Mickens v. State, 1284
| Decision Date | 26 June 1985 |
| Docket Number | No. 1284,1284 |
| Citation | 479 N.E.2d 520 |
| Parties | Carl E. MICKENS, Appellant, v. STATE of Indiana, Appellee. S 499. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, Sheila K. Zwickey, Sp. Asst., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant appeals from the denial of post-conviction relief. We affirm the trial court.
The facts are: Appellant was originally convicted of Burglary, a Class B felony, and was found to be an habitual offender. He was given a seventeen (17) year sentence for the burglary offense which was enhanced by thirty (30) years based on appellant's habitual offender status. He was therefore sentenced to a total of forty-seven (47) years.
The conviction was affirmed on appeal by an opinion published in 439 N.E.2d 591.
In this appeal from the denial of post-conviction relief, appellant raises the following questions. He claims the trial court erred by finding the unsworn habitual offender notice filed by the State was a proper charging instrument and that the court further erred in finding the issue was waived by failure to pursue the question on direct appeal.
A post-conviction relief proceeding is not a substitute for an appeal. It is to be used for raising issues which were unknown or not available at trial. Gee v. State (1984), Ind., 471 N.E.2d 1115. This issue was well known to appellant during his first trial and was adequately covered by trial counsel at that time. The fact that trial counsel did not see fit to raise this question on appeal will be dealt with at a later point in this opinion. The trial court did not err in holding that this matter had been waived.
Appellant claims the trial court erred in finding Count I was properly amended and the court further erred by holding the issue was waived by failure to pursue it on direct appeal. The trial court was correct in its observation that the matter had been waived by failure to assign it as error on appeal. Gee, supra. This matter will be dealt with at greater length later in this opinion.
Appellant claims the trial court erred by finding the probable cause affidavit was sufficient to support appellant's arrest and that the court erred in finding the matter had been waived by failure to pursue it on appeal. Again the trial court was correct in its finding of waiver pursuant to Gee, supra.
Appellant claims the trial court erred by finding appellant's appointed counsel was effective in his trial and appellate representation. Appellant claims trial counsel was ineffective in his failure to raise the question concerning the habitual offender notice and its lack of verification. An habitual offender charge was first filed against the appellant as Count II of the original information. However, at a later time, the prosecutor, after discussion with the court, amended the habitual offender charge setting out four prior accumulated felony convictions along with specific information relating thereto. This amendment was signed by the prosecutor but was not sworn to by him.
Appellant cites Griffin v. State (1982), Ind., 439 N.E.2d 160 and Anderson v. State (1982), Ind., 439 N.E.2d 558 to support his position that an habitual offender charge is subject to the rules governing the charging of criminal offenses. Thus the habitual offender count is part of the charging instrument and must be sworn to. In both Griffin and Anderson the charge was not only unsworn but in both cases the charges lacked the allegations of the prior felonies which the State would seek to prove at trial and therefore the appellants could not adequately defend against the habitual offender charges.
In the case at bar the original count concerning the habitual offender charge had in fact been sworn to. The statute was substantially complied with in the amendment. See Ind.Code Sec. 35-3.1-1-2(b). The prior felonies were specifically described. There was nothing about this situation that could possibly have misled the appellant concerning the habitual offender charge. Had trial counsel properly raised the question prior to trial, the State could easily have remedied the situation. The matter therefore does not constitute incompetence on the part of the attorney in failing to raise the question on appeal.
As far as appellant's attorney failing to raise the question on appeal concerning the amendment of Count I of the charging affidavit, we find no incompetence. The original affidavit charged a Class B felony; however, the language of the charge would indicate that it was a Class C felony. When this was called to the attention of the court and the prosecuting attorney, the prosecutor then...
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Payne v. State
...has a notable subsequent history. Our Supreme Court affirmed the denial of Mickens' first petition for post-conviction relief, (1985), 479 N.E.2d 520. Mickens appealed the denial of a second PCR petition, which the Court of Appeals affirmed, (1991), 579 N.E.2d 615. Our Supreme Court subsequ......
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McGrew v. State
...for a search warrant is supplied by an informant, the affidavit must also set forth the reliability of the information. Mickens v. State (1985) Ind., 479 N.E.2d 520, 523, reh'g denied. However, when the information is provided by the victim of a crime, the affidavit of the police officer se......
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Mickens v. State
...to object to the improper verification. Our supreme court affirmed the post-conviction court's denial of relief in Mickens v. State (1985), Ind., 479 N.E.2d 520 (Mickens II ). In 1988, Mickens filed a second petition for post-conviction relief, alleging several trial court errors, including......
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Mickens v. Duckworth
...hearing that resulted in a denial of relief on March 5, 1984. This denial was appealed to the Supreme Court of Indiana, Mickens v. State, 479 N.E.2d 520 (Ind.1985), and was affirmed in a unanimous opinion by Chief Justice Givan with Justice Hunter not The petitioner alleges here three groun......