced:

"However, as a court of review we cannot ignore a fundamental error apparent on the face of the record, Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848, for one is not to be deprived of his liberty because of carelessness on the part of the trial judge and of defense councel (sic) in failing to call to the attention of this Court a gross error which offends our concepts of criminal justice."

Id. at 289, 231 N.E.2d at 799.

This position has been reaffirmed repeatedly by this Court. Thomas v. State, (1981) Ind., 428 N.E.2d 231; Nelson v. State, (1980) Ind., 409 N.E.2d 637; Rogers v. State, (1979) Ind., 383 N.E.2d 1035; Beasley v. State, (1977) 267 Ind. 396, 370 N.E.2d 360.

The Court of Appeals, citing Young, supra, in Addis v. State, (1980) Ind.App., 404 N.E.2d 59, also stated:

"It is a fundamental tenet of pleading criminal causes that the Information must set "forth the nature and the elements of the offense charged in plain and concise language...." Ind.Code 35-3.1-1-2; see Wilson v. State, (1975) 164 Ind.App. 665, 330 N.E.2d 356, 359. This precision in pleading, which is embraced within our constitution, ³ is designed to afford all criminal defendants the safeguards guaranteed by due process of law. To permit a 'conviction upon a charge not made would be sheer denial of due process.' Thompson v. City of Louisville, (1960) 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654; De Jonge v. State of Oregon, (1937) 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278. As the United States Supreme Court in Cole v. State of Arkansas, (1948) 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644, explicitly stated:

'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal .... It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.' (emphasis added)

333 U.S. at 201, 68 S.Ct. at 517.

It is no defense that this error was not presented to the trial court or argued by appellant in her initial appellate brief. We do not believe defense counsel's ineptitude is (sic) not calling to the court's attention the fact Joretta Addis was convicted upon a charge never made authorizes us to further perpetuate this error by reviewing whether the evidence was sufficient to support a conviction upon a charge never made."

Id. 404 N.E.2d at 62-63 (footnote omitted).

The first four counts of the original information described the stolen property and named the owners of the stolen goods, but the amended information alleged only that the defendant knowingly received stolen property. There was no description of the property at all or any indication as to the identities of the rightful owners. Even though the defendant did not question the adequacy of the information at any time during the trial, the fact remains that the defendant was tried on a charge which was totally inadequate in informing him about what he should defend against and his conviction also places him in jeopardy should he be tried again for these crimes because this Court cannot determine, from the information, what was the property that defendant received as stolen goods. The trial court is accordingly ordered to set aside the defendant's conviction for receiving stolen property and to dismiss the charges.

Even though the reversal of conviction on the underlying offense also eliminates the defendant's status as an habitual criminal, we find that the trial court also erred in handling this phase of defendant's trial. Because we feel that this problem may arise in subsequent trials, we will also address the issue in this appeal.

On March 2, 1981, the State filed a pleading entitled: "Notice of Intent to Seek Habitual Offender Status." This pleading read as follows:

NOTICE OF INTENT TO SEEK HABITUAL OFFENDER STATUS

Comes now the State of Indiana by William B. Keaton, Prosecuting Attorney, and hereby notifies the Court and the defendant that the State will seek to have the defendant sentenced as an habitual offender upon conviction of the felony charged in the Amended Information filed in this cause.

The defendant, Jimmy A. Griffin, is an habitual offender by virtue of having accumulated at least two prior unrelated felony convictions.

/s/ William B. Keaton

William B. Keaton

Prosecuting Attorney

On April 27, 1981, the first day of trial but prior to the selection of a jury, Griffin filed a Motion to Dismiss the pleading filed by the State purporting to have defendant tried as an habitual offender on the grounds that the original information had been succeeded by the amended information and that Count V, charging the defendant with being an habitual offender, was no longer in effect. Defendant argued that the Notice of Intent to Seek Habitual Offender Status was not filed as a part of the information charging him with the underlying offense and therefore he was not properly charged at all; that the document does not sufficiently describe the charge to give him notice; and, further, that he was never arraigned on...