Magness v. State
| Decision Date | 03 February 2016 |
| Docket Number | No. 49A02–1505–CR–322.,49A02–1505–CR–322. |
| Citation | 46 N.E.3d 1283 (Table) |
| Parties | Steven MAGNESS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Ellen M. O'Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
BARNES
, Judge.
[1] Steven Magness appeals his status as an habitual offender. We reverse and remand.
[2] Magness raises two issues, which we restate as:
[3] On November 26, 2014, the State charged Magness with Level 6 felony residential entry, Level 6 felony intimidation, Class A misdemeanor theft, and Class A misdemeanor battery resulting in bodily injury. On March 24, 2015, the State filed an allegation that Magness was an habitual offender, and Magness objected to the filing. A jury trial was held on March 25, 2015, and the jury found Magness guilty of Level 6 felony residential entry and Class A misdemeanor battery resulting in bodily injury. The jury also found that Magness was an habitual offender. The trial court sentenced Magness to two years in the Department of Correction enhanced by four years for his status as an habitual offender. Magness now appeals.
[4] Magness challenges the State's belated habitual offender filing. Indiana Code Section 35–34–l–5(e) provides:
An amendment of an indictment or information to include a habitual offender charge under IC 35–50–2–8
must be made at least thirty (30) days before the commencement of trial. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial if the amendment does not prejudice the substantial rights of the defendant. If the court permits the filing of a habitual offender charge less than thirty (30) days before the commencement of trial, the court shall grant a continuance at the request of the:
The habitual offender charge here was filed one day before trial and was not timely.
[5] Our supreme court has held that “ ‘once a trial court permits a tardy habitual filing, an appellant must move for a continuance in order to preserve the propriety of the trial court's order for appeal.’ “ Kidd v. State, 738 N.E.2d 1039, 1042 (Ind.2000)
(quoting Williams v. State, 735 N.E.2d 785, 789 (Ind.2000) ). There is no exception to this rule even where a defendant has asked for a speedy trial. Id. If the defendant needs additional preparation time, then he or she may seek a continuance of the habitual offender phase of the proceedings without affecting his rights to a speedy trial on the main charge. Id. Although Magness objected to the filing, he did not request a continuance. Because Magness did not move for a continuance, this issue is waived for review.1
See id. ().
[6] Next, Magness argues that the evidence is insufficient to sustain the finding that he is an habitual offender. When an habitual offender finding is challenged, we do not reweigh the evidence but rather look at the evidence in the light most favorable to the verdict. White v. State, 963 N.E.2d 511, 518 (Ind.2012)
. “If an appellate court deems the evidence insufficient, [an] habitual-offender determination must be vacated.” Id.
[7] Under Indiana Code Section 35–50–2–8(a)
, the State “may seek to have a person sentenced as a habitual offender for a felony by alleging, on one (1) or more pages separate from the rest of the charging instrument, that the person has accumulated the required number of prior unrelated felony convictions in accordance with this section.” At the time of Magness's offense, subsection (d) provided:
(footnote added).
[8] The habitual offender charging information alleged that Magness had previously been convicted of three prior, unrelated felonies and not more than ten years had elapsed between the time that he was released from his sentence to the instant offense. The three prior, unrelated felonies included a September 12, 2005 conviction for Class D felony criminal recklessness, a November 29, 2007 conviction for Class D felony obstruction of justice, and an October 6, 2009 conviction for Class C felony battery.
[9] Magness first argues that the prior arrests were not sufficiently linked to him to prove that he committed the prior offenses. He points out that Exhibit 6, which was the identification card containing Magness's thumbprint, was not admitted into evidence. However, a defendant's identification “can be independently established by fingerprint testimony.” Straub v.. State, 567 N.E.2d 87, 93 (Ind.1991)
. Matthew Weisjahn, the fingerprint examiner, testified that he compared Magness's thumbprint to the arrest prints for the prior convictions and that the fingerprints on all of the records matched. We conclude there was sufficient evidence to show that Magness was the same person convicted in the prior offenses.
[10] Next, Magness argues that the evidence was insufficient to show that the prior offenses were unrelated. A person has accumulated two (2) or three (3) prior unrelated felony convictions for purposes of Indiana Code Section 35–50–2–8
only if:
. To be “unrelated,” the commission of the second felony must be subsequent to the sentencing for the first, and the sentencing for the second felony must have preceded the commission of the current felony for which the enhanced sentence is being sought. Warren v. State, 769 N.E.2d 170, 171 n. 2 (Ind.2002). “Failure to prove the proper sequencing requires that the habitual offender determination be vacated.” Id.
[11] During the habitual offender phase of the trial, the State presented an arrest report and the judgment of conviction concerning the criminal recklessness conviction. Those documents indicated that the offense was committed on January 5, 2004, and that Magness was sentenced on September 12, 2005. The State also presented evidence of an arrest report and a judgment of conviction concerning the obstruction of justice conviction. Those documents indicated that Magness was arrested pursuant to a warrant on October 24, 2007, and that he was sentenced on November 29, 2007. None of the documents presented by the State, however, indicate the date of the obstruction of justice offense. The State then presented an arrest report and a judgment of conviction concerning the battery conviction. Those documents indicated that Magness committed the offense on March 29, 2009, and that he was sentenced on October 6, 2009.
[12] Magness properly points out that, because the State failed to present evidence concerning the date of the obstruction of justice offense, there was no evidence that “the second prior unrelated felony conviction was committed after commission of and sentencing for the first prior unrelated felony conviction.” I.C. § 35–50–2–8(f)
. The State, however, argues that the jury could reasonably infer that the offense took place after September 12, 2005, because he was not arrested until October 24, 2007.
[13] Although it is certainly possible that the obstruction of justice offense took place...
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