Johnican v. State, 82A01-0305-CR-196.
| Decision Date | 03 March 2004 |
| Docket Number | No. 82A01-0305-CR-196.,82A01-0305-CR-196. |
| Parties | Curtis Ray JOHNICAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jon Aarstad, Vanderburgh County Public Defender Agency, Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Curtis R. Johnican appeals his sentence. In particular, Johnican argues his sentence is erroneous because: (1) the State did not file his habitual offender enhancement within ten days of his omnibus date or show good cause for failing to make a timely filing; (2) the trial court improperly attached his habitual offender enhancement to his conviction for possession of cocaine, which is proscribed by Indiana Code § 35-50-2-8(b); and (3) his aggregate sentence exceeds the allowable sentence pursuant to Indiana Code § 35-50-1-2(c) because his possession of cocaine was not part of the same criminal episode as his other offenses. We find that the trial court did not err by allowing the State to belatedly file the habitual offender count or by determining that the offenses were part of a single criminal episode. Because we find that the trial court improperly attached the habitual offender count to a conviction ineligible for enhancement, however, we remand for re-sentencing consistent with this opinion.
During the early morning hours of August 31, 2002, Officers Dan Hoehn and Kevin Day of the Evansville Police Department were on-duty in their marked patrol car when they observed Johnican walking across the street. Because the officers were aware that there was an outstanding warrant for Johnican, Officer Hoehn ordered Johnican to stop so that the officers could speak with him. Johnican ignored Officer Hoehn's order and continued walking. Officer Hoehn then exited his patrol car and yelled to Johnican a second time to stop so that the officers could speak with him. Johnican took a few more steps, stopped, pulled a gun from his shorts, and pointed it at Officer Hoehn. Johnican pulled the trigger, but the gun did not fire. As Officer Hoehn attempted to seek cover, Johnican aimed the gun at him a second time and pulled the trigger. Again, the gun did not fire. To alert Officer Day, Officer Hoehn yelled, "Gun, Gun." Tr. p. 143. In response, Johnican aimed the gun at Officer Day and pulled the trigger. Yet again, the gun did not fire. Johnican looked down at the gun and then ran from the officers. The officers called for backup as they pursued Johnican on foot.
Johnican turned and pointed his gun at the officers again as he attempted to flee from them. In response, Officer Hoehn fired a shot at Johnican, which missed. As Johnican attempted to return fire, Officer Hoehn again attempted to fire a shot at Johnican. Officer Hoehn's gun, however, malfunctioned. As Officer Day came upon Officer Hoehn, he observed Johnican aiming his weapon at Officer Hoehn and fired a single bullet into Johnican's upper chest. Johnican then dropped his gun and continued to flee. A bystander tackled Johnican but released him after Johnican informed the bystander that he was "carrying dope." Tr. p. 298. A few moments later, the officers apprehended Johnican.
The officers provided first aid to Johnican until emergency medical personnel arrived and transported Johnican to the hospital. As hospital staff removed Johnican's clothing, the officer who accompanied Johnican to the hospital observed a small plastic baggy containing an off-white, rock-like substance fall out of Johnican's shorts. The substance was subjected to analysis and determined to be 0.85 grams of crack cocaine. When detectives questioned Johnican about the incident with Officers Hoehn and Day, he told them that the reason he ran from the police was because he had some cocaine in his possession and did not want to go back to jail. Johnican also explained that he pointed the gun at the officers because he had a terrible cocaine addiction problem and hoped that the officers would shoot him.
On September 5, 2002, the State charged Johnican with seven counts: two Class A felony counts of Attempted Murder of a police officer;1 one Class B felony count of Unlawful Possession of Firearm by Serious Violent Felon;2 one Class B felony count of Possession of Cocaine;3 two Class D felony counts of Pointing Firearm at Another Person;4 and one Class D felony count of Resisting Law Enforcement.5 Johnican's initial hearing was held on September 6, 2002, at which time the trial court set an omnibus date of November 8, 2002.6
On February 25, 2003, the State moved the trial court to permit it to amend the charging information by adding a habitual offender count. The State explained to the trial court that it did not file the habitual offender account sooner because the State anticipated entering into a plea agreement with Johnican and that as soon as the State realized that Johnican would not agree to plea, it filed its motion to amend the information to add the habitual offender count. Additionally, the State submitted a copy of its September 5, 2002, written offer to Johnican. The offer provided that the State would not file a habitual offender count based on Johnican's previous felony convictions for carrying a handgun without a permit by a felon and forgery. After the trial court allowed the amendment, Johnican moved for a continuance, which the trial court granted. The trial began on March 31, 2003. Following the four-day trial, the jury found Johnican guilty of possession of cocaine, one count of pointing a loaded firearm at another person, and one count of resisting law enforcement. Subsequently, the jury determined that Johnican was a habitual offender. Based on these convictions and the determination that Johnican was a habitual offender, the trial court imposed an aggregate sentence of fifty-six years. In particular, the trial court imposed the maximum sentence of twenty years for his possession of cocaine conviction, which it enhanced by thirty years based on Johnican's adjudication as a habitual offender; the maximum sentence of three years for his Class D felony pointing a loaded firearm conviction; and the maximum sentence of three years for his Class D felony resisting law enforcement conviction, which the trial court ordered to be served consecutively. Johnican now appeals.
Johnican appeals his sentence, claiming that his fifty-six year sentence violates both the general habitual offender statute, Indiana Code § 35-50-2-8(b), and the consecutive sentencing statute, Indiana Code § 35-50-1-2(c). Further, Johnican claims that the trial court erred by allowing the State to belatedly file its habitual offender count. At the outset we note that sentencing decisions are entrusted to the sound discretion of the trial court and will be reversed only upon a showing of manifest abuse of that discretion. Beck v. State, 790 N.E.2d 520, 522 (Ind.Ct.App. 2003). Broad discretion notwithstanding, a trial judge is required to act within statutorily prescribed limits when making sentencing determinations. See Jones v. State, 789 N.E.2d 1008, 1011 (Ind.Ct.App. 2003), reh'g denied, trans. denied. Thus, although sentencing is generally left to the discretion of trial courts, the Court of Appeals is duty bound to correct sentences that violate the trial court's statutory authority. Monyhan v. State, 780 N.E.2d 1187, 1189 (Ind.Ct.App.2003).
Johnican argues that the trial court erred by allowing the State to belatedly amend the charging information to add a habitual offender count without showing good cause for the delay. Indiana Code § 35-34-1-5(e) permits an amendment of an indictment or information to include a habitual offender enhancement within ten days of the omnibus date. Once the omnibus date is set, it remains the omnibus date for the case until final disposition, unless specific statutory factors are met.7 Ind.Code § 35-36-8-1(d); see also Sappenfield v. State, 462 N.E.2d 241, 243-44 (Ind.Ct.App.1984) (). Upon a showing of good cause, however, the trial court may permit the filing of a habitual offender charge at any time before the commencement of the trial. Ind.Code § 35-34-1-5(e).
Here, the trial court set the omnibus date for November 8, 2002. The State, however, did not file its habitual offender count until February 25, 2003 well beyond the ten-day period established for such filings by Indiana Code § 35-34-1-5 but before the trial commenced on March 31, 2003. The State explained the reason it did not amend the charging information within the statutorily prescribed period was because, as part of the plea negotiations with Johnican, the State had promised not to file a habitual offender count based on Johnican's previous felony convictions. As soon as the State realized that Johnican was not going to agree to plea, the State filed its amendment, which sought to add a habitual offender count based on two of Johnican's previous, unrelated felony convictions. Johnican objected to the untimely filing, but following a hearing on the matter, the trial court determined the delay in amending the information was justified by good cause. Specifically, the trial court found:
In any event, the State has shown "good cause" for the late filing. Prior to the original omnibus date, the State tendered a plea offer to ... Johnican in which the State offered to forego the filing of the habitual offender enhancement provided he plead guilty to Counts 1 through 4 of the Information. The plea negotiations continued up to or very shortly prior to the filing of the enhancement. Johnican either refused to accept the plea bargain offer or rejected the...
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