Lingler v. State

• Decision Date: 13 June 1994
• Docket Number: No. 55A01-9311-PC-358,55A01-9311-PC-358
• Parties: Gary LINGLER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1102

635 N.E.2d 1102

Gary LINGLER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 55A01-9311-PC-358.

Court of Appeals of Indiana First District.

June 13, 1994.

Susan K. Carpenter, Public Defender, Anne-Marie Alward, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Dana A. Childress-Jones, Deputy Atty. Gen., Indianapolis, for appellee.

NAJAM, Judge.

STATEMENT OF THE CASE

Gary Lingler appeals from the denial of his petition for post-conviction relief following his seven felony convictions, his adjudication as an habitual offender and his sentence of 200 years imprisonment. Our supreme court affirmed Lingler's convictions on direct appeal. See Johnson v. State (1985), Ind., 472 N.E.2d 892. Lingler raises four issues as grounds for post-conviction relief which we restate as:

1. Whether the jury instruction for attempted murder was erroneous.

2. Whether Lingler's sentences violated the prohibition against double jeopardy.

3. Whether Lingler met his burden of proof as a post-conviction petitioner of demonstrating that the evidence was insufficient to prove his habitual offender status.

4. Whether Lingler was deprived of the effective assistance of counsel.

We affirm in part, reverse in part, and remand.

FACTS

We adopt the facts as stated by our supreme court in its opinion on Lingler's direct appeal:

"[O]n the evening of December 26, 1981, D.T. returned to her Greenwood, Indiana apartment after having been out with friends. As she got out of her car, a man approached her, grabbed her, and threatened her with a knife. D.T. was forced by the man with a knife into a vehicle in which two other men were seated. One of the other men threatened her with a gun. She eventually was driven to a house not far from I-65 in Indianapolis. She was forced into a bedroom where each man forced her to engage in sexual activities against her will. All three men engaged in regular sexual intercourse and two of the men also performed anal intercourse upon her. The men then promised that they would not hurt her and forced her back into the car. They did not, however, drive her back to her apartment, but instead drove to the Henderson-Ford Bridge in Morgan County, where they bound her hands and threw her off the bridge into icy waters.

D.T. was able to free herself after hitting the water and eventually was able to struggle to shore. Before she pulled herself from the icy river, she waited until a car parked on the bridge left, afraid that it contained her assailants. She then dragged herself to the road and was able to flag down a passing car. She was taken to the sheriff's office and from there to a hospital for medical treatment. From a composite sketch she gave to the police, Officer Deal was able to identify Michael Johnson. On January 17, 1982, D.T. attended a lineup and identified Michael Johnson as one of the perpetrators. At trial she unequivocally identified Michael Johnson. From photographic displays D.T. further identified Gary Lingler and positively identified him at the trial. From a second lineup she selected Ronald Johnson as looking like the driver of the car, but she was not positive of his identification. D.T. was able to identify Michael Johnson's house as appearing to be the house where she was raped, and made some identification of Ronald Johnson's automobile."

Johnson v. State (1985), Ind., 472 N.E.2d 892, 898.

DISCUSSION AND DECISION

Issue One: Attempted Murder Instruction

Lingler first argues that the trial court erred when it instructed the jury on the elements of attempted murder. Lingler claims that the instruction is insufficient under the rationale of our supreme court's decision in Spradlin v. State (1991), Ind., 569 N.E.2d 948, because the instruction does not state that Lingler must have intended to commit murder while taking a substantial step toward the commission of murder.

Here, the jury was instructed as follows:

"I.C. 35-41-5-1. ATTEMPTED Murder ... [a] person attempts to commit murder when, acting with the culpability required for commission of murder, he engages in conduct that constitutes a substantial step toward commission of the crime of murder.

The elements of ATTEMPTED Murder are that the accused must:

(1) knowingly or intentionally

(2) attempt to kill

(3) another human being"

Trial Record at 388. In Jackson v. State (1991), Ind., 575 N.E.2d 617, the supreme court interpreted its decision in Spradlin and held that an attempted murder instruction which used the phrase "attempting to kill" rather than "intending to kill" was a valid attempted murder instruction. See Jackson, 575 N.E.2d at 621. By instructing the jury that it must find the defendant attempted to kill the victim, it is logically necessary for the jury to find that the defendant intended to kill the victim. Id.

The Jackson decision applies here and controls. The jury was instructed that a required element of attempted murder is an

"attempt to kill" another human being. Thus, the jury was properly instructed that Lingler's specific intent to commit murder was a necessary element of attempted murder. The attempted murder instruction further informed the jury that attempted murder includes engaging in conduct which constitutes a substantial step toward commission of the crime of murder. Accordingly, we conclude that the jury instruction contained all of the elements of the offense of attempted murder. We find no error. ¹

Issue Two: Double Jeopardy

Lingler also maintains that his convictions and sentences for two counts of Rape with a deadly weapon, Criminal Deviate Conduct while armed with a deadly weapon and Criminal Confinement while armed with a deadly weapon violate the prohibition against double jeopardy. Lingler asserts his convictions and sentences for these offenses were all elevated to more serious felonies by the same element: the fact that he was armed with a deadly weapon. According to Lingler, he was four times placed in jeopardy for the same conduct when each felony offense was elevated by the same statutory aggravator. We cannot agree.

The prohibition against double jeopardy is violated when the defendant is convicted and sentenced for two separate crimes which are based upon the same act or the same conduct. See Derado v. State (1993), Ind., 622 N.E.2d 181, 183; Shipley v. State (1993), Ind.App., 620 N.E.2d 710, 717. However, double jeopardy is not violated by elevating the level of multiple felony charges on the basis that the defendant was armed with a deadly weapon while committing separate and distinct crimes. See Brown v. State (1994), Ind.App., 633 N.E.2d 322, 324; Barker v. State (1993), Ind.App., 622 N.E.2d 1336, 1338, trans. denied; Smith v. State (1993), Ind.App., 611 N.E.2d 144, 148, trans. denied; White v. State (1989), Ind.App., 544 N.E.2d 569, 570-71, trans. denied. Here, the evidence adduced at trial showed that Lingler confined the victim in a car, performed deviate sexual acts upon her at a residence and then raped her twice, all while armed with a deadly weapon. Each use of a deadly weapon occurred during Lingler's commission of four separate and distinct crimes. See Smith, 611 N.E.2d at 148. Thus, we conclude that Lingler was not placed in double jeopardy. ²

Issue Three: Sufficiency of Habitual Offender Evidence

Lingler next challenges at the post-conviction stage the sufficiency of the evidence offered by the State to prove his status as an habitual offender. Specifically, Lingler contends that while the State proved the dates of his two prior convictions, the State failed to prove the date on which he committed each offense. According to Lingler, his habitual offender adjudication cannot stand because the date on which he committed the second offense is an essential element of the State's burden of proof and its omission is fundamental error.

Lingler is correct when he asserts the State must prove that (1) the commission, conviction and sentencing on his first offense preceded the commission of the second offense and that (2) the commission of the principal offense followed the commission, conviction and sentencing on his second offense. See Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917. However, when a post-conviction petitioner alleges that the State failed to produce sufficient evidence of the sequence of the prior felony convictions, the petitioner must demonstrate that his convictions did not in fact occur in the required order. Id. at 918. In other words, the post-conviction petitioner, not the State, bears the burden of proof on that issue at the post- In Williams, the habitual offender information indicated only the date of each prior conviction, and the State did not prove the date on which either offense was committed. Williams, 525 N.E.2d at 1241. However, the State's evidence revealed that the information for the second conviction was filed one month before the date of the first conviction, thereby providing conclusive evidence that the convictions did not occur within the required sequence. See id. Because the petitioner for post-conviction relief met his burden of proof, our supreme court vacated the habitual offender determination.

                conviction stage.  See id. at 917-18.   The post-conviction petitioner meets his burden only if the evidence "plainly" and "clearly" shows that the two, prior convictions did not occur in the proper sequence.  Id. at 917 (citing Williams v. State (1988), Ind., 525 N.E.2d 1238)
                

In the instant case, Lingler failed to demonstrate that his prior felony convictions in fact did not occur in the proper sequence and did not support his adjudication as an habitual offender. A mere showing that the State failed to prove the date on which each offense was committed is insufficient to meet the post-conviction petitioner's burden of proof. See Weatherford, 619 N.E.2d at 917-18. As a post-conviction petitioner, Lingler has not met his burden of proof and shown fundamental...