Yager v. State

• Citation: 437 N.E.2d 454
• Decision Date: 14 July 1982
• Docket Number: No. 681S169,681S169
• Parties: James Douglas YAGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 454

437 N.E.2d 454

James Douglas YAGER, Appellant, v. STATE of Indiana, Appellee.

No. 681S169.

Supreme Court of Indiana.

July 14, 1982.

John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was originally charged on a two-count indictment. Count I was for Theft, and under Count II the State sought enhancement of any sentence imposed upon a finding that appellant was an habitual offender. The indictment was later amended to add two counts for forgery. A jury found appellant guilty on all four counts. He was sentenced to terms of imprisonment of two years on the theft count, five years on each of the forgery counts, and the sentence was enhanced with the thirty year term provided for in the habitual offender statute.

The judge in this case made the same technical error we have seen reoccurring in several cases recently, in that he treated the habitual criminal charge as a separate charge and sentenced for thirty years for that charge. As we have previously stated, one convicted of a crime and found to be an habitual criminal is not sentenced separately for being an habitual criminal. Under the statute the defendant receives an additional thirty years for the instant crime because he has been found to be an habitual criminal.

It is imperative to understand the difference. If the status of being an habitual criminal were to be considered a separate crime, conviction would be unconstitutional as double jeopardy. When status permits enhancement of the penalty for the instant crime no such impairment exists. To punish for the status of habitual criminal would also violate the Eighth Amendment of the United States Constitution. Funk v. State, (1981) Ind., 427 N.E.2d 1081. The trial court therefore erred in assessing a separate sentence of thirty years as an habitual criminal. The thirty years provided by the statute should be an enhancement of one of the instant felonies.

In the case at bar it would be perfectly proper for the judge to give a two year sentence for Theft under Count I; a five year sentence for Forgery under Count II; and under Count III to give a five year sentence for Forgery to be enhanced by thirty years by reason of the habitual criminal finding. Therefore the total penalty assessed for the Forgery under Count III would be thirty-five years.

This cause is remanded to the trial court for such correction. The trial court will in all other things be affirmed.

In the case at bar, appellant represented himself as he did in all preliminary proceedings. At the trial he declined to participate in the proceedings. The record shows the following facts. On July 30, 1979, a man identifying himself as "James H. Brown" opened a business checking account at the main office of the National City Bank of Evansville for a new business he claimed to be starting, "Brown's Towing and Auto Service." Evidence introduced later showed appellant was the man who identified himself as "James H. Brown." The next day a man, identified by tellers handling the transactions as appellant, made several deposits at various branches of National City Bank. In each case he deposited part of a check made out to Brown's Towing and Auto Service to the newly opened account and took the balance of the check in cash. These checks were drawn on either the account of "Labor Source" of Nashville, Tennessee, held with the Commerce Union Bank of that city, or "Nelson's Car Wash" of Scottsburg, Indiana, held with the National Bank of Scottsburg. It was found both these accounts had been closed with the respective banks some time before the new account for Brown's Towing and Auto Service was opened. Appellant was subsequently arrested in Fort Smith, Arkansas, where he was trying to pass a check drawn on the Nelson's Car Wash account. He had other checks from Nelson's and from Labor Source in his possession. In connection with the offenses committed in Evansville appellant was charged and convicted as recited above.

Appellant argues the enhancement of his sentence under the habitual offender statute, I.C. 35-50-2-8 [Burns 1979 Repl.] should be vacated because the statute is unconstitutional. He claims the statute is unconstitutional on three separate grounds.

First he claims the statute is an ex post facto law. We dealt with this same contention in Funk, supra. Next he claims the habitual offender statute is unconstitutional because it deprives him of a fair trial by requiring him to be tried on the habitual count before the same jury that heard the evidence on the substantive offense. This argument was rejected in Jameison v. State, (1978) 268 Ind. 599, 377 N.E.2d 404.

Appellant also claims the habitual offender statute is unconstitutional because the prosecutor may arbitrarily enforce the statute by determining without adequate guidelines whom to prosecute under the statute. We have considered and rejected this argument as well. See, Funk, supra; Eaton v. State, (1980) Ind., 408 N.E.2d 1281.

Appellant claims the trial court erred in overruling his "Motion for Court Order for Legal Supplies" and his "Motion for Court Appointed Private Investigator." Appellant claims denial of these motions was error because he had exercised his constitutional right to proceed pro se, because he was incarcerated he obviously could not investigate the allegations of the state himself, and because he was indigent he could not pay for these supplies or services. He cites Roberts v. State, (1978) 268 Ind. 127, 373 N.E.2d 1103, in support of his argument.

In Roberts, supra, the defendant claimed as error the trial court's denial of his oral motion for the services of a private investigator. We held such denial was not error. We observed, "[T]here is not a constitutional mandate, under the due process clause, that one accused of a crime be entitled at public expense to any type of expert whose help in a particular case might be relevant." Id. at 129, 373 N.E.2d at 1105. We went on to note the only constitutional fair trial requirement relative to such services is in regard to appointment of a psychiatrist when an insanity defense is offered. We continued:

"[T]here are no further constitutional requirements for the appointment of experts. The trial judge may appoint further experts, of course, but such appointments would be within his sound discretion. No such abuse of discretion is shown in the denial of this appellant's motions, especially since the requests were made for services which could have been performed by appellant's counsel." Id. at 130, 373 N.E.2d at 1105.

First we note those cases cited by appellant in support of this proposition are inapposite because at the stage of the proceedings at which the motions were made this appellant's indigency was not established. In fact, on March 28, 1980, appellant was arraigned and the trial court offered to have counsel appointed for him. Appellant declined this offer and stated if he felt he needed counsel he would retain private counsel. As late as December of 1980, he was still talking about retaining private counsel and was not claiming he couldn't afford to do so. These facts belie any notion appellant was indigent at the time he made the motions.

Moreover, we note it was appellant's choice to represent himself. We have stated: "[O]f course, a defendant may represent himself if he so desires. In such situation he must accept the burdens and hazards incident to his position." Blanton v. State, (1951) 229 Ind. 701, 703, 98 N.E.2d 186, 187. See also, Franklin v. State, (1955) 234 Ind. 418, 126 N.E.2d 768. One of the "burdens and hazards" appellant took on by rejecting the offer to have counsel appointed for him was that of doing without the supplies and services an appointed attorney could have provided for him. We will not hear him now complain of these burdens and hazards he could have easily avoided.

Appellant claims the trial court erred in not granting his Motion for Change of Venue, filed May 29, 1980. Appellant attached to the motion an article printed in a May 16, 1980, edition of an Evansville newspaper regarding his prior criminal activity and his self-representation in the instant case. The record shows at a hearing held May 29, 1980, the court indicated the motion would be taken under advisement, to be ruled upon during or after jury selection. We can find no evidence in the record the motion was ever ruled upon.

This error is not the proper subject for our review. No error can be claimed in the appellate court on the subject matter of a motion never ruled upon by the trial court. Jaudon v. State, (1970) 255 Ind. 114, 262 N.E.2d 851.

In a related assignment of error appellant claims the trial court erred in not properly questioning the jurors on voir dire (conducted by the court) as to any possible prejudice they might harbor toward appellant because of media reports on the case. Appellant cites no authority for the proposition the court was required to make this specific inquiry on voir dire. Therefore his argument on this issue may be deemed waived under Ind.R.App.P. 8.3(A)(7). Additionally, the record shows no objection was made to any alleged deficiencies in the trial court's voir dire of the jury with respect to the question of pre-trial publicity. Accordingly, assuming arguendo the court was obliged to make such inquiry, any error in not doing so is waived for failure to object. Packwood v. State, (1963) 244 Ind. 585, 193 N.E.2d 494.

Appellant claims the trial court erred in denying two motions for continuances. Trial had been set for January 12, 1981. The first motion for a continuance was filed January 5, in which the reason stated for seeking a continuance was unavailability of appellant's only witness in the case, due to impending surgery on that witness. The witness was a staff psychiatrist of a Kentucky...