Tumulty v. State, 48A02-9409-CR-539

• Citation: 647 N.E.2d 361
• Case Date: February 28, 1995
• Court: Court of Appeals of Indiana

Page 361

647 N.E.2d 361 Jeffrey E. TUMULTY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 48A02-9409-CR-539. Court of Appeals of Indiana,
Second District. Feb. 28, 1995.

Page 362

William D. McCarty, Anderson, for appellant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

KIRSCH, Judge.

Jeffrey Tumulty pleaded guilty to attempted Criminal deviate conduct, ¹ a Class B felony, two counts of Battery, ² as Class C felonies, and being an habitual offender. ³ On

Page 363

appeal, Tumulty challenges the sentences imposed and the validity of his guilty plea to the habitual offender charge.

We vacate the habitual offender determination and resulting sentence enhancement, and affirm the convictions and sentences for battery and criminal deviate conduct.

ISSUES

The parties raise four issues for our review:

1. Whether Tumulty can challenge on direct appeal his guilty plea to an habitual offender charge?

2. Whether Tumulty's guilty plea to an habitual offender charge was valid where there was no evidence that he committed the second prior unrelated felony after he was sentenced for the first prior unrelated felony?

3. Whether the trial court articulated sufficient reasons to justify enhancement of Tumulty's sentence?

4. Whether Tumulty's sentence is manifestly unreasonable?

FACTS

On October 6, 1993 Tumulty was charged with attempted criminal deviate conduct, two counts of battery, and being an habitual offender. In the midst of a jury trial, he pled guilty to all charges without any agreement as to the sentence to be imposed.

In sentencing Tumulty, the trial court found aggravating factors and sentenced him to: 1) the presumptive sentence of ten years for the attempted criminal deviate conduct conviction, enhanced by ten years for aggravating circumstances; 2) sentences of four years for each battery conviction, those sentences running concurrently with each other but consecutive to the criminal deviate conduct conviction; and, 3) an enhancement of twenty years for the habitual offender conviction. Tumulty's total sentence for all convictions was forty-four years.

DISCUSSION AND DECISION

Issue One: Direct Appeal of Habitual Offender Plea

As a preliminary matter, the State argues that Tumulty cannot challenge on direct appeal the sufficiency of the factual basis for his guilty plea to the habitual offender charge. The State concedes that sentencing errors and constitutional infirmities appearing on the face of the record may be raised in a direct appeal from a guilty plea, but argues that a challenge to the plea itself must be made through a petition for post-conviction relief. Appellee's Brief at 4-5.

The means by which Tumulty appeals his habitual offender determination directly affects our standard of review. If Tumulty challenges his guilty plea to the habitual offender charge through a petition for post-conviction relief, as the State contends he must, then Tumulty would have the burden of proving at the post-conviction relief hearing that his various convictions did not occur in the required sequence. See Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917-18. See also Lingler v. State (1994), Ind., 644 N.E.2d 131; Long v. State (1995), Ind.App., 645 N.E.2d 1111. On the other hand, by challenging his habitual offender determination on direct appeal, Tumulty need only demonstrate that the State failed at the guilty plea hearing to prove the commission dates of the predicate felonies used to support that determination. See Weatherford, 619 N.E.2d at 917; Jaske v. State (1989), Ind., 539 N.E.2d 14, 24.

Our supreme court has, in the past, flatly stated that a direct appeal may not be taken from a guilty plea. See, e.g., Snow v. State (1964), 245 Ind. 423, 424, 195 N.E.2d 468, 469 ("It has been held many times by this court that where a defendant has entered a plea of guilty, or accepted a suspended sentence, there can be no appeal taken from the judgment entered therein."), reh'g denied, 245 Ind. 423, 199 N.E.2d 469. More recently, our supreme court and this court have allowed exceptions to this rule for direct appeals of: 1) sentencing errors, see Weyls v. State (1977), 266 Ind. 301, 302, 362 N.E.2d 481, 482; 2) constitutional infirmities appearing on the face of the record, see Hathaway

Page 364

v. State (1968), 251 Ind. 374, 377, 241 N.E.2d 240, 241-42; Woods v. State (1981), Ind.App., 426 N.E.2d 107, 110; and, 3) fundamental error, see Goode v. State (1974), 160 Ind.App. 360, 363, 312 N.E.2d 109, 111. In addition, our supreme court has elected to treat a direct appeal from the trial court's denial of a defendant's motion to vacate a guilty plea as one filed pursuant to Ind.Post-Conviction Rule 1 and ripe for the Court's review. Grimes v. State (1972), 257 Ind. 660, 661, 278 N.E.2d 271, 271 ("We will treat appellant's motion as one filed under P.C.1 since that is the appropriate procedure for requesting the vacation of a guilty plea."). This court has also allowed a direct appeal from a guilty plea where it would serve judicial economy. Stone v. State (1992), Ind.App., 599 N.E.2d 616, 617 n. 1 ("[I]n order to preserve judicial resources and promote efficiency in the resolution of cases, this Court will overlook appellant's failure to file a petition for post-conviction relief and address the merits of the habitual offender issue.").

The State's failure to establish the proper sequence of commission and sentencing for the predicate felonies on an habitual offender charge is fundamental error. See Jordan v. State (1987), Ind., 510 N.E.2d 655, 660; Weatherford, 619 N.E.2d at 917. As fundamental error, Tumulty may challenge the adequacy of the basis for his plea to the habitual offender charge on direct appeal. See Goode, 160 Ind.App. at 363, 312 N.E.2d at 111.

Judicial economy also favors permitting a direct appeal. Were we to disallow Tumulty's direct appeal of his guilty plea as urged by the State, we would still have the two sentencing issues raised by Tumulty to consider here. While Tumulty's appeal is pending, the trial court lacks jurisdiction to entertain any post-conviction relief petition he might file. See Bright v. State (1972), 259 Ind. 495, 496, 289 N.E.2d 128, 129. Tumulty could, therefore, either wait until this appeal is concluded and then file his post-conviction relief petition, or he could petition this court for leave to file a post-conviction relief petition with the trial court and request that we hold this appeal in abeyance pending a ruling by the trial court. See Davis v. State (1977), 267 Ind. 152, 156-57, 368 N.E.2d 1149, 1151. Because our review of the adequacy of the factual basis for Tumulty's guilty plea does not require an evidentiary hearing, to delay that review while Tumulty files a petition for post-conviction relief would result in counsel and the courts ultimately expending additional time and effort to no useful purpose. See Bright, 259 Ind. at 500, 289 N.E.2d at 131 ("To me, dismissal operates here as a useless wasting of judicial resources.") (DeBruler, J., concurring and dissenting).

Although we find that the issue raised by Tumulty falls within the fundamental error exception to the prohibition against the direct appeal of guilty pleas, it is clear the prohibition needs to be reconsidered. Our appellate courts' preference in more recent holdings to avoid strict enforcement of this prohibition reflects an evolution in Indiana appellate procedure. Originally, a guilty plea could not be directly appealed because an appeal was initiated by a motion for a new trial and that motion was available only if the conviction was entered after a trial. See Ledgerwood v. State (1893), 134 Ind. 81, 91, 33 N.E. 631, 634-35 ("The motion for a new trial was properly overruled, because there had been no trial, and a new trial can only be granted where there has been a trial."). Relief from a guilty plea was instead sought by asking leave of the trial court to withdraw the plea, and then appealing from the trial court's ruling if the motion was denied. See Snow, reh'g denied, 245 Ind. at 428, 199 N.E.2d at 471 ("The proper procedure is to file verified petitions in term to withdraw the plea of guilty and to vacate the judgment, and to appeal if they are overruled."). An attack upon a guilty plea which raised matters not appearing of record in the trial court was made by applying for a writ of error coram nobis. Id. 199 N.E.2d at 470-71. See also State ex rel. Kunkel v. Circuit Court of La Porte County (1936), 209 Ind. 682, 687, 200 N.E. 614, 616.

Changes in appellate procedure have eliminated motions for new trials and writs of error coram nobis; now, most direct appeals may be taken without filing a preliminary motion with the trial court. An appeal which depends upon evidence not within the record

Page 365

of the trial court in a criminal case may be brought either by a motion to correct error pursuant to Ind.Crim.Rule 16, or through a petition for post-conviction relief. With these changes, an outright prohibition of a direct appeal from a guilty plea seems no longer warranted.

It appears to us that the adequacy of the record on the issues appealed should determine whether the direct appeal of a guilty plea is the appropriate mechanism for review. If the transcript of the guilty plea hearing is confusing or inconclusive or additional evidence is otherwise required, the appeal of a guilty plea should be initiated through a timely motion to correct error or petition for post-conviction relief. See Hunter v. State (1985), Ind.App., 477 N.E.2d 317, 321 n. 3; Armstead v. State (1992), Ind.App., 596 N.E.2d 291, 293. See also Crain v. State (1973), 261 Ind. 272, 273, 301 N.E.2d 751, 751-52 ("[T]he type and extent of evidentiary hearing afforded at a post-conviction proceeding is ... specifically designed to allow appellant an opportunity to establish the factual assertions he makes concerning...