Thomas v. State , 1995 Ind. App. LEXIS 776 ( 1995 )

OPINION

GARRARD, Judge.

Pursuant to a plea agreement under which he secured the dismissal of other unrelated charges, Charles Thomas pled guilty to escape, a Class C felony, and to being an habitual offender. He was sentenced accordingly.

He now appeals from denial of his petition for postconviction relief asserting that the state failed to establish a sufficient factual basis for the habitual offender determination. Specifically, he refers to the statutory chronological sequence. Seq, eg., Smith v. State (1987) Ind., 514 N.E.2d 1254. In neither the trial court nor on appeal has he offered any evidence that in fact the offenses were not committed in the proper sequence.

In Weatherford v. State (1998) Ind., 619 N.E.2d 915, 917-918, reh denied our supreme court determined that when a convicted person seeks post-conviction relief concerning an habitual offender determination,

... he may not prevail simply by putting the State to its proof as though the case were being tried or appealed in the first instance. Instead, [he] must demonstrate that he was not an habitual offender under the laws of the state.

Citing an earlier Court of Appeals decision, Roe v. State (1992) Ind.App., 598 N.E.2d 586, Thomas argues that Weatherford should not apply to cases involving a guilty plea. We believe that Weatherford overruled Roe and that it controls the present appeal.

At the guilty plea hearing Thomas was read both the information (which alleged the dates of conviction but not the dates of commission of the prior offenses) and the statute defining when one is an habitual offender. He stated that he understood and admitted the commission of the prior offenses alleged. We have consistently held that when an accused states that he understands the nature of the charge and understands that by entering a plea of guilty he is admitting the truth of the matters charged, the factual basis is sufficient. Lombardo v. State (1981) Ind., 429 N.E.2d 243. While there must be a factual basis for the plea, the state is relieved of its burden of proof when a defendant pleads guilty. Frazier v. State (1986) Ind., 490 N.E.2d 315.

Thomas has made no suggestion that the requisite prior felonies were not committed or were not committed in the appropriate statutory sequence. Under Weatherford it was his burden to do so if he wished to challenge the habitual offender determination by petition for post-conviction relief. It follows that no error has been established.

Affirmed.

SHARPNACK, J., concurs. STATON, J., concurs in result and files separate opinion.