Javonieo d. White v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 24 2017, 8:41 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Javonieo D. White, January 24, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1512-CR-2367
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-1505-F5-157
Mathias, Judge.
[1] Javonieo White (“White”), then a young inmate in the Allen County jail,
punched Cade Hetrick (“Hetrick”), his young jailer, while Hetrick was trying to
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discipline White for disobedience. White was convicted after a jury trial in
Allen Superior Court of Level 5 felony battery. The jury hung on the question
of whether White was a habitual offender. The trial court sentenced White to
the maximum six-year term in the Department of Correction on the battery
conviction and set a new trial on the habitual offender charge. In the meantime,
White appealed. While the appeal was pending, a new jury found White to be a
habitual offender, and the trial court imposed an additional term of four years
for a ten-year aggregate sentence. White appealed again. His consolidated
appeal is now before us.
[2] White claims that the State did not disprove his affirmative defense of self-
defense beyond a reasonable doubt, that the trial court abused its discretion in
denying his motion for a mistrial, and that the trial court was without
jurisdiction to try the habitual offender charge.
[3] We affirm.
Facts and Procedural Posture
[4] The facts below were much disputed. We state them here in the light most
favorable to White’s conviction.
[5] Around lunchtime on April 20, 2015, White was standing outside his jail cell,
number 1316 on the upper tier of the “B” block of the Allen County jail. Every
day at 12:30 p.m., first-shift guards would “lock down” the jail — that is,
ensure that all inmates were in their cells with the doors locked — to prepare for
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the regular shift change at 2:00 p.m. White was waiting for Hetrick to come
lock down his cell.
[6] White was frustrated with Hetrick. Earlier that morning, Hetrick had come to
White’s cell and found him sleeping when he ought to have been up for roll
call. Hetrick woke White and ordered him to show his identifying wristband,
but White only stuck his head out from under the blanket. The two then
exchanged heated language and White felt belittled. From White’s perspective,
this was but the latest in a string of insults from Hetrick over the last few days in
incidents that were not further described. From Hetrick’s perspective, before
that morning he had “no reason to dislike” White, and he always tried to treat
every inmate equally. Tr. p. 223.
[7] White had vented his frustrations over the phone shortly before lunch in
separate phone calls to two young women. “I might be in the hole1 by tonight,”
he told the first. Ex. Vol., State’s Ex. 9.2 “Why?” she asked with alarm, “Don’t
start that . . . , oh my gosh!” Id. “Because [Hetrick] was talking shit to me
today,” White replied, and “I’m finna tryna3 fight [him]. . . . [He’s] disrespectful
. . . . I’m gonna show [him].” Id. “What you gonna get outta that?” she asked
1
That is, “disciplinary segregation.” See Tr. pp. 202–03; Stucker v. State, No. 46A05-1403-CR-117, 2015 WL
520911, at *4 fn.2 (Ind. Ct. App. Feb. 9, 2015).
2
Calls to and from inmates in the Allen County jail are recorded. Heavily edited recordings of the two phone
calls made by White on April 20, 2015, were heard by the jury but not transcribed in the record.
3
That is, “intend to” or “will.” Mark Liberman, Finna and Tryna, Language Log (Aug. 5, 2005, 9:47 AM),
http://itre.cis.upenn.edu/~myl/languagelog/archives/002378.html.
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sensibly. Id. “I’m just gonna see,” White replied, “I’m just gonna go in the
room, and when I go in the room, he come do his checks, I’m gonna just be
like, ‘What’s up? You talking all that shit. Take your radio off and come in here
and bump.”4 Id. “[Hetrick has] been telling all the older [inmates] on the block,
like, ‘Yeah, y’all better get him. He’s gonna make me fuck him up,’” White told
the second young woman, “I’m like, ‘Alright, we’re gonna see who gonna fuck
who up.’” Id. “I love you,” White concluded, “and if I don’t call you later on
today, it’s ’cause I’m in the fucking hole.” Id.[8] In the course of locking down “B” block, Hetrick climbed the stairs to the upper
level and saw White standing outside his cell. Hetrick ordered White inside.
White refused. “What was with all the shit you was talking this morning?”
White demanded. Tr. p. 198. Hetrick persisted, and White eventually relented.
Once White was inside the cell, Hetrick tried to shut the cell door. The door
popped back open. Feeling resistance as he tried to shut the door, and
concluding that White had pushed it back open, Hetrick decided to take White
to disciplinary segregation for “refusing a lock down [and] disrupting normal
jail operations,” Tr. p. 202, a decision the Allen County jail entrusts to the
discretion of its guards. Tr. p. 220.
4
That is, “fight” or “provoke a fight.” See Tr. p. 422 (State: “[Y]ou said you were gonna fight Officer Hetrick
. . . ?” White: “Yes, ma’am.” State: “[Y]ou were gonna bump with him?” White: “Yes, ma’am.”); J.B. v.
State, No. 49A05-1410-JV-457, 2015 WL 4065808, at *1 (Ind. Ct. App. July 1, 2015).
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[9] Hetrick left the cell door open, backed away from the cell, and radioed for the
help of Daniel Webb (“Webb”), a fellow corrections officer working nearby, in
taking White to segregation. While Hetrick waited for Webb, Hetrick
repeatedly ordered White to move to the back of his cell and face the wall to be
handcuffed; White repeatedly told Hetrick to take his radio off, come into the
cell, and fight him. White was “taking somewhat of a fighter stance towards”
Hetrick. Tr. p. 204. Webb arrived within moments of hearing Hetrick’s call for
help.
[10] Seeing Webb, Hetrick entered White’s cell. Webb followed. Hetrick again
ordered White to face the wall, but White still refused. “He had his hands
balled up in a fist and was just staring Hetrick down.” Tr. p. 238. Finally, White
turned to the wall, still keeping his hands in a fist. Hetrick and Webb then
“decided to push [White] up against the wall to gain a tactical advantage on
him.” Id. Hetrick grabbed or had already grabbed White and the two guards
“tried to get [White against the wall] as quickly as [they] could.” Tr. p. 252. In
response, White spun and flailed in an attempt to shake Hetrick’s grip on him,
striking Hetrick in the face as he did, and grabbed the top rail of the cell’s
double bunk bed, anchoring himself to it. “I’ll cuff up if he lets go,” White told
Webb. Tr. p. 239. “We can’t do that,” Webb replied. Id.[11] Hetrick put out a general call over the radio for the immediate help of any
available jail officer. Webb struck White once successfully on the forearm to
loosen his grip on the bunk bed rail. Webb and Hetrick then took White to the
ground face down, Webb restraining White’s lower body and Hetrick his upper.
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As Hetrick struggled to control White’s left side, White turned and punched
Hetrick from below in the left eye with his right fist. “It did not feel good,”
Hetrick admitted. Tr. p. 209. At that moment, though he did not see the punch,
Webb heard White say, “That’s what you get.” Tr. p. 243. To avoid getting
punched again, Hetrick “placed [his] right arm around the back of [White’s]
neck [so] as to have his head [close], and . . . had his right arm secured in with
it [so] as to not choke him.” Tr. p. 225.
[12] Webb gained or already had control of White’s left arm and started punching
White’s left shoulder. “[Webb] just hit as much meat as [he] could until [the
guards] got [control of White’s] right arm.” Tr. p. 245. These means eventually
achieved their end, and White allowed himself to be handcuffed. At that
moment, the jail officers responding to Hetrick’s general call for help, delayed
by a miscommunication as to White’s cell number, entered White’s cell and
relieved Hetrick and Webb.
[13] Hetrick suffered redness, swelling, and bruising around his left eye where White
had punched him. April 20, 2015, was Hetrick’s last scheduled work day that
week, and he returned to work after his regular two days off. Neither Webb nor
White had injuries requiring medical attention.
[14] The State charged White with Level 5 felony battery to a public safety officer
causing bodily injury. The State alleged further that White was a habitual
offender. White’s case was tried to an Allen County jury over two days from
October 27, 2015, to October 28, 2015.
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[15] On the second day of trial, White took the stand in his own defense. On cross-
examination, White said that he followed every order he was given by Hetrick
and Webb to the extent he felt was consistent with his own safety. White grew
frustrated with the State’s line of questioning in response to that claim and
addressed Hetrick directly:
[White:] I’m just saying, is you — you have —you
understand what you doing. You understand what you doing,
Hetrick.
[State:] Excuse me—
[White:] You’re lying to these people—
[State:] Excuse me—
[White:] Listen, Judge—
[Court:] No, no—
[State:] Excuse me, Your Honor—
[White:] You’re lying to these people.
Tr. p. 440. Confusion briefly reigned as White continued to protest that he did
not “care about y’all procedure no more,” Tr. p. 441, until the court’s bailiffs
dissuaded him and the judge had the jury removed from the courtroom. The
judge acknowledged White’s frustration and the importance he attached to
telling his side of the story to the jury, and recessed the court for lunch.
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[16] After lunch, before the jury was brought back into the courtroom, White by
counsel moved for a mistrial. Counsel argued that the court’s four bailiffs had
responded too aggressively when they “pretty much surrounded” the witness
stand as White spoke, Tr. p. 447, even though White had remained seated and
had not shown or threatened any physical act. The bailiffs’ response, counsel
argued, created a prejudicial impression on the jury that could not be dispelled.
[17] The judge denied White’s motion, and put on the record the following account
of the incident:
There were four bailiffs . . . . [Only one was in uniform.] I put my
hand up and indicated to [two of them] to stand down, basically,
that it was well in hand and under control. And I think it’s
important to note that the security concerns in this courtroom
were heightened significantly by the disruption by the Public
Defender’s investigator . . . .5 [S]o the officers’ concern was
heightened by that disruption and that extraordinarily
disrespectful show . . . . Mr. White was clearly agitated by the
State’s questions . . . . I got the jury out of here as quickly as I
could. . . . [White] wasn’t surrounded. There were two bailiffs,
one on either side of him.
5
This earlier incident was not recorded as it happened, but was described by the court and defense counsel
during the ruling on White’s mistrial motion. As defense counsel was examining White, an investigator from
the public defender’s office, in a matter unconnected to White’s case, entered the courtroom unbidden and
greatly agitated, trying to communicate something to defense counsel. The investigator was ejected over his
loud protestation. Neither the court, nor the State, nor defense counsel knew why the investigator did so, and
the court did not hold White or counsel responsible for it. See Tr. pp. 451–52, 454–55.
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Tr. pp. 450-53, 455. When the jurors returned to the courtroom, the judge
admonished them not to allow the bailiffs’ response to White’s outburst to enter
into their deliberations.
[18] At the end of the second day, both parties rested. The jury returned a verdict of
guilty on the battery charge. The jury was then asked to find White a habitual
offender but could not reach a unanimous verdict on that question. The jury
was dismissed and the judge declared a mistrial as to the habitual offender
phase.
[19] A new trial on the habitual offender charge was set for January 12, 2016, but
White asked to be sentenced on the battery conviction before then. The court
agreed and sentenced him to the six-year statutory maximum term at a hearing
on December 2, 2015. At that hearing, White said he intended to hire private
counsel for an appeal but thought he would have to wait until after the new trial
to do so. Defense counsel expressed concern that this court’s “inflexib[ility]”
with respect to untimely notices of appeal could work forfeiture of White’s right
to appeal before the new trial. Sentencing Tr. p. 15. The court agreed and
appointed the public defender’s office to perfect White’s appeal before it became
time-barred. White’s first notice of appeal was filed on December 30, 2015. The
clerk of Allen Superior Court informed us that the record in that appeal was
complete on January 26, 2016.
[20] In the meantime, White’s new habitual offender trial was reset to March 29,
2016. On that day, a new jury found White to be a habitual offender. On April
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5, 2016, the court enhanced the six-year sentence imposed on White on
December 2, 2015, by four years, for an aggregate sentence of ten years.
White’s second notice of appeal was filed on April 8, 2016, together with a
motion to consolidate the second and the first appeals. We granted the motion.
Docket, “Order” (Apr. 18, 2016). The clerk of Allen Superior Court informed
us that the second record was complete on June 10, 2016.
Discussion and Decision
[21] White claims that the State did not disprove his affirmative defense of self-
defense beyond a reasonable doubt, that the trial court abused its discretion in
denying his motion for a mistrial, and that the trial court was without
jurisdiction to try the habitual offender charge.
I. A Reasonable Jury Could Have Found That White Provoked Hetrick’s
Conduct to Retaliate Against Him, Defeating His Claim of Self-Defense
[22] We review challenges to the sufficiency of the evidence rebutting an accused’s
defense under the same standard as any sufficiency challenge. Wilson v. State,
770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh evidence nor re-evaluate
witness credibility. Id. The evidence is viewed in the light most favorable to the
judgment below, which will not be disturbed unless no reasonable trier of fact
could have reached the same conclusion. Id.[23] Due process puts the burden on the State to prove the elements of its case
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); Powers v.
State, 540 N.E.2d 1225, 1227 (Ind. 1989). Due process therefore requires careful
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allocation of burdens of proof with respect to an accused’s defenses. See
Mullaney v. Wilbur, 421 U.S. 684 (1975). In cases of self-defense, “[w]hen a
claim of self-defense is raised and finds support in the evidence, the State has
the burden of negating at least one of the necessary elements” of the defense.
Wilson, 770 N.E.2d at 800.
[24] To prove Level 5 felony battery, the State had to prove beyond a reasonable
doubt that White knowingly or intentionally touched Hetrick, a public safety
official, in a rude, insolent, or angry manner that caused Hetrick bodily injury
while he was engaged in his official duties. Ind. Code §§ 35-42-2-1(a)(2)
(“employee of a penal facility” as public safety official), (c)(1) (simple battery),
(g)(5)(A) (battery to a public safety official).
[25] Proof of these elements notwithstanding, White’s conduct was justified if it was
done in self-defense. Moon v. State, 823 N.E.2d 710, 716 (Ind. Ct. App. 2005)
(citing Jennings v. State, 262 Ind. 476, 477-78, 318 N.E.2d 358, 359 (1974) (self-
defense as defense of justification to battery)), trans. denied. White was justified
in using reasonable force against Hetrick if White reasonably believed it was
necessary to protect himself from Hetrick’s use of unlawful force. I.C. § 35-41-3-
2(i)(1) (self-defense against public servants). This justification was cut off,
however, if White provoked Hetrick’s conduct with the intent to cause him
bodily injury. Id. § (j)(2).
[26] No published decision of this court or our supreme court has construed Section
(j)(2) (provocation cuts off self-defense against public servants), but we take
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guidance from decisions construing an identical provision applicable to simple
self-defense claims. See I.C. § 35-41-3-2(g)(2) (provocation cuts off simple self-
defense); see also, e.g., Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011)
(Defendant cannot prevail on self-defense if he “provoke[d], instigate[d], or
participate[d] willingly in the violence . . . .”), trans. denied.
[27] In Henson v. State, our supreme court held that Henson, a prisoner, was not
entitled to a self-defense instruction in a prosecution for battery to a prison
officer. 786 N.E.2d 274, 276 (Ind. 2003). Henson had thrown urine and feces at
the officer as the officer came to take Henson into “a more restrictive cell block
. . . .” Id. Henson argued that the officer’s past acts had put him in reasonable
fear of violence at the officer’s hands, justifying his conduct. The court
disagreed, holding that Henson provoked the encounter by previously cursing
prison officers, threatening to kill them, and “refus[ing] several orders to be
locked up in his cell.” Id. at 278. Further, the court held, Hensons’s preparation
for the officer’s arrival at his cell showed a retaliatory rather than defensive
motive. “While the criminal code is willing to excuse the use of force in certain
circumstances . . . , it does not countenance and will not sanction premeditated
retaliation for past” wrongs. Id.
[28] In Bryant v. State, we held that Bryant, a jail inmate, did not prevail on a claim
of self-defense in a prosecution for battery to a fellow inmate. 984 N.E.2d 240,
251 (Ind. Ct. App. 2013), trans. denied. Bryant had “provoked” the violence, “or
at least participated willingly in it,” when inter alia he “challenged [his victim]
to fight in his cell,” id., by saying, “[L]et’s go to the room . . . .” Id. at 244.
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[29] Here, the jury had before it sufficient evidence to find beyond a reasonable
doubt that White provoked Hetrick’s conduct with the intent to injure him.
White’s own words over the telephone on April 20, 2015, and at trial were the
most damning pieces of such evidence. Over the phone shortly before the jail
was locked down at 12:30 p.m., White said that he intended to retaliate against
Hetrick for his past perceived insults. Ex. Vol., State’s Ex. 9 (“[He’s]
disrespectful . . . . I’m gonna show [him].”). White already anticipated the
wrongfulness of his planned act, id. (“I might be in the hole by tonight.”),
undermining White’s claim that he was afraid rather than angry when Hetrick
approached his cell. As in Henson, White’s preparation for Hetrick’s arrival
permitted the jury to find a retaliatory rather than defensive motive. Id.
(“[W]hen I go in the room, he come do his checks, I’m gonna just be like, . . .
‘Take your radio off and come in here and bump.’”). White’s statement as he
punched Hetrick, “That’s what you get,” Tr. p. 243, confirmed that White’s
desire for retaliation still motivated him at the time of the struggle in his cell.
[30] Further, White provoked and instigated Hetrick to come into his cell by
pushing the cell door back open when Hetrick tried to close it and, as Hetrick
claimed and White admitted, by “offer[ing] [Hetrick] to come into [White’s]
room so [they] could settle it in a fight . . . .” Tr. p. 426. White’s “fighter
stance” toward Hetrick, Tr. p. 204, as Hetrick stood outside White’s cell
waiting on Webb, showed White’s willingness to fight even as Hetrick
presented no imminent threat to him. In his own words, White was eager to see
“who gonna fuck who up.” Ex. Vol., State’s Ex. 9.
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[31] There was sufficient evidence for the jury to find that White, by disobeying and
baiting Hetrick and Webb, manufactured an opportunity for a violent struggle,
which White used to retaliate against Hetrick for perceived past wrongs.
Accordingly, the jury was entitled to conclude that White’s defense of self-
defense was cut off by his “provo[cation of Hetrick] with the intent to cause
bodily injury to [Hetrick].” I.C. 35-41-3-2(j)(2). The law of self-defense does not
and cannot sanction White’s premeditated retaliation. Henson, 786 N.E.2d at
278. We reject White’s argument, that “amidst . . . conflicting testimony there
is consistent evidence which supports the claim that White acted in self[-
]defense,” Appellant’s Br. p. 22, as an invitation to reweigh the evidence.
II. The Bailiffs’ Measured Reaction to White’s Outburst on the Stand Did Not
Prejudice or Inflame the Jury Against Him
[32] Next, White urges us to find reversible error in the trial court’s denial of his
motion for a mistrial after White addressed Hetrick from the stand and touched
off an allegedly prejudicial reaction from court bailiffs in view of the jury. We
find no error here.
[33] Mistrial is an “extreme” remedy of last resort. Harris v. State, 824 N.E.2d 432,
439 (Ind. Ct. App. 2005). Grant of a mistrial is within the sound discretion of
the trial court. Id. In reviewing the trial court’s decision for an abuse of that
discretion, we defer to the trial court’s unique ability to “gauge the
circumstances and [their] probable impact on the jury.” Id. To prevail on
appeal, White must establish that the bailiffs’ reaction so prejudiced and
inflamed the jury against him that he was placed in a position of grave peril to
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which he should not have been subjected. Id. The gravity of the peril is
measured by the circumstances’ probable persuasive effect on the jury’s
decision. Id. A trial court usually insulates itself from review by admonishing
the jury to disregard the allegedly prejudicial and inflammatory event. Alvies v.
State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans. denied.
[34] The State urges us to resolve White’s claim in reliance on the rule that a
defendant may not premise a mistrial on his own misconduct. Appellee’s Br. p.
19 (“Although [White] tries to frame his claim as one based on the response of
courtroom security, the fact remains that it was [White’s] outburst that
prompted that response.”). This is a correct statement of the law, see Reynolds v.
State, 625 N.E.2d 1319, 1321 (Ind. Ct. App. 1993), but it is inapplicable here. A
defendant is not made to suffer any and every act by court officers so long as it
is arguably reactive. The contrary would give the State a kind of heckler’s veto
over a defendant’s right to a fair and impartial trier of fact. Just as a defendant
by his own conduct cannot manufacture grounds for a mistrial where none
existed before, so officers of the State by their own conduct cannot
simultaneously prejudice the fact-finder and deny a defendant relief from that
prejudice.
[35] The State has the better argument when it says the bailiffs’ reaction did not
gravely imperil White, and that any potential prejudice was cured by the trial
court’s admonition to the jury to disregard what the bailiffs did. Appellant’s Br.
pp. 19-21. We agree, deferring to the trial court’s unique position to evaluate
the likely impact of the bailiffs’ reaction on the jury. As described by the trial
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court, that reaction was measured and went no further than necessary to restore
order in the courtroom. Two bailiffs, neither in uniform, approached White and
stood on either side of him to dissuade him from further disrupting the
proceedings. The bailiffs did not harangue or demean White; they said only,
“You’re done,” “Stop,” and “Stop talking.” Tr. p. 442. There is no evidence
that the bailiffs physically restrained or physically threatened White to get his
cooperation. When the jury returned to the courtroom, White was still present
and physically unrestrained, as he had been before. In short, there is no
evidence to support White’s contention that the “actions of the court officers
here signaled to the jury their views on the guilt of White.” Appellant’s Br. p.
25. To the extent that any such signal could have been received by a juror, it
was dispelled by the judge’s immediate admonition to disregard the bailiffs’
reaction from jury deliberations.
[36] The trial court did not abuse its discretion when it denied White’s motion for a
mistrial.
III. The Trial Court Had Jurisdiction to Try the Habitual Offender Charge
Because There Was No Final Judgment Before It Did
[37] Finally, White claims that the trial court lacked jurisdiction over his case after
January 26, 2016, and that its March 29, 2016, judgment against him on the
habitual offender charge is therefore void. The clerk of Allen Superior Court
notified us that the record in White’s first appeal was complete on January 26,
2016. On that date, White argues, the trial court lost and we assumed
jurisdiction over his case. Ind. Appellate Rule 8 (“The Court on Appeal
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acquires jurisdiction on the date the Notice of Completion of Clerk’s Record is
noted in the Chronological Case Summary.”); Appellant’s Br. p. 28.
[38] White’s argument fails. Any jurisdictional defect in White’s case was in this
court’s jurisdiction, not the trial court’s. We have jurisdiction over appeals
“from Final Judgments.” App. R. 5(A). As relevant here, a final judgment
“disposes of all claims as to all parties.” Id. 2(H)(1). It “reserves no further
question or direction for future determination.” Bueter v. Brinkman, 776 N.E.2d
910, 913 (Ind. Ct. App. 2002) (quoting Thompson v. Thompson, 259 Ind. 266,
269, 286 N.E.2d 657, 659 (1972)). The December 4, 2015, judgment of
conviction against White on the battery charge was not the final judgment of
the trial court in his case because, by reserving the habitual offender charge for
future determination, it did not dispose of all the State’s claims against White.
[39] In criminal cases, sentences are final judgments. Hopkins v. State, 420 N.E.2d
895, 896 (Ind. Ct. App. 1981) (“[D]efendant has never been sentenced. . . .
Thus, we have no final judgment . . . .”); Terrell v. State, 180 Ind. App. 634, 636,
390 N.E.2d 208, 209 (1979) (“[S]entencing is final judgment.”). The
enhancement to the sentence of a habitual offender is inextricable from the
sentence itself and travels with it. I.C. § 35-50-2-8(j) (“[Habitual offender status]
results in an enhanced sentence. . . . The court shall attach the . . . enhancement
to the felony conviction with the highest sentence imposed . . . . If [that
conviction] is set side or vacated, the court shall . . . apply the . . . enhancement
to the felony conviction with the next highest sentence . . . .”). Thus, no
judgment in a criminal case is final and appealable under Appellate Rule
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2(H)(1) until pending enhancements to the sentence have been decided and
applied by the sentencing court.6
[40] The clerk of Allen Superior Court notified us that the record in White’s second
appeal, taken after imposition of the habitual offender enhancement, was
complete on June 10, 2016. We acquired jurisdiction over White’s case on that
date. App. R. 8. Before then, we took no action on White’s case other than to
extend the time to file briefs, affecting no party’s substantial rights, see id. 66(A)
(harmless error), and to consolidate the two appeals on April 18, 2016, in aid of
our jurisdiction over one final judgment. See id. 8 (“Prior to [the] date [on which
the Court on Appeal acquires jurisdiction], the Court on Appeal may . . .
exercise limited jurisdiction in aid of its appellate jurisdiction . . .”).
[41] The defect in our jurisdiction was cured on June 10, 2016. There was never any
defect in the trial court’s jurisdiction before it decided and applied the habitual
offender enhancement to White’s sentence, thereby disposing of all the State’s
claims against White. Even if the unenhanced battery sentence had been
sufficiently severable from the habitual offender enhancement to be an
appealable final judgment, that would still have left the trial court’s jurisdiction
6
This does not, of course, allow the State in such cases to postpone indefinitely a defendant’s appeal of a
conviction by delaying retrial on a sentence enhancement. A defendant in White’s position should seek entry
of an appealable final judgment on fewer than all claims or issues under Indiana Trial Rule 54(B) and
Appellate Rule 2(H)(2).
Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017 Page 18 of 19
over the habitual offender charge undisturbed. We reject White’s contrary
argument.
Conclusion
[42] For these reasons, White’s defense of self-defense was disproved by sufficient
evidence, the trial court did not abuse its discretion in denying White’s motion
for a mistrial, and the trial court had jurisdiction to enhance White’s sentence as
a habitual offender. White’s conviction is affirmed in all respects.
[43] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1512-CR-2367 | January 24, 2017 Page 19 of 19