Seay v. State
| Decision Date | 08 July 1998 |
| Docket Number | No. 82S01-9701-PC-26,82S01-9701-PC-26 |
| Citation | 698 N.E.2d 732 |
| Parties | Garry T. SEAY, appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
| Court | Indiana Supreme Court |
Garry Seay seeks post-conviction relief from a trial court's determination that he was a habitual criminal. His claim arises under Article I, § 19, of the Indiana Constitution: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."
In a bifurcated proceeding, Seay was convicted of two counts of dealing in drugs and then found to be a habitual offender. 1 During the habitual offender phase, the court instructed the jury that it was the judge only of the facts, and that it was restricted to determining the facts only and not the law. Seay was found guilty of being a habitual offender, causing his sentence to be enhanced by thirty (30) years. This Court affirmed the convictions and sentence. Seay v. State, 529 N.E.2d 106 (Ind.1988).
Seay now seeks post-conviction relief on two related grounds: (1) that during the habitual offender proceeding the trial court committed fundamental error in instructing the jury that the jury was the judge only of the facts and not of the law; and (2) that Seay received ineffective assistance of counsel when trial counsel failed to object to this instruction. The post-conviction court denied relief and the Court of Appeals affirmed. Seay v. State, 673 N.E.2d 475 (Ind.Ct.App.1996). In so holding, the Court of Appeals concluded that (1) the trial court had erred in giving the instruction that the jury was the judge only of the facts but that (2) this error was not fundamental nor was Seay denied the effective assistance of trial or appellate counsel to which he was entitled when they failed to raise the issue at trial and on direct appeal, respectively. Id. at 480-481.
We previously granted transfer and now adopt the Court of Appeals opinion regarding the applicability of art. I, § 19, to habitual offender proceedings and summarily affirm the Court of Appeals's findings that the error was not fundamental and that trial and appellate counsel were not ineffective.
Seay contends he is entitled to post-conviction relief because the trial court instructed the jury during the habitual offender phase of his trial that the jury was the judge of only the facts and not the law. 2 Seay argues that such instructions contradict not only art. I, § 19, of the Indiana Constitution, 3 but also contradict Indiana Code § 35-37-2-2(5) (Supp.1985). 4
A person convicted of a felony may be sentenced as a "habitual offender" in certain circumstances. Ind.Code § 35-50-2-8 (Supp.1985). 5 Such sentencing has extremely severe consequences--it can add as many as thirty (30) years to the sentence otherwise imposed. Id. To seek such a sentence, the State, at the time it charges a person with a felony, must also charge that the accused has accumulated two prior unrelated felony convictions. Ind.Code § 35-50-2-8(a). If the accused is convicted of the charged felony in a jury trial, the jury reconvenes for the habitual offender sentencing phase. Ind.Code § 35-50-2-8(b). The State must prove beyond a reasonable doubt that the defendant has accumulated two prior unrelated felony convictions. Ind.Code § 35-50-2-8(c). If the jury finds the defendant to be a habitual offender, the court is then required to sentence the defendant to an additional fixed term prescribed by statute. Ind.Code § 35-50-2-8(d).
The point on which Seay's argument turns is whether the jury in the habitual offender proceeding is permitted to render a verdict that the defendant is not a habitual offender even if it finds that the State has proven beyond a reasonable doubt that the defendant has accumulated two prior unrelated felonies. That is, is the jury entitled to make a determination of habitual offender status as a matter of law independent of its factual determinations regarding prior unrelated felonies?
In answering this question in the affirmative, we adopt the formulation of Justice Dickson--that even where the jury finds the facts of the prerequisite prior felony convictions to be uncontroverted, the jury still has the unquestioned right to refuse to find the defendant to be a habitual offender at law. Duff v. State, 508 N.E.2d 17, 24 (Ind.1987) (Dickson, J., separate opinion) (citing Mers v. State, 496 N.E.2d 75, 79 (Ind.1986); Baker v. Duckworth, 752 F.2d 302, 306 (7th Cir.1985), cert. denied 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618).
We acknowledge that the issue of the jury's role in the habitual offender phase of an Indiana criminal trial has been addressed in a number of opinions which are not entirely reconcilable. While agreeing that the Court of Appeals properly analyzed these cases for purposes of the context in which the issue arises here, we add several observations.
Some defendants have claimed that the habitual offender statute is unconstitutional either because the jury is not involved in deciding the penalty for being a habitual offender or is not allowed to take the penalty into account in making that determination. See, e.g., Taylor v. State, 511 N.E.2d 1036, 1039 (Ind.1987). Whatever the merits of those arguments may be, determining the habitual offender penalty is clearly different from determining habitual offender status and, in any event, we have long held that art. I, § 19, does not apply in penalty determinations. See Leslie v. State, 558 N.E.2d 813, 817 (Ind.1990); Taylor, 511 N.E.2d at 1040; Goodwin v. State, 439 N.E.2d 595, 601 (Ind.1982); Owens v. State, 427 N.E.2d 880, 886 (Ind.1981); Harrington v. State, 421 N.E.2d 1113, 1115 (Ind.1981); Taylor v. State, 420 N.E.2d 1231, 1233 (Ind.1981); Griffin v. State, 275 Ind. 107, 116-117, 415 N.E.2d 60, 66 (1981); Comstock v. State, 273 Ind. 259, 264, 406 N.E.2d 1164, 1167 (1980). We reaffirm that art. I, § 19, does not require that the jury be advised of the penalty for being a habitual offender or be involved in deciding the amount of the penalty.
Other defendants have raised claims similar to the one Seay raises here: that art. I, § 19, entitles the jury to determine whether the defendant is a habitual offender both as a matter of fact and of law. In Jones v. State, 449 N.E.2d 1060 (Ind.1983), the defendant argued that because the habitual offender statute mandated that the jury find a person to be a habitual offender if it finds the prerequisite prior felonies properly proven, it impinged upon the jury's constitutional responsibility to be the judge of the law as well as the facts. 6 Our Court made no distinction between habitual offender status and habitual offender penalty and reaffirmed the principle that the jury had no role in assessing penalties. In doing so, our Court cited to Harrington, Taylor, Griffin, and Comstock--cases where the penalty determination, not the status determination, were at issue. We concluded in Jones that "the habitual offender statute is a means of sentencing and is not a determination of the law necessary to reach the verdict." 449 N.E.2d at 1066. It is this conclusion that has been the source of much confusion. For this reason, we overrule Jones to the extent that it can be interpreted to mean that art. I, § 19, does not apply to the status determination in habitual offender proceedings.
Since Jones, we have had several cases dealing with the same issue over which there has been much disagreement and little consistency. In order clarify the law in this area, we discuss certain key cases that reflect these difficulties.
The first case after Jones specifically to address habitual offender status is Mers, 496 N.E.2d at 75. In the course of discussing a double jeopardy challenge to a habitual offender adjudication, we determined that adjudication of habitual offender status required more than simply a finding that the prerequisite prior felonies were properly proven. Justice Dickson wrote for the Court:
A person cannot be found to be a habitual offender upon merely two felony convictions. There must be three. It is from this group of three particular convictions that a jury may determine the "ultimate issue of fact"--whether, based on these three felonies, defendant's sentencing should be that of a habitual offender.
Mers, 496 N.E.2d at 79. The underlying principle in Mers was that because the jury determines whether a defendant should be given habitual offender status based on the three unrelated felonies, the jury has the power to determine not only the facts, but the law. In fact, Justice Dickson indicated so in his dissent in Hensley v. State, 497 N.E.2d 1053, 1058 (Ind.1986), in which Chief Justice Shepard concurred.
In Hensley, the defendant claimed that the trial court erred in submitting a verdict form which provided: " 'We the jury find beyond a reasonable doubt that the defendant Raymond Hensley is an habitual offender in that he has the following prior convictions.' " Id. at 1057. This statement was followed by a listing of the convictions alleged to which the jury had to respond either "yes" or "no." The defendant challenged this special verdict form because it "impinged upon the defendant's right to have a jury in a criminal case determine both the law and the facts pursuant to Art. 1, § 19 of the Indiana Constitution." Id. at 1057. The majority determined that the "jury's function in an habitual offender proceeding is to determine whether the defendant is an habitual offender defined by statute" and that the verdict form used at trial comported with the jury's function. Id. In citing to Mers, 496 N.E.2d at 75, which had just been decided two months earlier, Justice Dickson...
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