Theothus Carter v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 09 2012, 9:00 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HOLLY L. LYONS GREGORY F. ZOELLER
Greenfield, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THEOTHUS CARTER, )
)
Appellant-Defendant, )
)
vs. ) No. 30A05-1203-CR-137
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK CIRCUIT COURT
The Honorable Richard C. Culver, Judge
Cause No. 30C01-1006-FA-133
October 9, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Theothus Carter appeals the sixty-five-year aggregate
sentence that was imposed after the trial court re-sentenced him for Attempted Murder,1 a
class A felony, Attempted Robbery,2 a class A felony, Burglary,3 a class B felony, and
with being a Habitual Offender.4 In Carter’s initial direct appeal to this court, we
determined that double jeopardy principles were violated with regard to a conviction for
class A felony burglary. Thus, we remanded the cause to the trial court with instructions
that it re-sentence him on that offense as a class B felony.
Carter now argues that the trial court abused its discretion in “repositioning” and
attaching the habitual offender count on remand to the attempted robbery conviction and
ultimately imposing the same sixty-five-year aggregate sentence that was originally
imposed. Appellant’s Br. p. 3.5 Concluding that the trial court properly exercised its
discretion in attaching the habitual offender count to a different felony count on remand,
we affirm.
FACTS
The facts as found in Carter’s original appeal are as follows:
1
Ind. Code § 35-42-1-1; Ind. Code § 35-41-5-1.
2
I.C. § 35-42-5-1; I.C. 35-41-5-1.
3
Ind. Code § 35-43-2-1.
4
Ind. Code § 35-50-2-8.
5
We also note that Carter complains that the trial court erred in allowing the State to file the habitual
offender Count in the first instance. Appellant’s Br. p. 4-5. However, Carter raised this issue on direct
appeal and it was decided adversely to him. Carter, 956 N.E.2d at 172-73. Thus, this claim is barred on
the basis of res judicata and is the law of the case. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. Ct. App.
2006).
2
In May of 2010, Carter and three other people broke into a home in
Hancock County in order to take money they believed was there. Carter
threatened to kill one resident and he shot the other. The State charged
Carter with attempted murder and attempted robbery as Class A felonies
and with burglary as a Class B felony. It subsequently amended the
burglary charge to a Class A felony and charged Carter with being an
habitual offender. A jury found him guilty of all three counts and the court
found he was an habitual offender.
Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans. denied. The State had
attached the habitual offender count to the class A felony burglary charge for
enhancement purposes, and the trial court ultimately sentenced Carter to an aggregate
term of sixty-five years of incarceration. More particularly, the sentencing order
provided that
On Count I, Attempted Murder, 40 years to the Indiana Department of
Corrections; count II, Attempted robbery, 40 years to the Indiana
Department of Corrections and Count III, Burglary, 40 years to the Indiana
Department of Corrections. The sentence for Burglary, a class A felony is
enhanced by an additional 25 years for a total sentence on Count III of 65
years. The sentences for counts I, II and III are ordered to run concurrent
for a total sentence to the Indiana Department of Corrections of 65 years.
Appellant’s App. p. 29.
Carter appealed, alleging, among other things, that the convictions for both class A
felony attempted robbery and class A felony burglary violated double jeopardy
principles. Id. We agreed with Carter’s double jeopardy argument, vacated the class A
burglary conviction, and directed the trial court on remand to reduce the burglary charge
to a class B felony and re-sentence Carter accordingly.
3
At the sentencing hearing on remand, the trial court repositioned the habitual
offender count to enhance the class A felony attempted robbery conviction that was
alleged in Count II. Thus, the end result was the same, in that Carter was sentenced to an
aggregate term of sixty-five years of incarceration. The sentence called for Carter to
serve forty years on each of the attempted murder and attempted robbery convictions, and
twenty years on the class B burglary conviction, all to run concurrently. The trial court
left the habitual offender enhancement, now attached to the attempted robbery
conviction, at twenty-five years.
Carter now appeals.
DISCUSSION AND DECISION
In addressing Carter’s contention that the trial court abused its discretion in
attaching the habitual offender count to a different felony on remand, we note that the
habitual offender finding does not constitute a separate crime nor does it result in a
separate sentence. Greer v. Sate, 680 N.E.2d 526, 527 (Ind. 1997). Rather it results in a
sentence enhancement imposed on the conviction of a subsequent felony. Id.When a defendant simultaneously receives multiple felony convictions and a
habitual offender finding, a trial court must impose the resulting penalty enhancement
upon only one of the convictions and must specify the conviction to be so enhanced. Id.A habitual offender finding is merely a jury’s determination, however, that a defendant
has accumulated two unrelated felony convictions prior to the current convictions. Id.Therefore, even in the case of a habitual offender proceeding following multiple
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convictions, the jury’s finding of the habitual offender status is not linked to any
particular conviction. Id. Indeed, we have specifically determined that “the particular
felony conviction to which the habitual offender enhancement is attached is not relevant.”
Wilson v. State, 688 N.E.2d 1293, 1295 (Ind. Ct. App. 1997).
In light of the above, we find that when the trial court was ordered to re-sentence
Carter to class B felony burglary on remand because his conviction for class A felony
burglary violated double jeopardy principles, it was appropriate for the trial court to
reassess the attachment of the habitual offender enhancement. In other words, we cannot
say that Carter’s habitual offender status was irrevocably coupled with the burglary
conviction. Stated differently, the mere fact that the burglary conviction was re-entered
as a class B felony should not preclude the trial court from doing what it could do given
any other change to the status of the underlying conviction. Because the underlying
conviction had been modified on Carter’s direct appeal, the trial court then re-evaluated
both the appropriate sentence for the underlying convictions and the appropriateness of
attaching the habitual offender enhancement to that sentence.
In fact, Carter conceded that the trial court had the discretion to reposition the
habitual offender determination to another felony conviction. Tr. p. 7. And the trial
court exercised proper discretion in doing so. Tipton v. State, 765 N.E.2d 187, 189-90
(Ind. Ct. App. 2002). As a result, the trial court’s repositioning of the habitual
enhancement to Carter’s class A felony attempted robbery conviction was not an abuse of
discretion, and we decline to set the sentence aside.
5
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
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