Poore v. State, 29A05-9502-PC-42
| Citation | 660 N.E.2d 591 |
| Decision Date | 22 January 1996 |
| Docket Number | No. 29A05-9502-PC-42,29A05-9502-PC-42 |
| Parties | Floyd P. POORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appeal from the Hamilton Circuit Court; Dennis Carroll, Special Judge, Cause No. 29C01-8304-CF-16.
Gregory V. Caldwell, Noblesville, for appellant.
Pamela Carter, Attorney General, Meredith J. Mann, Deputy Attorney General, Indianapolis, for appellee.
Appellant-defendant Floyd P. Poore challenges his adjudication as an Habitual Offender 1. Specifically, Poore alleges: 1) he was denied his Ind.Crim.Rule 4(B) right to a speedy trial, 2) the trial court's enhancement of his sentence because of his status as an habitual offender was erroneous because he had already served his sentence for the predicate felony; 3) he was denied the effective assistance of counsel; 4) his retrial on the habitual offender conviction was barred by double jeopardy; and 5) he was not arraigned on the habitual offender charge.
On October 20, 1983, Poore was convicted of Aiding in Burglary 2, a Class B felony, and Theft 3, a Class D felony. The next day, the State presented evidence that Poore had four previous felony convictions. As a result, Poore was adjudicated as an habitual offender and sentenced to a total of fifty-four years imprisonment. Poore appealed his convictions for aiding in burglary and theft, which were reversed by our Supreme Court in Poore v. State (1986), Ind., 501 N.E.2d 1058.
On retrial, Poore was convicted of aiding in burglary, and, on the basis of two of his previous felony convictions, was again adjudicated as an habitual offender. On November 20, 1987, the trial court sentenced Poore to twenty years for his aiding in burglary conviction enhanced by thirty years for his conviction as an habitual offender. Thereafter, Poore filed a petition for post-conviction relief, asserting that one of the two underlying felonies relied upon for his habitual offender conviction had been vacated. On April 11, 1994, the trial court vacated Poore's habitual offender enhancement.
On August 9, 1994, the State again retried Poore on the habitual offender count based upon his three remaining previous felony convictions. A jury found Poore to be an habitual offender on August 10, 1994, and the trial court enhanced his previous twenty-year sentence for aiding in burglary by thirty years, for a total of fifty years imprisonment.
Poore first contends that he was denied his right to a speedy trial as guaranteed by Crim.R. 4(B). Specifically, Poore claims the trial court erred by setting the date of and holding his retrial on the habitual offender count more than seventy days after he requested a speedy trial.
Crim.R. 4(B) provides:
If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion ...
Generally, this rule requires the State to bring a defendant to trial within seventy days in the absence of some delay caused by the defendant. Schuck v. State (1980), Ind.App., 412 N.E.2d 838, 840. Poore, however, is not entitled to the benefits of Crim.R. 4(B).
An habitual offender determination does not constitute a conviction for a separate offense; rather, it is a determination which results in an enhancement of the sentence imposed for a conviction of an underlying felony. As such, the determination occurs during a defendant's sentencing, and not during the trial for the underlying offense. This court has held that the Crim.R. 4 speedy trial requirements are not applicable to sentencing. Alford v. State (1973), 155 Ind.App. 592, 596, 294 N.E.2d 168, 170, rev'd on other grounds by Holland v. State (1976), 265 Ind. 216, 352 N.E.2d 752 (); Layne v. State (1977), 172 Ind.App. 570, 573, 361 N.E.2d 170, 172 ().
Notwithstanding the fact that an habitual offender determination occurs during sentencing, previous decisions of this court have elevated the status of an habitual offender determination beyond a mere sentencing issue. For example, we have held that the State is required to prove a defendant's habitual offender status during an evidentiary hearing by proof beyond a reasonable doubt. Lingler v. State (1994), Ind.App., 635 N.E.2d 1102, 1108, vacated in part on other grounds (1994), Ind., 644 N.E.2d 131. We have further held that, should the State fail to meet this burden, double jeopardy forbids a second trial on this issue. Id. We have also held that a defendant facing the possibility of an habitual offender enhancement is entitled to the rights enumerated in IND. CODE § 35-35-1-2, including the right to be informed that a plea of guilty waives the defendant's right to an habitual offender determination. Snyder v. State (1995), Ind.App., 654 N.E.2d 15, 19. Our willingness to elevate an habitual offender determination in this manner, however, should not be interpreted as an accession that a defendant in such proceedings is entitled to all of the rights to which defendant engaged in a trial on the underlying offense is entitled. Specifically, we refuse to find that a defendant whose habitual offender determination is being retried is entitled to a Crim.R. 4(B) speedy trial.
There are several reasons for our refusal to elevate an habitual offender determination to the status of a trial for purposes of Crim.R. 4(B). First, Crim.R. 4(B) expressly limits its remedies to a "defendant held in jail on an indictment or an affidavit...." In habitual offender determinations, the defendant is generally being held because of his conviction for the underlying felony. Thus, the rule, which provides for the discharge of a defendant who requests an early trial but is not tried within 70 days, is inapplicable. Second, we find the purposes behind the speedy trial rule are inapplicable to an habitual offender determination. Crim.R. 4(B) is intended to ensure a defendant is not denied his right to a speedy trial under the 6th Amendment to the U.S. Constitution. We have held, however, that a violation of the speedy trial rules does not necessarily indicate a violation of the defendant's constitutional rights. Hornaday v. State (1994), Ind.App., 639 N.E.2d 303, 311, trans. denied. Additionally, the speedy trial rules are intended to protect against the possibility of lost evidence or fading memories. Alford, 294 N.E.2d at 171. In an habitual offender determination, however, the evidence is limited to proof of a defendant's two prior felony convictions. Thus, lost evidence and fading memories of witnesses are not a factor, and, to the extent that they are a factor, they inure to the benefit of the defendant.
Finally, unlike the dissent, we do not find persuasive the fact that this court has consistently referred to habitual offender proceedings as "trials." As we have stated in the past, calling a rooster an eagle does not make the rooster an eagle. Indiana Republican State Com. v. Slaymaker (1993), Ind.App., 614 N.E.2d 981, 983, trans. denied. An habitual offender determination, although it contains some aspects similar to a trial, is a part of a defendant's sentencing. Thus, labeling the determination a trial does not make it a trial, with all of a trial's attendant due process safeguards.
Because Crim.R. 4(B) was not applicable to Poore's retrial on the habitual offender count, the State was only required to retry Poore within a reasonable time. State ex rel. Brumfield v. Perry Circuit Court (1981), Ind., 426 N.E.2d 692, 695. Here, Poore was retried within four months after his habitual offender conviction was vacated. Thus, we find Poore was tried within a reasonable time and was not denied his right to a speedy trial.
Poore claims that the trial court could not enhance his sentence for aiding in burglary based upon the finding that he was an habitual offender after he had already served his original sentence for that conviction 4.
A conviction as an habitual offender results in an enhancement of the original sentence rather than a separate sentence. Williams v. State (1986), Ind.App., 494 N.E.2d 1001, 1003, trans. denied, cert. denied 481 U.S. 1054, 107 S.Ct. 2191, 95 L.Ed.2d 846. Thus, even where the habitual offender determination is made subsequent to the defendant's underlying conviction, the enhancement is an integral part of the sentence imposed for the felony conviction. Id. Therefore, Poore cannot argue that he has completed his sentence for aiding in burglary, as the habitual offender enhancement is part of his sentence for that crime. See Petro v. State (1987), Ind., 506 N.E.2d 467 (). Thus, we find no error.
Next, Poore argues he was denied the effective assistance of counsel. Specifically, Poore claims his appointed counsel had insufficient time to prepare his defense.
On July 12, 1994, Poore requested the court to appoint an attorney to represent him during the retrial of the habitual offender count, which was set to begin on August 9, 1994. The court appointed counsel for Poore on August 1, 1994. Poore asserts that eight days was insufficient time for his court appointed counsel to prepare for trial.
When presented with the issue of ineffective assistance of co...
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