Weatherford v. State, 79A02-9108-PC-350

• Decision Date: 05 August 1992
• Docket Number: No. 79A02-9108-PC-350,79A02-9108-PC-350
• Citation: 597 N.E.2d 17
• Parties: Michael WEATHERFORD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. 1
• Court: Indiana Appellate Court

Page 17

597 N.E.2d 17

Michael WEATHERFORD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 79A02-9108-PC-350. ¹

Court of Appeals of Indiana First District.

Aug. 5, 1992.

Susan K. Carpenter, Public Defender, Hilary Reeve, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

ROBERTSON, Judge.

Michael Weatherford appeals the denial of his third petition for post-conviction relief. He asserts a fundamental defect in the evidence supporting his habitual criminal adjudication; specifically, he asserts the State failed to prove the required sequence of his prior convictions. We reverse.

FACTS

The facts in the light most favorable to the post-conviction court's judgment indicate that Weatherford was convicted of dealing in a controlled substance and adjudicated an habitual criminal in 1978. He was sentenced to life imprisonment as provided by the habitual criminal statute in effect at that time.

Weatherford's direct appeal and first petition for post-conviction relief were dismissed because Weatherford, while free on bond, became a fugitive from justice. After a few years, Weatherford was recaptured and incarcerated. He then filed a second petition for post-conviction relief which was summarily denied. Our supreme court affirmed this summary denial of post-conviction relief in Weatherford v. State (1987), Ind., 512 N.E.2d 862.

Weatherford filed the present petition, his third, on November 21, 1989. In this petition, Weatherford raises the present allegation of error for the first time. The post-conviction court, after conducting a hearing, denied Weatherford's petition and this appeal ensued.

Additional facts are supplied as necessary.

DECISION

Initially, we note that in a post-conviction relief proceeding, the defendant has the burden of proving his grounds of relief by a preponderance of the evidence. Murphy v. State (1985), Ind., 477 N.E.2d 266. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Stewart v. State (1988), Ind., 517 N.E.2d 1230. When reviewing the denial of post-conviction relief, we will reverse only when the evidence is without conflict and leads solely to a result different from that reached by the trial court. Daniels v. State (1988), Ind., 531 N.E.2d 1173.

Weatherford was adjudicated an habitual criminal under the following statute:

Habitual criminals--Life sentence. Every person who, after having been twice convicted, sentenced, and imprisoned in some penal institution for a felony, whether committed heretofore or hereafter, within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the State prison for and during his or her life.

Burns 9-2207 [Acts 1907 ch. 82, Sec. 1, p. 109]. Under this statute, the State was required to prove that the defendant had been imprisoned upon the first sentence prior to the commission of the second offense and that he had been imprisoned upon the conviction of the second offense prior to the commission of the principal offense. Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799. The requirement of imprisonment is not included in the current statute, but the sequence of offenses, convictions, and sentencing was expressly retained. Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339.

In the present case, Weatherford's habitual criminal status was based on a 1960 burglary conviction (committed when he was sixteen (16) years old), three (3) 1965 theft convictions (treated as one (1) conviction for purposes of the habitual criminal adjudication), and a 1971 federal firearms conviction. Weatherford asserts, and the State does not seriously dispute, that, for the 1971 federal firearms conviction, only the dates of the conviction and sentencing were proved. Therefore, Weatherford asserts, the State failed to prove the crucial date of the commission of the 1971 federal firearms offense and the evidence is insufficient to prove that the federal firearms offense was committed after the sentencing for the 1965 theft convictions. Weatherford asserts this defect in the proof of the 1971 federal firearms conviction is fundamental error which requires the vacation of his habitual adjudication, citing Steelman v. State (1985), Ind., 486 N.E.2d 523 and Jordan v. State (1987), Ind., 510 N.E.2d 655.

We must agree. The present defect in the proof is remarkably similar to the defect in Steelman, 486 N.E.2d 523, in which the State failed to prove the "crucial date of the commission" of the second of two (2) felonies supporting Steelman's habitual offender adjudication. Id. at 526.

However, Steelman is distinguishable from the present case. Steelman's habitual offender adjudication rested upon two underlying (2) convictions, one of which was ineligible. Weatherford's habitual criminal adjudication rests upon three (3) convictions, one of which is ineligible.

Our supreme court has addressed this situation stating:

It is proper habitual offender practice for the State to plead and prove more than two prior unrelated felony convictions. The additional convictions are deemed mere surplusage. Where, however, such a group of more than two includes one or more felonies which do not meet statutory criteria and a general verdict of habitual offender is returned, a retrial of the habitual offender allegation is required. This is so because the general verdict of the trier of fact may rest upon an ineligible prior conviction alone.

Nash v. State (1989), Ind., 545 N.E.2d 566, 568 (citations omitted). When the State attempts to prove three (3) underlying felonies to support an habitual offender adjudication, and one is ineligible and the jury returns a general verdict, it is impossible to determine whether the jury relied on the ineligible conviction. Waye v. State (1991), Ind., 583 N.E.2d 733. 'A general verdict cannot stand when the case was tried and submitted on two theories, one bona fide and the other not.' Id. at 735 (quoting Miller, 275 Ind. 454, 460, 417 N.E.2d 339, 343.) In Fozzard v. State (1988), Ind., 518 N.E.2d 789, our supreme court reversed an habitual offender adjudication when one of three felonies was not proven to fit in the required sequence. ²

In the present habitual criminal proceeding, the jury returned a verdict on a form which stated that Weatherford:

has been twice previously convicted, sentenced, and imprisoned in a penal institution and that he is an habitual criminal.

This verdict is general because it is possible that the jury relied on the ineligible 1971 federal firearms conviction as one of two convictions upon which the habitual criminal status is based. Even where two felonies are properly proved, it is impossible to discern which of the alleged prior convictions provided the factual basis for the jury's determination. See generally, Miller, 417 N.E.2d 339.

The State urges that the doctrine of waiver bars Weatherford's claim. The purpose of Indiana's post-conviction remedies is to permit a petitioner to raise issues which were either unknown or unavailable to him in his direct appeal; thus, issues raised and determined on direct appeal are not reviewable in post-conviction proceedings, and even issues not raised but nonetheless were available to the petitioner in the original appeal are waived in post-conviction proceedings. Marchand v. Tyson (N.D.Ind.1983), 560 F.Supp. 882. Fundamental error, which will survive waiver in post-conviction proceedings, must be one which is blatant and which if not rectified would deny the petitioner fundamental due process. Harris v. State (1988), Ind.App., 519 N.E.2d 1253, trans. denied.

Our supreme court has held a defendant's claim that his habitual offender adjudication was defective because the required sequence of prior convictions was not proved constituted a question of a fundamental right which qualified for consideration in post-conviction proceedings despite procedural default. Lee v. State (1990), Ind., 550 N.E.2d 304; Williams v. State (1988), Ind., 525 N.E.2d 1238. In Williams, our supreme court held that the failure of the record of the habitual offender proceedings to support the proper sequence of prior convictions provided the basis for a claim which was fundamental in nature and, as such, could be raised in a post-conviction petition despite the fact that it was available on direct appeal and there was a failure to raise it there. Our supreme court has characterized defects in the proof of habitual adjudications as fundamental and has granted relief for these fundamental defects sua sponte on direct appeal. Steelman, 486 N.E.2d 523; Jordan, 510 N.E.2d 655. Our supreme court has granted relief for a fundamental defect in an habitual offender adjudication upon a defendant's motion to correct an erroneous sentence under IND.CODE 35-38-1-15. Waye, 583 N.E.2d 733.

Based on the above authority, we find the present defect to be fundamental in nature and not subject to waiver in post-conviction proceedings. Therefore, we hold Weatherford's claim has not been waived.

The State also asserts that the doctrine of res judicata bars Weatherford's claim. Where an issue, although differently designated, has been previously considered and determined upon direct appeal, the State may defend against the defendant's post-conviction petition on the grounds of res judicata. Harding v. State (1989), Ind.App., 545 N.E.2d 14, trans. denied. In its brief, the State urges:

In his [second petition for post-conviction relief, Weatherford] challenged the habitual offender determination by alleging, as fundamental error, that it was error to have used his 1960 conviction to support the habitual finding. Weatherford, [...