Marsillett v. State, 484S159

Decision Date22 July 1986
Docket NumberNo. 484S159,484S159
Citation495 N.E.2d 699
PartiesJim MARSILLETT, Jr., Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John P. Geberin, Bowser, Geberin & Dalton, Warsaw, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant Jim Marsillett, Jr., was convicted of theft, a class D felony, Ind.Code Sec. 35-"43-"4-"2 (Burns 1979 Repl.), and was also found to be an habitual offender, Ind.Code Sec. 35-"50-"2-"8 (Burns 1979 Repl.). The court imposed a sentence of thirty-two years, the presumptive term for theft, plus thirty years because of the recidivist finding.

Appellant filed a pro se motion to correct error raising twenty-seven issues; counsel filed a separate motion alleging twelve grounds for error. We have consolidated these issues for purposes of discussion as follows:

1) whether the evidence is sufficient to sustain appellant's theft conviction;

2) whether the trial court must enter the judgment of conviction for a class D felony prior to commencement of habitual offender proceedings;

3) whether the prosecutor arbitrarily used his discretion to file the habitual offender count to coerce appellant to forego his constitutional rights;

4) whether the Indiana habitual offender statute violates a defendant's constitutional rights;

5) whether a sentence enhancement of thirty years constitutes vindictive justice;

6) whether the trial court must consider mitigating circumstances when it imposes the presumptive term;

7) whether the trial court erred by denying appellant's motion for mistrial;

8) whether trial counsel's alleged ineffective assistance denied appellant a fair trial;

9) whether one juror's alleged bias denied appellant of a trial by an impartial jury;

10) whether the victim's in-court identification of defendant was tainted by the prosecutor's leading questions;

11) whether the prosecutor's comments during closing arguments constituted fundamental error;

12) whether the court erred by communicating with the jury in defendant's absence, and

13) whether the trial court erred by allowing the jury to view documentary evidence during deliberations.

Several of these questions have been settled by this Court on grounds identical to those argued in this appeal. Reviewing a recent appeal from the denial of post-conviction relief, we held that the Public Defender is not obligated to raise on appeal from a denial for post-conviction relief every issue that the petitioner requests be raised when the issue is clearly not a proper subject for post-conviction relief or is deemed to be a frivolous issue. Music v. State (1986), Ind., 489 N.E.2d 949. In doing so, we acknowledged a U.S. Supreme Court decision which indicated that an indigent defendant does not have a constitutional right to compel appointed counsel to raise issues which counsel, in his professional judgment, determines should not be presented. Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987. In Jones, Chief Justice Burger wrote that the Supreme Court:

recognized the superior ability of trained counsel in the 'examination into the record, research of the law, and marshalling of arguments on [the appellant's] behalf.' Douglas v. California [372 U.S. 353, 9 L.Ed.2d 811, 83 S.Ct. 814 (1963) ]

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[E]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.

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A brief that raises every colorable issue runs the risk of burying good arguments--those that, in the words of the great advocate John W. Davis, 'go for the jugular,'--in a verbal mound made up of strong and weak contentions.

Jones, 463 U.S. at 751, 753, 103 S.Ct. at 3312, 3313, 77 L.Ed.2d at 993, 994.

The case at bar is the definitive example which underscores these decisions. Recitation of long-settled issues does nothing to enhance consideration of whatever stronger grounds an appellant may have for relief.

These are the facts which tend to support the trial court's judgment. In July of 1983, appellant entered into a contract with Leander Rose to paint his house. The original contract price was $1,100, but the parties later agreed to add $100 for the purchase of supplies. The contract was written by appellant because neither Leander Rose nor his wife, Nova Rose, were able to read or write. Appellant also drafted a $1,200 check on Rose's account in payment for the work, and Mr. Rose signed the check.

While appellant was working on the job, he asked Mr. Rose for a ten dollar loan, saying that he needed the money for gas expenses incurred traveling to work. Once again appellant filled out the information necessary for the check, and Mr. Rose signed it. Mr. Rose was surprised when he found out later that his cancelled check indicated that the amount was $1,000 rather than $10. The date, payee (appellant), and payor (Rose) were written in black ink while the dollar amounts were written in blue ink. The information charged appellant with the theft of the difference, $990.

Nova Rose, who was present when her husband and appellant agreed on the painting project, identified appellant in court as the man who contracted with her husband. She also testified about a discussion she had with appellant about a second contract to work on the interior of the house. This project was contingent upon Mrs. Rose's plan to sell her trailer, which never came to pass. Mr. Rose also testified that appellant was never hired under a second contract.

I. Sufficiency of the Evidence

Appellant argues that the trial court erred by denying his motion for a directed verdict because the evidence is insufficient to sustain his conviction for theft. Specifically, he claims that the State did not prove beyond a reasonable doubt either unauthorized control or intentional deprivation, both elements of the offense of theft. 1 He maintains that the State did not prove that his receipt of the $990 from Leander Rose was unauthorized. He also contends that he received this money pursuant to a second contract. Finally, appellant claims he did not deprive Rose of the use of his money because Rose would have received the benefits of this contract.

As a court of review, we neither reweigh the evidence nor judge the credibility of witnesses. Rather, we consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be overturned. McBrady v. State (1984), Ind., 460 N.E.2d 1222. The trial court did not err by denying appellant's motion for a directed verdict because the evidence is clearly sufficient to sustain his conviction. 2

Appellant first claims that his control over the money was authorized. Unauthorized control is defined to include situations where control over the property of another person is exerted without the other person's consent, or in a manner or to an extent which exceeds the scope of that person's consent. Ind.Code Sec. 35-"43-"4-"1 (Burns 1979 Repl.). In this case, defendant was authorized by Leander Rose to write a check for ten dollars. Appellant exceeded the scope of Rose's consent by writing the check for one thousand dollars instead.

Appellant also claims there was no intentional deprivation of the use of Rose's property because he would have received the benefits when the second contract was completed. The intent to deprive the owner of his property may be inferred from the unauthorized possession of the property. Tuggle v. State (1969), 253 Ind. 279, 252 N.E.2d 796. The jury could infer that defendant intended to deprive Leander Rose of the $990 which was in excess of the $10 check which appellant was authorized to write.

II. Judgment of Conviction

Appellant argues that the trial court erred by proceeding to the habitual offender phase of the bifurcated trial without first ordering and reviewing a presentence report and imposing sentence on the present offense. He maintains the trial court should have determined whether to enter judgment for a class D felony or a class A misdemeanor prior to the commencement of the recidivist proceedings.

After the jury returned its verdict for a class D felony, the prosecutor and defense counsel discussed this issue in the judge's chambers. Appellant requested the court to delay the habitual offender proceedings until a presentence report could be drafted and reviewed by the court.

The trial court may enter a judgment of conviction for a class A misdemeanor and sentence accordingly when the jury has found the defendant guilty of a class D felony. Ind.Code Sec. 35-"50-"2-"7(b) (Burns 1979 Repl.). This statutory provision does not require the court to make this decision prior to the commencement of habitual offender proceedings. Rather, the court must state its reasons for the choice made whenever it exercises the power granted.

Appellant cites a decision of this Court suggesting that the "better practice" is for the trial court to determine whether to withhold judgment for a class D felony and enter judgment for a class A misdemeanor after considering the presentence report and arguments of counsel, but prior to the habitual offender proceedings. Collins v. State (1981), Ind., 415 N.E.2d 46. This procedure would avoid subjecting the defendant unnecessarily to the recidivist phase of the trial. It does have certain other disadvantages (such as reassembling a jury three or four weeks later) and we have held that the trial court's failure to follow this procedure does not constitute reversible error. Funk v. State (1981), Ind., 427 N.E.2d 1081.

Appellant also argues that it is reversible error to impose judgment of the theft conviction before receiving the presentence report. He maintains that the trial court...

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