Moore v. State, 45A03-0108-CR-282.
| Decision Date | 04 June 2002 |
| Docket Number | No. 45A03-0108-CR-282.,45A03-0108-CR-282. |
| Parties | Elijah MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Charles E. Stewart, Jr., Crown Point, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Elijah Moore appeals the trial court's denial of his motion to dismiss the habitual offender proceedings against him. We affirm.
Moore raises one issue for our review, which we restate as whether Article I, section 14 of the Indiana Constitution bars re-trial of the habitual offender allegation against him following a reversal on the grounds of insufficient evidence.
In 1982, Moore robbed four people and was subsequently charged with four counts of robbery, all Class B felonies, and was further alleged to be an habitual offender. A jury found Moore guilty on all counts and also determined that he was an habitual offender. He was sentenced to a period of twenty years for each count of robbery, said sentences to run concurrently, and his sentence was enhanced an additional thirty years pursuant to the habitual offender finding. On direct appeal, our supreme court affirmed Moore's convictions and the habitual offender determination. Moore v. State, 485 N.E.2d 62 (Ind.1985).
Moore subsequently sought post-conviction relief based in part on an allegation of insufficient evidence to show that he was an habitual offender. This court, in an unpublished decision, affirmed the post-conviction court's denial of relief. Moore v. State, No. 45A04-9501-PC-20, 651 N.E.2d 357 (Ind.Ct.App. June 23, 1995), trans. denied. We held that Moore had failed to show that his predicate convictions did not occur in the proper sequence, citing Weatherford v. State, 619 N.E.2d 915 (Ind.1993), for the proposition that when a post-conviction petitioner alleges that the State failed to produce sufficient evidence of the sequence of the predicate felony convictions, the petitioner must demonstrate that his convictions did not in fact occur in the required order. Moore, 45A04-9501-PC-20, slip op. at 4 (citing Weatherford, 619 N.E.2d at 918).
Moore then sought federal habeas corpus relief on this issue. The district court denied relief, finding that Moore had procedurally defaulted his claim of insufficient evidence. Moore v. Parke, 968 F.Supp. 1338 (N.D.Ind.1997). The Seventh Circuit, however, held that Weatherford did not provide an adequate state ground to bar federal review because Moore's procedural default occurred prior to the Weatherford decision. Moore v. Parke, 148 F.3d 705, 710 (7th Cir.1998). It then held that the State was required to but did not prove at Moore's trial the sequence of the predicate offenses and therefore, Moore's due process rights were violated. Id. at 711. The case was remanded to the district court with directions to grant the petition for habeas corpus relief. Id.
Several days after the Seventh Circuit decided Moore's case, the United States Supreme Court handed down Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), which held that the federal double jeopardy clause does not apply to noncapital sentencing proceedings. Moore v. Anderson, 222 F.3d 280, 282 (7th Cir.2000) (citing Monge, 524 U.S. at 734,118 S.Ct. 2246). The State petitioned the Seventh Circuit for rehearing and both parties addressed Monge and whether the Indiana Constitution barred a retrial. The Seventh Circuit denied the State's petition without comment. Id. On remand, Moore argued that the Seventh Circuit's denial of rehearing suggested that Monge was inapplicable to his case; the State argued that Monge allowed a retrial. Id. The district court determined that the Seventh Circuit's mandate did not contemplate a retrial and issued an unconditional writ of habeas corpus with regard to the imposition of sentence on Moore as an habitual offender. Id. at 282-83. The State then appealed to the Seventh Circuit.
The Seventh Circuit determined that the unconditional mandate to the district court to grant Moore's habeas corpus petition did not address the issue of double jeopardy and therefore the district court was not prohibited by the law of the case doctrine or by the earlier mandate from applying Monge. Id. at 284. The court then rejected Moore's contention that the non-retroactivity principle of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), barred the State from invoking Monge in its quest to retry Moore. The non-retroactivity principle favors only the State and Moore was not entitled to object to the application of a new rule to an old case. Id. at 285. Monge held that "the guarantee against double jeopardy neither prevents the prosecution from seeking review of a sentence nor restricts the length of a sentence imposed upon retrial after a defendant's successful appeal...." 524 U.S. at 730, 118 S.Ct. 2246. The Seventh Circuit noted that this implies "that the Double Jeopardy Clause should not bar the retrial of the factual predicates for a sentencing enhancement." Moore, 222 F.3d at 285. Thus, the district court's grant of the unconditional writ of habeas corpus was vacated and the case was remanded with instructions to issue a new writ granting Moore relief but providing the State 180 days within which to retry Moore as an habitual offender. Id. at 286. The court specifically declined to address the issue of whether the Indiana Constitution bars a retrial of the habitual offender enhancement. Id. On remand, the district court entered the following order on June 8, 2000:
Pursuant to the opinion issued by the [Seventh Circuit] Court of Appeals on June 5, 2000, this court now issues a new conditional writ granting this petitioner relief ... regarding the imposition of sentence upon him as a[sic] habitual offender. This is provided that the State of Indiana shall have 180 days within which to retry this petitioner as a[sic] habitual offender.
Amended Appendix of Appellant at 317. The State filed its amended information against Moore alleging him to be an habitual offender on November 8, 2000. Moore moved to dismiss the information, contending that the insufficient evidence determination precluded a retrial under the Indiana Constitution. The trial court denied this motion, and the habitual offender charge was tried to a jury. The jury determined that Moore was an habitual offender and his sentence on one of his robbery convictions was enhanced by thirty years. Moore now appeals.
Moore contends that the trial court erred in denying his motion to dismiss the habitual offender charge because Article I, section 14 of the Indiana Constitution bars a retrial of the habitual offender charge when it was earlier reversed on the basis of insufficient evidence.
Indiana Code section 35-34-1-8(f) provides that a criminal defendant has the burden of proving, by a preponderance of the evidence, all facts necessary to support a motion to dismiss. See Lewis v. State, 755 N.E.2d 1116, 1121 (Ind.Ct.App.2001)
. Because Moore is appealing a negative judgment, we will reverse the trial court's ruling "only if the evidence is without conflict and leads inescapably to the conclusion that [he] was entitled to dismissal." Wright v. State, 700 N.E.2d 1153, 1155 (Ind.Ct.App.1998).
Moore acknowledges that under Monge, he has no federal constitutional double jeopardy claim in this instance. He claims, however, that Article I, section 14 of the Indiana Constitution should be, and in fact, has been interpreted to preclude the retrial of an habitual offender allegation where a previous habitual determination was reversed for insufficient evidence. We must disagree.
Moore cites several Indiana cases in support of his position. First, he notes, and we agree, that the double jeopardy clause of the Indiana Constitution is to be interpreted separately from its federal counterpart. Compare Richardson v. State, 717 N.E.2d 32, 49-50 (Ind.1999)
( ); and Bald v. State, 766 N.E.2d 1170 (Ind.2002) () with United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) () and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ().
However, we disagree with Moore's assertion that we are not writing on a clean slate. Moore cites Bell v. State, 622 N.E.2d 450 (Ind.1993) and Phillips v. State, 541 N.E.2d 925 (Ind.1989), for the proposition that our supreme court has already decided that where the State fails to prove an habitual offender charge by sufficient evidence, the Indiana Constitution bars a retrial. Bell and Phillips were both decided during that time in which Indiana's double jeopardy analysis and...
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