Steven Magness v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 03 2016, 9:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Magness, February 3, 2016
Appellant-Defendant, Court of Appeals Cause No.
49A02-1505-CR-322
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow
Appellee-Plaintiff. Davis, Judge
The Honorable Patrick Murphy,
Magistrate
Trial Court Cause No.
49G16-1411-F6-52938
Barnes, Judge.
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Case Summary
[1] Steven Magness appeals his status as an habitual offender. We reverse and
remand.
Issues
[2] Magness raises two issues, which we restate as:
I. whether the trial court properly allowed a
belated habitual offender allegation filing; and
II. whether the evidence is sufficient to sustain the
habitual offender finding.
Facts
[3] On November 26, 2014, the State charged Magness with Level 6 felony
residential entry, Level 6 felony intimidation, Class A misdemeanor theft, and
Class A misdemeanor battery resulting in bodily injury. On March 24, 2015,
the State filed an allegation that Magness was an habitual offender, and
Magness objected to the filing. A jury trial was held on March 25, 2015, and
the jury found Magness guilty of Level 6 felony residential entry and Class A
misdemeanor battery resulting in bodily injury. The jury also found that
Magness was an habitual offender. The trial court sentenced Magness to two
years in the Department of Correction enhanced by four years for his status as
an habitual offender. Magness now appeals.
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Analysis
I. Belated Habitual Offender Filing
[4] Magness challenges the State’s belated habitual offender filing. Indiana Code
Section 35-34-1-5(e) provides:
An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made at
least thirty (30) days before the commencement of trial.
However, upon a showing of good cause, the court may permit
the filing of a habitual offender charge at any time before the
commencement of the trial if the amendment does not prejudice
the substantial rights of the defendant. If the court permits the
filing of a habitual offender charge less than thirty (30) days
before the commencement of trial, the court shall grant a
continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.
The habitual offender charge here was filed one day before trial and was not
timely.
[5] Our supreme court has held that “‘once a trial court permits a tardy habitual
filing, an appellant must move for a continuance in order to preserve the
propriety of the trial court’s order for appeal.’” Kidd v. State, 738 N.E.2d 1039,
1042 (Ind. 2000) (quoting Williams v. State, 735 N.E.2d 785, 789 (Ind. 2000)).
There is no exception to this rule even where a defendant has asked for a speedy
trial. Id. If the defendant needs additional preparation time, then he or she
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may seek a continuance of the habitual offender phase of the proceedings
without affecting his rights to a speedy trial on the main charge. Id. Although
Magness objected to the filing, he did not request a continuance. Because
Magness did not move for a continuance, this issue is waived for review. 1 See
id. (holding that the defendant waived his argument regarding the untimely
filing of an habitual offender allegation where he did not request a
continuance).
II. Sufficiency of the Evidence
[6] Next, Magness argues that the evidence is insufficient to sustain the finding that
he is an habitual offender. When an habitual offender finding is challenged, we
do not reweigh the evidence but rather look at the evidence in the light most
favorable to the verdict. White v. State, 963 N.E.2d 511, 518 (Ind. 2012). “If an
appellate court deems the evidence insufficient, [an] habitual-offender
determination must be vacated.” Id.[7] Under Indiana Code Section 35-50-2-8(a), the State “may seek to have a person
sentenced as a habitual offender for a felony by alleging, on one (1) or more
pages separate from the rest of the charging instrument, that the person has
accumulated the required number of prior unrelated felony convictions in
1
We decline Magness’s request to reconsider the requirement for a continuance motion. See, e.g., Horn v.
Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005) (“It is not this court's role to reconsider or declare
invalid decisions of our supreme court.”).
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accordance with this section.” At the time of Magness’s offense, subsection (d)
provided:
A person convicted of a Level 6 felony[2] is a habitual offender if
the state proves beyond a reasonable doubt that:
(1) the person has been convicted of three (3) prior unrelated
felonies; and
(2) if the person is alleged to have committed a prior
unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the
person was released from imprisonment, probation, or parole
(whichever is latest) and the time the person committed the
current offense.
Ind. Code § 35-50-2-8(d) (footnote added).
2
The statute was amended effective July 1, 2015, to substitute “felony offense” for “Level 6 felony.” See
Pub. L. No. 238, 2015, § 17 (eff. July 1, 2015).
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[8] The habitual offender charging information alleged that Magness had
previously been convicted of three prior, unrelated felonies and not more than
ten years had elapsed between the time that he was released from his sentence
to the instant offense. The three prior, unrelated felonies included a September
12, 2005 conviction for Class D felony criminal recklessness, a November 29,
2007 conviction for Class D felony obstruction of justice, and an October 6,
2009 conviction for Class C felony battery.
[9] Magness first argues that the prior arrests were not sufficiently linked to him to
prove that he committed the prior offenses. He points out that Exhibit 6, which
was the identification card containing Magness’s thumbprint, was not admitted
into evidence. However, a defendant’s identification “can be independently
established by fingerprint testimony.” Straub v. State, 567 N.E.2d 87, 93 (Ind.
1991). Matthew Weisjahn, the fingerprint examiner, testified that he compared
Magness’s thumbprint to the arrest prints for the prior convictions and that the
fingerprints on all of the records matched. We conclude there was sufficient
evidence to show that Magness was the same person convicted in the prior
offenses.
[10] Next, Magness argues that the evidence was insufficient to show that the prior
offenses were unrelated. A person has accumulated two (2) or three (3) prior
unrelated felony convictions for purposes of Indiana Code Section 35-50-2-8
only if:
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(1) the second prior unrelated felony conviction was
committed after commission of and sentencing for the first
prior unrelated felony conviction;
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after
commission of and sentencing for the second prior
unrelated felony conviction; and
(3) for a conviction requiring proof of three (3) prior unrelated
felonies, the third prior unrelated felony conviction was
committed after commission of and sentencing for the
second prior unrelated felony conviction.
Ind. Code § 35-50-2-8(f). To be “unrelated,” the commission of the second
felony must be subsequent to the sentencing for the first, and the sentencing for
the second felony must have preceded the commission of the current felony for
which the enhanced sentence is being sought. Warren v. State, 769 N.E.2d 170,
171 n.2 (Ind. 2002). “Failure to prove the proper sequencing requires that the
habitual offender determination be vacated.” Id.[11] During the habitual offender phase of the trial, the State presented an arrest
report and the judgment of conviction concerning the criminal recklessness
conviction. Those documents indicated that the offense was committed on
January 5, 2004, and that Magness was sentenced on September 12, 2005. The
State also presented evidence of an arrest report and a judgment of conviction
concerning the obstruction of justice conviction. Those documents indicated
that Magness was arrested pursuant to a warrant on October 24, 2007, and that
he was sentenced on November 29, 2007. None of the documents presented by
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the State, however, indicate the date of the obstruction of justice offense. The
State then presented an arrest report and a judgment of conviction concerning
the battery conviction. Those documents indicated that Magness committed
the offense on March 29, 2009, and that he was sentenced on October 6, 2009.
[12] Magness properly points out that, because the State failed to present evidence
concerning the date of the obstruction of justice offense, there was no evidence
that “the second prior unrelated felony conviction was committed after
commission of and sentencing for the first prior unrelated felony conviction.”
I.C. § 35-50-2-8(f). The State, however, argues that the jury could reasonably
infer that the offense took place after September 12, 2005, because he was not
arrested until October 24, 2007.
[13] Although it is certainly possible that the obstruction of justice offense took place
long after Magness was sentenced for the criminal recklessness offense, the
State presented no evidence to support such a conclusion. Indeed, the State
presented no evidence whatsoever concerning the facts and circumstances of the
obstruction of justice offense. Given the complete lack of evidence in this
regard, an inference that the offense took place after the sentencing for the
criminal recklessness offense would be too speculative to constitute proof
beyond a reasonable doubt. See, e.g., McManomy v. State, 751 N.E.2d 291, 293
(Ind. Ct. App. 2001) (“Because the State offered no evidence as to the
commission dates of each felony, it could not have proved the second felony
was committed after the date of sentencing of the first.”).
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[14] Likewise, the passage of time between the first and second convictions is
insufficient to support an inference that they were unrelated for purposes of the
habitual offender statute. See McCovens v. State, 539 N.E.2d 26, 31 (Ind. 1989)
(holding that the evidence was insufficient to show the required sequence even
though the prior felony convictions were separated by nearly twenty years);
McManomy, 751 N.E.2d at 293 (holding that it would be improper to infer that
an individual’s prior convictions satisfied the sequence requirements where the
convictions were two years apart). We conclude that the State presented
insufficient evidence to support the habitual offender determination. We
therefore reverse Magness’s habitual offender adjudication and remand with
instructions to vacate the enhancement imposed. We note, however, that “the
Double Jeopardy Clause does not prevent the State from re-prosecuting a
habitual offender enhancement after conviction therefore has been reversed on
appeal for insufficient evidence.” Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind.
2005), cert. denied; see also Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012).
Conclusion
[15] Magness waived his argument that the habitual offender filing was untimely by
failing to request a continuance. However, the evidence is insufficient to
sustain his status as an habitual offender. We reverse and remand.
[16] Reversed and remanded.
Robb, J., and Altice, J., concur.
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