White v. State
| Decision Date | 20 March 2012 |
| Docket Number | No. 15S01–1109–CR–545.,15S01–1109–CR–545. |
| Citation | 963 N.E.2d 511 |
| Parties | Jerrell D. WHITE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Jeffrey E. Stratman, Aurora, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 15A01–1008–CR–463
The defendant challenges the trial court's decision to allow the State's tardy habitual-offender filing. The defendant also asserts that the evidence was insufficient to support a finding that he is a habitual offender. We hold, under the circumstances of this case, that the defendant did not preserve the issue of whether the trial court properly allowed the habitual-offender filing. We also hold that the authenticated and certified evidence was sufficient to uphold the jury's determination that the defendant had two unrelated adult felony convictions.
In September 2009, defendant Jerrell D. White waited in a car while his friend Michael Hills took a cash register from a restaurant. Hills placed the register in the trunk, and White drove himself and Hills to a nearby casino. When police arrived at the restaurant, witnesses gave descriptions of the two men, the car, and the license plate number.
Police officers eventually arrived at the casino, suspecting that the men took the money from the restaurant's register to gamble. Hills was arrested the same day; White was arrested two days later.
The State charged White with Class C felony robbery, Class D felony theft, and Class D felony receiving stolen property. Before trial, the court permitted a late filing of a habitual-offender charge. The State based the habitual-offender charge, in part, on two out-of-state convictions for offenses White committed when he was fifteen years old.
At trial, White represented himself with stand-by assistance from a public defender. Ultimately, the jury found White not guilty of robbery but guilty of both theft and receiving stolen property. The jury also determined White was a habitual offender. The trial court sentenced White to three years for each conviction, to be served concurrently. The trial court then enhanced the sentence by four-and-one-half years for White's status as a habitual offender.
White appealed, raising five distinct issues: (1) the convictions for theft and receiving stolen property violated the prohibition against double jeopardy; (2) the evidence supporting his theft conviction was insufficient; (3) the trial court erred when it allowed the State to amend the information to include a habitual-offender charge; (4) the evidence supporting the habitual-offender finding was insufficient; and (5) the sentence was inappropriate in light of the nature of the offense and the character of the offender.
The Court of Appeals agreed with White's double jeopardy argument and ordered the trial court to vacate the conviction and sentence for receiving stolen property. White v. State, 944 N.E.2d 532, 536 (Ind.Ct.App.2011). The Court of Appeals also agreed that the evidence was insufficient to support the habitual-offender finding and directed the trial court to vacate the finding and the sentence enhancement. Id. at 537. The Court of Appeals, on the other hand, found sufficient evidence to support the theft conviction and also found that the sentence on the theft conviction was not inappropriate. Id. at 537–38. Finally, the Court of Appeals did not address White's argument regarding the State's late filing to include the habitual-offender charge.
On rehearing, the State argued that the Court of Appeals should have remanded the case to the trial court with instructions to allow the State to retry the habitual- offender enhancement. The Court of Appeals agreed, relying on this Court's decision in Jaramillo v. State, 823 N.E.2d 1187 (Ind.2005). White v. State, 950 N.E.2d 1276, 1278 (Ind.Ct.App.2011). In a footnote, the Court of Appeals addressed White's argument regarding the habitual-offender filing. Id. at 1278 n. 2. It rejected the argument, noting that White did not request a continuance after the trial court permitted the belated filing and thus White failed to preserve the issue for appeal. Id.
We granted transfer to address (1) the State's belated filing of the habitual-offender charge and (2) the sufficiency of the evidence to support the habitual-offender finding. We summarily affirm the decision of the Court of Appeals that the two convictions violated double jeopardy principles (resulting in vacation of White's conviction for receiving stolen property); that there was sufficient evidence to support the theft conviction; and that the sentence on the theft conviction was not inappropriate. Ind. Appellate Rule 58(A)(2).
Indiana Code section 35–34–1–5(e) (2008) provides that an amendment of an information to include a habitual-offender charge “must be made not later than ten (10) days after the omnibus date.” The trial court, however, may permit the filing of a habitual-offender charge at any time before the commencement of trial “upon a showing of good cause.” Ind.Code § 35–34–1–5(e).
White contends that the trial court permitted the State to amend the information to include a habitual-offender charge more than ten days after the omnibus date without any showing of good cause. The State counters that the trial court properly allowed the State to amend the information, noting it was “clear” good cause existed. The State also points to the fact that neither White nor stand-by counsel “lodged any objections to the amended information.”
The omnibus date for White's case was March 10, 2010. The State filed its motion to amend the information to include the habitual-offender enhancement on March 25, 2010, which, of course, was more than ten days after the omnibus date. The State's motion did not articulate any grounds for good cause to file the amendment after the ten-day deadline.
The trial court did not set a hearing on the motion. On March 29, 2010, the trial court issued a written order granting the State's motion to include a habitual-offender charge. This order did not contain an explicit finding of good cause, and the State filed its amended information including the habitual-offender charge the next day.
On March 31, 2010, the trial court held an initial hearing on the amended charge. At the hearing, the trial court first asked White whether he received and read the amended information that included the habitual-offender charge, and White answered in the affirmative. A colloquy between the court, the parties, and White's stand-by counsel Mr. Sorge then took place:
Mr. Sorge: No questions, your Honor.
The Court: At this time, Mr. Sorge, do you or your client have anything else you wish to put on the record in regards to the initial hearing or any questions?
Mr. Sorge: We just enter a denial of the allegations, your Honor.
The Court: The Court will enter a denial on the habitual offender enhancement.... [D]oes either party have anything further at this time?
The State: No, your Honor.
Mr. Sorge: No, your Honor.
At no point during this hearing, at any other point before trial, or any point during trial did White object to the late filing. Furthermore, once the trial court granted the State's motion to include the habitual-offender charge, White failed to request a continuance.
This Court has addressed a late filing under Indiana Code section 35–34–1–5(e) on several occasions. Each case presented a unique set of facts related to the tardy habitual-offender filing. We review the precedent to sort out which legal principles are applicable to the case at hand.
In Daniel v. State, the State belatedly amended the information to add a habitual-offender charge almost nine months after the omnibus date. 526 N.E.2d 1157, 1162 (Ind.1988). On appeal, the defendant argued that the late filing “denied him his right to proper notice and his right to prepare.” Id. This Court stated, “[b]ecause [the defendant] did not object at trial and because he failed to request a continuance ... he has waived the issue of the State's late filing of the habitual offender allegation.” Id. Despite finding this issue waived, the Court delved into the issue of prejudice, finding that the defendant failed to present “any explanation of the manner in which he was prejudiced.” Id. Daniel did not discuss the issue of “good cause.”
In Haymaker v. State, the State timely filed a habitual-offender charge but then amended that charge on the eve of trial. 667 N.E.2d 1113, 1113 (Ind.1996). The defendant objected to the amendment before the habitual-offender phase of the bifurcated proceeding, but the trial court permitted the State to proceed. Id. at 1113–14. On appeal, the defendant argued that the trial court erred in allowing the State to amend the habitual-offender information, relying on Indiana Code section 35–34–1–5(e). Id. at 1114. This Court first found that the defendant's reliance on Indiana Code section 35–34–1–5(e) was misplaced because that section dealt with an addition of a habitual-offender charge and not an amendment to an already existing habitual-offender information. Id Nevertheless, the Court stated, Haymaker, 667 N.E.2d at 1114. The defendant contended that he failed to request a continuance because he had filed a speedy trial motion and wanted his trial to proceed as scheduled. Id This...
To continue reading
Request your trial
-
McGill v. State
...at 53;Land, 802 N.E.2d at 53–54. Furthermore, to the extent that McGill relies on the Indiana Supreme Court's opinion in White v. State, 963 N.E.2d 511 (Ind.2012), we note that White is easily distinguishable from the instant matter. In White, the State did not articulate any grounds for go......
-
Lacy v. State
...court to act in a claimed erroneous matter and then attempt to take advantage of the alleged error at a later time.’ “ White v. State, 963 N.E.2d 511, 518 (Ind.2012) (quoting Hensley v. State, 251 Ind. 633, 639, 244 N.E.2d 225, 228 (1969) ). Lacy has, therefore, waived this issue for appell......
-
Barnett v. State
...could have objected to the inclusion of the habitual offender enhancement at any time up to and including trial. See White v. State , 963 N.E.2d 511, 515 (Ind. 2012) ("At no point during this hearing, at any other point before trial, or any point during trial did White object to the late fi......
-
Curry v. State
...this court does not reweigh the evidence but rather looks at the evidence in the light most favorable to the verdict. White v. State, 963 N.E.2d 511, 518 (Ind.2012) (citing Toney v. State, 715 N.E.2d 367, 369 (Ind.1999) ). If an appellate court deems the evidence insufficient, then an habit......