Waye v. State, 85S02-9112-CR-1010
| Decision Date | 20 December 1991 |
| Docket Number | No. 85S02-9112-CR-1010,85S02-9112-CR-1010 |
| Citation | 583 N.E.2d 733 |
| Parties | Rodney J. WAYE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
In this case, we grant transfer and set aside the finding that Rodney J. Waye (Defendant-Appellant below) is an habitual offender for the reason that a misdemeanor conviction was improperly admitted during the habitual offender proceedings.
The facts relevant to the habitual offender finding in the instant case reveal that in 1989 Waye was convicted of burglary and attempted theft, and was found to be an habitual offender. His sentence was enhanced by 30 years on account of this finding. During the habitual offender phase of the trial, the State presented evidence of three underlying convictions. Two were for felonies (1974 possession of marijuana and 1977 safe burglary), and are not at issue here. 1 The facts relevant to the conviction at issue here came about as a result of a guilty plea in 1979 to the then-existing escape statute, Ind.Code Sec. 35-21- 8-1 (1976) (repealed). The statute gave the trial court discretion to order sentence as a class D felony or a class A misdemeanor and specified that if the misdemeanor penalty were imposed, the conviction was to be considered a misdemeanor for all purposes. The transcript from the guilty plea hearing reveals that Waye pled guilty to a class A misdemeanor and was sentenced to one year. On October 3, 1978, on a petition for post-conviction relief, the guilty plea was vacated. Waye repled to the charge on June 18, 1979, and was again sentenced to one year. At the 1979 hearing, Waye inquired about whether he was pleading to a misdemeanor or a felony. First he was advised by the guilty plea court that he was pleading to a misdemeanor, then advised he was pleading to a felony, and finally advised that the issue was being left open. Again, Waye sought post-conviction relief; this time relief was denied. In the memorandum decision affirming the denial, the Court of Appeals determined, on the basis of the transcript from the guilty plea hearing, that the escape conviction "must be considered a misdemeanor." Waye v. State (August 3, 1991) Ind.App., No. 85A02-8811-PC-00433, slip op. at 4, 576 N.E.2d 645 (table).
Generally, "[t]he determinative issue is whether the Defendant might have been sentenced to a term of imprisonment greater than one (1) year," not whether the defendant actually received a sentence in excess of one year. McBrady v. State (1984), Ind., 459 N.E.2d 719, 725. Here, unlike McBrady, the statute under which Waye was convicted and sentenced specifically provided that "any person convicted under the misdemeanor penalty of this chapter shall thereupon and thereafter be considered as a misdemeanant for all purposes. IND.CODE Sec. 35-21-8-1 (emphasis added). This would include habitual offender proceedings. Accordingly, we are obliged to consider the escape conviction as a misdemeanor conviction for purposes of the habitual offender proceedings here. Thus, the escape conviction was not a valid felony conviction within the meaning of the habitual offender statute, IND.CODE ANN. Sec. 35-50-2-8 (West Supp.1991). Because we conclude that admission of the escape conviction as a felony during habitual offender proceedings was prejudicial error, we now grant transfer.
The State is correct in asserting that more than two prior unrelated felony convictions may be proven in an habitual offender determination with the additional convictions considered to be "harmless surplusage." Hudson v. State (1983), Ind., 443 N.E.2d 834, 837. Where, however, as here, one or more of the convictions are not qualified as felonies under the habitual offender statute, and the habitual offender finding is made by general verdict, the finding must be vacated. Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339, 342-43. In Miller, the State presented evidence of four prior convictions even though the defendant had not yet been convicted of two of them at the time the principal offense was committed. This Court concluded that even where two of the felonies were properly proved, because two of the felonies did not meet the requirements of the habitual offender statute and a general verdict form was used, "it [could not] be discerned which of the four alleged prior convictions provided the factual basis for the jury's determination." Thus, reversal was required. Id at 343. Miller has been followed in vacating other habitual...
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Powers v. State
...conviction. Moreover, the sufficiency of habitual offender adjudications is a matter often raised successfully on appeal. Waye v. State (1991), Ind., 583 N.E.2d 733; Lee v. State (1990), Ind., 550 N.E.2d 304; Nash v. State (1989), Ind., 545 N.E.2d 566; Powers, 540 N.E.2d 1225; McCombs v. St......
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...guilty of each of the prior felony convictions, thus eliminating any confusion that might occur under a general verdict. See Waye v. State, 583 N.E.2d 733 (Ind.1991). In those several jurisdictions where the issue has been raised that more than the statutory number of prior convictions have......
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Weatherford v. State, 79A02-9108-PC-350
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