Weatherford v. State

Decision Date31 August 1993
Docket NumberNo. 79S02-9308-PC-955,79S02-9308-PC-955
Citation619 N.E.2d 915
PartiesMichael WEATHERFORD, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Ruth Johnson, Deputy Public Defender, Indianapolis, for appellant.

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

SHEPARD, Chief Justice.

Michael J. Weatherford filed a petition for post-conviction relief challenging the 1979 determination that he was an habitual criminal. The Court of Appeals held that Weatherford was entitled to relief because the transcript of his original trial did not contain evidence demonstrating the date on which one of Weatherford's prior felonies was committed. This holding wrongly allocates the burden of proof in post-conviction proceedings. Accordingly, we grant the State's petition to transfer and vacate the decision of the Court of Appeals.

Case History

This appeal is Weatherford's fourth challenge to his conviction for dealing in a controlled substance and being an habitual criminal. His direct appeal and his first petition for post-conviction relief were dismissed after Weatherford absconded while free on bond. His second petition for post-conviction relief was summarily denied by the Tippecanoe Circuit Court, and we affirmed the denial. Weatherford v. State (1987), Ind., 512 N.E.2d 862. His third petition was also denied. A divided Court of Appeals reversed. Weatherford v. State (1992), Ind.App., 597 N.E.2d 17.

Burdens in Post-Conviction Relief

The post-conviction procedures established by this Court do not afford the convicted an opportunity for a "super appeal." Rather, they create a narrower remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules. Issues which were or could have been raised on direct appeal are not available for review in post-conviction. Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699.

Under the post-conviction rules, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, Sec. 5. In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Williams v. State (1987), Ind., 508 N.E.2d 1264.

Our cases involving habitual offender determinations reflect the differences between issues raised on direct appeal and issues raised in post-conviction proceedings. Typically, these cases have focused on the evidence demonstrating an appropriate order of events. Weatherford was found to be an "habitual criminal" under Ind.Code Sec. 35-8-8-1. Though that statute merely required that a defendant had been "twice convicted, sentenced, and imprisoned in some penal institution for a felony," this Court understood the law as requiring the State 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 conviction of the second offense before he committed the principal crime. Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799. The 1977 habitual offender statute, Ind.Code Sec. 35-50-2-8(b), does not mention imprisonment but is otherwise substantially similar in form. We have continued to require proof showing that commission/conviction/sentence for each of the offenses occurred seriatim. Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339.

When reviewing habitual offender cases on direct appeal, we have regarded issues involving improper sequence or inadequate proof as "fundamental error" which warrants vacating the habitual offender adjudication. See, e.g., Steelman v. State (1985), Ind., 486 N.E.2d 523. The rule in post-conviction cases has been somewhat different, as befits the differing functions of direct appeal and post-conviction relief. Accord Parke v. Raley, --- U.S. ----, 113 S.Ct. 1068, 122 L.Ed.2d 372 (1992) (differing burdens of proof upheld against due process challenge). We have considered possible defects in habitual offender proofs as "fundamental error" such that they may be raised notwithstanding failure to do so on direct appeal. Williams v. State (1988), Ind., 525 N.E.2d 1238. Where we have granted relief, however, the evidence has demonstrated that the commission/conviction/sentencing were not in the proper order. In Williams, for example, the evidence plainly showed that Williams had committed his first offense, then committed his second offense, then been convicted for his first offense. These events were thus clearly not in the proper sequence, and we ordered the habitual offender enhancement vacated. Williams, 525 N.E.2d at 1241.

Weatherford's Proof

Weatherford was found an habitual offender based on these prior convictions: a 1960 burglary conviction, three 1965 burglary convictions, and a 1971 federal firearms conviction. His challenge in this proceeding rests on the failure of the State to demonstrate during his trial the date he committed the federal offense.

If this were a direct appeal, Weatherford's challenge to the adequacy of the evidence supporting the habitual offender adjudication would be entertained and resolved based on this omission, and possibly on the interesting question of the role of the firearms conviction as "surplusage" in the habitual offender scheme. Because Weatherford is before us on post-conviction relief, however, he may not prevail simply by putting the State to its proof as though the case were being tried or appealed in the first instance. Instead, Weatherford must demonstrate that he was not an habitual offender under the laws of the state. As in Williams, Weatherford must demonstrate that his various convictions did not in fact occur in the required order. The evidence before the post-conviction court was hardly inconsistent with its denial of Weatherford's petition. Accordingly, we affirm the trial court.


DeBRULER, J., dissents with separate opinion.

DeBRULER, Justice, dissenting.

The claim that the evidence of guilt...

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