Aaron Blanche v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                     FILED
    regarded as precedent or cited before any                            Dec 14 2018, 10:19 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                               Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                          and Tax Court
    APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
    Aaron Blanche                                           Curtis T. Hill, Jr.
    Michigan City, Indiana                                  Attorney General of Indiana
    Chandra K. Hein
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Aaron Blanche,                                          December 14, 2018
    Appellant-Petitioner,                                   Court of Appeals Case No.
    18A-CR-1619
    v.                                              Appeal from the Marion Superior
    Court
    State of Indiana,                                       The Honorable Stanley E. Kroh,
    Appellee-Respondent.                                    Magistrate
    Trial Court Cause No.
    49F15-9203-PC-44282
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018             Page 1 of 9
    Case Summary
    [1]   Pro-se litigant Aaron Blanche (“Blanche”) appeals the denial of his Motion to
    Dismiss Felony Enhancement, arguing that his 1992 conviction for Carrying a
    Handgun Without a License was improperly elevated to a Class D felony. 1 The
    State argues the elevation was proper—but, as a threshold matter, challenges
    the jurisdictional footing of this appeal. The State asserts, inter alia, that the
    appeal is improperly before us because Blanche has not expressly pursued a
    petition for post-conviction relief. However, for the reasons herein, we address
    this case as an appeal from the denial of a petition for post-conviction relief.
    [2]   We affirm.
    Facts and Procedural History
    [3]   In 1992, the State filed a two-part information alleging (1) that Blanche had
    committed Carrying a Handgun Without a License as a Class A misdemeanor
    and (2) that Blanche had a prior felony conviction that would elevate the
    offense to a Class D felony. As to the prior felony, the information stated:
    AARON BLANCHE, on or about March 27, 1992, was
    previously convicted of a felony within fifteen (15) years before
    the date of this offense, that is: Theft in Marion County Superior
    1
    
    Ind. Code §§ 35-47-2-1
    , -23.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 2 of 9
    Court Number Two (II), Cause Number 49G028912CF142445,
    on June 14, 1990 . . . .
    Appellee’s App. Vol. 2 at 4. Blanche and the State reached an agreement
    whereby Blanche would plead guilty to the Class D felony and the State would,
    among other things, recommend a specific sentence. The trial court accepted
    the plea and entered judgment of conviction on the Class D felony.
    [4]   In January 2014, Blanche filed a petition for post-conviction relief as to the
    instant conviction, but later sought and obtained dismissal without prejudice.
    At some point, Blanche also sought post-conviction relief concerning the 1990
    cause identified in the charging information. In a February 2016 order, that
    post-conviction court concluded that the only felony in that cause—Auto
    Theft—had been incorrectly entered as a Class C felony. The court directed the
    clerk to issue an amended Abstract of Judgment showing “Count 1 – Auto
    Theft, a Class D felony.” Appellant’s App. Vol. II at 15.
    [5]   Blanche, pro se, filed the instant Motion to Dismiss Felony Enhancement on
    May 11, 2018. As an exhibit, Blanche provided the post-conviction order
    concerning his Auto Theft conviction. Blanche pointed out that his charging
    information identified a prior felony conviction for Theft. Blanche argued that
    “the information was defective” and that the elevation was “based off an
    invalid conviction for theft that did not exist.” 
    Id. at 10
    . Blanche asked the
    court to dismiss the elevation and “let the record reflect that the handgun
    conviction show as a Class A misdemeanor.” 
    Id. at 11
    . The court summarily
    denied relief, entering the following remarks: “Whether the prior felony
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 3 of 9
    conviction was a Class C felony or a Class D felony and used as part two of
    count one is irrelevant. The order from G02 does not show your plea
    agreement should be set aside.” 
    Id. at 9
    .
    [6]   Blanche now appeals.
    Discussion and Decision
    [7]   At the outset, we address the procedural posture of this case. “Generally, a trial
    judge has no authority over a defendant after he or she pronounces [a]
    sentence,” and “[a]ny continuing jurisdiction after final judgment has been
    pronounced must either derive from the judgment itself or be granted to the
    court by statute or rule.” State v. Fulkrod, 
    735 N.E.2d 851
    , 852 (Ind. Ct. App.
    2000), summarily aff’d. Here, more than twenty years after sentencing—well
    after any deadline for direct appeal—Blanche filed a document with the
    following title: Motion to Dismiss Felony Enhancement. Therein, Blanche
    focused on sections of the Indiana Code that, in general, relate only to pre-trial
    motions to dismiss a charging information. At bottom, however, Blanche
    sought to withdraw aspects of his guilty plea, requesting that the court “dismiss
    [his] felony enhancement.” Appellant’s App. Vol. II at 6. Indeed, the court
    recognized the nature of Blanche’s request, remarking that “[t]he order from
    G02 does not show your plea agreement should be set aside.” Id. at 9.
    [8]   Indiana Code Section 35-35-1-4(c) provides that “[a] motion to vacate judgment
    and withdraw the plea . . . shall be treated by the court as a petition for
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 4 of 9
    postconviction relief under the Indiana Rules of Procedure for Postconviction
    Remedies.” Thus, Blanche’s claim was properly before the court as a petition
    for post-conviction relief—and we treat this case as an appeal from the denial of
    that petition. See State v. Oney, 
    993 N.E.2d 157
    , 161 (Ind. 2013) (“A motion to
    set aside a guilty plea is treated as a petition for post-conviction relief.” (citing
    I.C. § 35-35-1-4)); cf. State v. Arnold, 
    27 N.E.3d 315
    , 319 (Ind. Ct. App. 2015)
    (“[I]n the interests of judicial economy we will treat [the] motion to set aside
    habitual offender enhancement as a request for postconviction relief and review
    the trial court’s judgment accordingly.”), trans. denied. We therefore discern no
    jurisdictional impairment and proceed to the merits of this case. See I.C. § 35-
    35-1-4(e) (“The order of the court upon a motion made under subsection . . . (c)
    of this section shall constitute a final judgment from which the moving party or
    the [S]tate may appeal as otherwise provided by law.”); Ind. Post-Conviction
    Rule 1(7) (“An appeal may be taken by the petitioner or the State from the final
    judgment in this proceeding, under rules applicable to civil actions.”); Ind.
    Appellate Rule 5 (providing jurisdiction over appeals from final judgments).
    [9]   In post-conviction matters, “[t]he petitioner has the burden of establishing his
    grounds for relief by a preponderance of the evidence.” P-C.R. 1(5); see also I.C.
    § 35-35-1-4(e) (identifying this burden of proof for post-sentencing motions
    involving the withdrawal of a plea of guilty). Moreover, “[i]f the pleadings
    conclusively show that petitioner is entitled to no relief, the court may deny the
    petition without further proceedings.” P-C.R. 1(4)(f); see also Godby v. State, 
    809 N.E.2d 480
    , 482 (Ind. Ct. App. 2004) (“Where the post-conviction court is able
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 5 of 9
    to determine, after reading the petition and consulting the record, that there is
    no factual issue in dispute, a summary denial of a petition for post-conviction
    relief is proper.”), trans. denied. What is more, when the petitioner appeals the
    denial of his petition, he is in the position of appealing a negative judgment.
    Humphrey v. State, 
    73 N.E.3d 677
    , 681 (Ind. 2017). “In order to prevail on an
    appeal from the denial of post-conviction relief, a petitioner must show that the
    evidence leads unerringly and unmistakably to a conclusion opposite that
    reached by the post-conviction court.” 
    Id.
     Moreover, in conducting our
    review, “we do not defer to the court’s legal conclusions,” and will reverse the
    court’s findings and judgment only upon a showing of clear error—that which
    leaves us with a definite and firm conviction that a mistake has been made. 
    Id.
    [10]   Pursuant to Indiana Code Section 35-35-1-4(c)—which directs us to treat the
    instant motion as a petition for post-conviction relief—“[u]pon motion of the
    convicted person, the court shall vacate the judgment and allow the withdrawal
    [of the plea of guilty] whenever the convicted person proves that withdrawal is
    necessary to correct a manifest injustice.” The statute further provides:
    For purposes of this section, withdrawal of the plea is necessary
    to correct a manifest injustice whenever:
    (1) the convicted person was denied the effective assistance
    of counsel;
    (2) the plea was not entered or ratified by the convicted
    person;
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 6 of 9
    (3) the plea was not knowingly and voluntarily made;
    (4) the prosecuting attorney failed to abide by the terms of
    a plea agreement; or
    (5) the plea and judgment of conviction are void or
    voidable for any other reason.
    I.C. § 35-35-1-4(c). Here, it appears that only subparagraph (5) applies.
    [11]   In Oney, the Indiana Supreme Court affirmed the grant of post-conviction relief
    under subparagraph (5). There, the petitioner had pleaded guilty to operating a
    vehicle while suspended as a habitual traffic violator (“HTV”). Oney, 993
    N.E.2d at 160. The HTV status was based upon, inter alia, a 1989 conviction.
    Id. Later, a post-conviction court vacated that 1989 conviction. Id. at 161. The
    petitioner then sought to set aside his plea of guilty to the HTV offense. Id.
    The court set aside the plea and vacated the HTV conviction. Id. On transfer,
    the Indiana Supreme Court concluded that “[t]he absence of a predicate offense
    justifying an HTV determination provided sufficient basis for the trial court
    here—acting as a post-conviction court—to conclude that the guilty plea and
    judgment of conviction were voidable.” Id. at 166.
    [12]   In this case, the pertinent statutes provided that Carrying a Handgun Without a
    License could be elevated to a Class D felony if the defendant “ha[d] been
    convicted of a felony within fifteen (15) years before the date of the offense.”
    I.C. § 35-47-2-23. The State alleged that there was a qualifying felony offense:
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 7 of 9
    AARON BLANCHE, on or about March 27, 1992, was
    previously convicted of a felony within fifteen (15) years before
    the date of this offense, that is: Theft in Marion County Superior
    Court Number Two (II), Cause Number 49G028912CF142445,
    on June 14, 1990 . . . .
    Appellee’s App. Vol. 2 at 4. Blanche pleaded guilty to the offense as a Class D
    felony. In doing so, Blanche signed a plea agreement containing this provision:
    The defendant further acknowledges that entry of a guilty plea
    pursuant to this agreement constitutes an admission of the truth
    of all facts alleged in the charge or counts to which the defendant
    pleads guilty and that entry of the guilty plea will result in a
    conviction on those charges or counts.
    Id. at 7.
    [13]   Blanche now seeks relief, claiming that “the information was defective, i.e., no
    conviction for theft ever existed . . . and as a matter of law, [he] was not eligible
    for an enhancement.” Appellant’s Br. at 5-6. Yet, Blanche does not dispute his
    felony conviction of Auto Theft in the 1990 cause—and, in contrast with Oney,
    the offense was not vacated through subsequent post-conviction proceedings.
    Ultimately, Blanche appears to complain only of the description of the felony
    identified in the information: that the felony offense was described as Theft but
    should have been described as a more particular type of theft, i.e., Auto Theft.
    [14]   Yet, under the applicable statute, the information need only contain a “plain,
    concise, and definite written statement of the essential facts constituting the
    offense charged” and “need not contain . . . any other matter not necessary to
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 8 of 9
    the statement.” I.C. § 35-34-1-2. Moreover, it is well-settled that courts
    disregard surplusage in charging instruments. See, e.g., Powell v. State, 
    250 Ind. 663
    , 
    237 N.E.2d 95
    , 98 (1968) (acknowledging the “general rule” that what is
    unnecessary to allege is automatically unnecessary to prove). Here, the State
    sought an elevated conviction, and alleged the existence of a predicate felony
    offense. The State identified a particular cause number and there was a felony
    conviction under that cause number. We conclude that the State adequately
    alleged the existence of a predicate offense—and, because it was unnecessary
    for the State to further describe the offense, the complained-of language
    amounts to mere surplusage. See Madison v. State, 
    234 Ind. 517
    , 
    130 N.E.2d 35
    ,
    47 (1955) (“Unnecessary descriptive material in a charge is surplusage.”); see
    also Mitchem v. State, 
    685 N.E.2d 671
    , 676 (Ind. 1997). Ultimately, Blanche has
    failed to identify any defect in the charging information, and has failed to
    demonstrate manifest injustice that would support withdrawal of his plea.
    [15]   Blanche has not demonstrated an unerring, unmistakable entitlement to relief.
    [16]   Affirmed.
    Mathias, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1619 | December 14, 2018   Page 9 of 9
    

Document Info

Docket Number: 18A-CR-1619

Filed Date: 12/14/2018

Precedential Status: Precedential

Modified Date: 12/14/2018