Linthicum v. State

• Decision Date: 20 August 1987
• Docket Number: No. 585S188,585S188
• Citation: 511 N.E.2d 1026
• Parties: Philip R. LINTHICUM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1026

511 N.E.2d 1026

Philip R. LINTHICUM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 585S188.

Supreme Court of Indiana.

Aug. 20, 1987.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Philip R. Linthicum initially pled guilty to the robbery of an IGA store. He was sentenced to an enhanced term of twenty years. He later sought post-conviction relief, alleging that his plea had not been voluntary and intelligent. The trial court denied his petition, but this Court reversed and remanded the action with instructions to allow Linthicum to withdraw his former plea. Linthicum v. State (1984), Ind., 465 N.E.2d 701. The State then filed a habitual offender charge against Linthicum. After a trial Linthicum was convicted of robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1985 Repl.), and found to be a habitual offender. He was sentenced to an enhanced term of twenty years for the robbery and thirty years were added for the habitual offender finding.

Linthicum raises five issues on direct appeal of his conviction.

1) Whether the trial court erred when it denied a motion to dismiss the habitual offender charge and imposed a longer sentence after post-conviction relief had been granted;

2) Whether the trial court properly admitted identification evidence that resulted from a one-man show up;

3) Whether the defendant's statement to police was voluntarily given;

4) Whether the trial court erred in refusing to give an instruction on the defense of intoxication; and

5) Whether the trial court correctly denied a change of venue.

At trial the evidence showed that late on August 26, 1981, Linthicum, Ralph Holiday, and Edward Kays stopped at a bar in Indianapolis. They stayed for about an hour and a half and shared one pitcher of beer. The men decided to travel down to Bedford because Kays knew a woman there and Holiday had a daughter there. On the way to Bedford, the men realized they were running out of money. They began to discuss plans for robbing a store and decided on the IGA in Bedford. Once at the store, Linthicum got out of the car and walked around the building. He returned to the car reporting that some people were inside. A moment later, he left again.

In the early morning hours of August 27, 1981, night cashier Joy Hatfield saw a man walk past the front window of the IGA without entering. Some time later she saw the same man walk into the store. He walked around the store once and then came forward to the counter. Hatfield conversed with the man for about five minutes. The man lifted his shirt and showed her a gun. He said he was going to count to five. Hatfield opened the register and handed him the twenty dollar bills. The man impatiently grabbed the rest of the money and fled.

Holiday testified that when Linthicum returned to the car a second time, he was carrying cash. They split a portion of the money and headed for the Hideaway Bar.

Hatfield reported the robbery to the police. She described the robber as a white male, between 5'9"' and 5'10"', with dark hair and a scar on the right side of his face. She further stated the man was wearing an orange T-shirt at the time of the robbery. Detective Robinson of the Bedford Police Department split up his men to survey the bars in Bedford. Later Robinson saw Linthicum at the Hideaway Bar; Linthicum matched Hatfield's description. Robinson identified himself, advised Linthicum of the robbery, and asked him to accompany him back to the store. Linthicum agreed.

Back at the store, Hatfield identified Linthicum as the robber. Robinson then arrested Linthicum. At the police station Linthicum waived his rights and talked with Robinson about the robbery.

I. Imposition of a Greater Sentence After Post-Conviction Relief

Linthicum argues the trial court erred by denying a motion to dismiss the habitual offender charge and by subsequently adding thirty years to his twenty-year robbery sentence. He contends that Rule PC 1, Sec. 10, Ind. Rules of Procedure for Post-Conviction Remedies, bars the assessment of a greater sentence after a successful post-conviction action. In light of the timing of this case, we agree.

On April 1, 1982, when Linthicum filed for post-conviction relief, Rule PC 1, Sec. 10, read:

(a) If prosecution is initiated against a petitioner who has successfully sought relief under this Rule and a conviction is subsequently obtained, or

(b) If a sentence has been set aside pursuant to this Rule and the successful petitioner is to be resentenced,

then the sentencing court shall not impose a more severe penalty than that originally imposed.... ¹

This section protects important due process rights. A person convicted of an offense is entitled to pursue post-conviction remedies "without apprehension that the State will retaliate by ... subjecting him to a significantly increased potential period of incarceration." Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628, 634-635 (1974). In this case, as in Perry, there is no evidence that the prosecutor acted maliciously or in bad faith. This Court's objective, however, has been the removal of impediments which may deter a person from appealing a conviction:

The intent of Section 10 is to assure that the avenue provided by the sections of the rule preceding it may be freely traversed. This does not come to pass if the would-be petitioner, in order to utilize the rule, must pay the toll of risking a penalty more severe than the one he is presently under.

Ballard v. State (1974), 262 Ind. 482, 501, 318 N.E.2d 798, 810. The imposition of a greater sentence following post-conviction relief implicates due process even in the absence of prosecutorial abuse.

After Linthicum filed for post-conviction relief but before this Court granted his petition, the legislature adopted Ind.Code Sec. 35-50-1-5 (Burns 1985 Repl.), which provides:

If:

(1) Prosecution is initiated against a petitioner who has successfully sought relief under any proceeding for post-conviction remedy and a conviction is subsequently obtained; or

(2) A sentence has been set aside under a post-conviction remedy and the successful petitioner is to be resentenced;

the sentencing court may impose a more severe penalty than that originally imposed.

1984 Ind. Acts, P.L. 179, Sec. 3 (effective February 29, 1984). Linthicum urges that we declare this statute unconstitutional as a violation of due process.

To its credit, the State acknowledges that Rule PC 1, Sec. 10(a), barred imposition on remand of a sentence higher than Linthicum originally received. We see no need to rule on the constitutionality of Ind.Code Sec. 35-50-1-5 because the recent amendments to Rule PC 1, Sec. 10, make the two consistent. The statute provides that a sentencing court "may impose a more severe penalty than that originally imposed" and the Rule outlines the procedural conditions under which that may be done.

Because Rule PC 1, Sec. 10, barred a greater sentence, we vacate the the habitual offender finding and remand to the trial court for correction of sentence.

II. Impermissibly Suggestive Identification

Linthicum claims his identification as the robber was impermissibly suggestive in violation of due process. The procedure was unduly suggestive, he argues, because no exigent circumstances warranted the one-person show up. Linthicum suggests that a photographic array or a lineup should have been used.

While an array or a lineup may be less suggestive, not every one-person show up violates due process. We have permitted confrontations between eyewitnesses and suspects shortly after the commission of a crime because "it is valuable to have witnesses view a suspect while the image of the offender is fresh in their minds." Lamb v. State (1984), Ind., 462 N.E.2d 1025, 1027. To determine whether a particular identification is impermissibly suggestive, we consider if there is a substantial likelihood of misidentification in light of all the circumstances. Hamlet v. State (1986), Ind., 490 N.E.2d 715, 720.

The likelihood of misidentification in Linthicum's case is infinitesimal. Night cashier Hatfield saw the robber "case" the store before entering, she saw him walk around inside the store, and she talked to him for five minutes before he committed the robbery. When Detective Robinson and Linthicum entered the store later, Hatfield exclaimed "That's him!" She refused to walk any closer to the door to identify Linthicum. Detective Robinson noted by the expression on Hatfield's face that she recognized Linthicum.

The only evidence of suggestiveness was a statement made by Linthicum at the suppression hearing. He claimed that Detective Robinson said, "And this is him, isn't it?" or "Isn't this him?" to Hatfield before she could identify Linthicum. Both Robinson and Hatfield denied that the detective had an opportunity to speak before her own exclamation. Other than his self-serving statement, Linthicum presents no evidence to indicate that the identification was tainted.

The one-person show up after the crime was not a due process violation, and the trial court did not err when it allowed Hatfield's identification of Linthicum.

III. Voluntariness of Statement

Linthicum argues that the trial court should have suppressed the statement he made to the police. He was unable to understand his rights and did not voluntarily make the statement because he was intoxicated and under the influence of drugs at the time, he contends. Accordingly, he argues, the Fifth and Fourteenth Amendments to the U.S. Constitution require exclusion of his statement.

Linthicum's argument does not address the main concern of due process analysis in this area: coercive police conduct. "Absent police conduct causally related to the...