Shaun L. Steele v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 15 2016, 8:16 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter D. Todd Gregory F. Zoeller
Elkhart, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shaun L. Steele, September 15, 2016
Appellant-Defendant, Court of Appeals Cause No.
20A03-1604-CR-889
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Stephen Bowers,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D02-1007-FC-60
Barnes, Judge.
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Case Summary
[1] Shaun Steele appeals the enhancement of his sentence pursuant to his status as
an habitual offender. We affirm.
Issue
[2] Steele raises one issue, which we restate as whether the trial court properly
enhanced his sentence based on his status as an habitual offender after his
conviction was enhanced from a Class D felony to a Class C felony pursuant to
a progressive sentencing statute.
Facts
[3] The facts as stated in the appeal of Steele’s petition for post-conviction relief
follow:
[O]n July 6, 2010, Steele drove a truck that he knew was stolen.
An officer attempted to stop the vehicle, and Steele leaped from
the vehicle and ran around a building. He then jumped back into
the truck and drove away. As a result of these events, Steele was
charged with resisting law enforcement as a class D felony,
operating a vehicle while intoxicated (OWI), a class A
misdemeanor, and receiving stolen property as a class C felony,
which was enhanced under Ind. Code Ann. § 35-43-4-2.5 (West,
Westlaw current with all 2012 legislation) from a class D felony
by virtue of a previous conviction of auto theft. He was also
alleged to be a habitual offender.
Steele eventually entered a plea of guilty to all of the charges and
admitting to being a habitual offender. Sentencing was left to the
trial court’s discretion. As part of his guilty plea to the charge of
receiving stolen property as a class C felony, Steele admitted he
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had an unrelated prior conviction of auto theft on May 20, 2009,
under cause number 20D05-0804-FD-119 (FD-119). He also
admitted he was previously convicted of the felonies of robbery
(in 1998) under cause number 20D01-9807-CF-152 (CF-152) and
escape (in 2002) under cause number 37C01-0205-FA-241 (FD-
241).
The court sentenced Steele to eight years for the receiving stolen
property conviction and enhanced that sentence by an additional
eight years by virtue of his status as a habitual offender. Those
sentences were to be served consecutively with the concurrent
sentences of two years for resisting law enforcement and one year
for operating a vehicle while intoxicated. On April 6, 2011,
Steele filed a PCR petition alleging, among other things, that trial
counsel was ineffective for not challenging an improper double
enhancement. The trial court granted his petition on October 13,
2011 on the aforementioned double-jeopardy grounds.
State v. Steele, No. 20A03-1111-PC-502, slip op. at 2-4 (Ind. Ct. App. Oct. 18,
2012) (footnotes omitted).
[4] The State appealed the post-conviction court’s grant of Steele’s petition for post-
conviction relief. The State contended the post-conviction court erred by
“concluding that Steele received ineffective assistance of counsel in that counsel
failed to challenge the habitual-offender enhancement of Steele’s conviction for
receiving stolen property, which itself was already enhanced from a class D to a
class C felony under a progressive penalty statute, thus constituting an
impermissible double enhancement.” Id. at 5. We agreed with the State and
reversed the post-conviction court’s decision as follows:
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The essence of Steele’s claim in this respect was that counsel
should have objected to the sentence on grounds that it violated
the rule against double enhancements. The specific claim was
that a trial court may not add a general habitual offender
enhancement to a sentence that already has been enhanced under
a progressive enhancement statute such as the one under which
Steele was convicted, i.e., I.C. § 35-43-4-2.5. Although this is not
a scenario in which counsel is required, or even expected, to
lodge an objection, see Reed v. State, 856 N.E.2d 1189, 1194 (Ind.
2006) (“[c]ounsel need not object to preserve a sentencing error
for review”), we will proceed on the assumption that the deficient
performance consisted of not pointing out to the court when the
sentence was pronounced that it violated the prohibition against
double enhancements, or something to that effect. In such case,
Steele was required to show that counsel’s claim of error would
have been correct. See West v. State, 938 N.E.2d 305, 310 (Ind.
Ct. App. 2010), trans. denied (“[w]hen an ineffective assistance of
counsel claim is based on the failure to make an objection, the
petitioner must show that a proper objection would have been
sustained by the trial court”). Steele cannot meet this
requirement.
Steele was sentenced on October 14, 2010. This was
approximately two weeks after this court handed down Davis v.
State, 935 N.E.2d 1215 (Ind. Ct. App. 2010), trans. denied. In
Davis, the defendant was convicted of auto theft, which was
enhanced from a class D to a class C felony because of a previous
auto-theft conviction. He was also determined to be a habitual
offender, by virtue of which the trial court enhanced his auto
theft conviction. It was uncontroverted that the prior auto-theft
felony that served to enhance his auto-theft conviction was not
used as a predicate offense for the habitual offender
determination. The defendant complained upon appeal that this
constituted an impermissible double enhancement. The situation
in Davis was virtually the same as that in the present case and
thus the holding in that case is equally applicable here:
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Davis contends that the trial court erred in using the
2001 auto theft conviction (FC-165) to enhance both
the conviction for auto theft and his habitual offender
sentence. A court may not use the same prior
conviction to enhance a felony under both the
progressive penalty and general habitual offender
statutes. Beldon v. State, 926 N.E.2d 480, 482-84 (Ind.
2010). Here, however, the trial court enhanced the
auto theft conviction from a D to C felony by using
the prior auto theft conviction (FC-165), while it used
the stipulated offenses of a resisting law enforcement
conviction (FC-165) and a 2001 auto theft conviction
(DF-142) to enhance under the general habitual
offender statute. The trial court did not violate the
prohibition of Beldon as it did not use the same
conviction to enhance under both the progressive
enhancement and habitual offender statutes.
Davis v. State, 935 N.E.2d at 1218.
This was the law at the time Steele’s sentence was imposed and
Steele’s sentence was perfectly consistent with it. Obviously,
Steele’s counsel did not render deficient performance in failing to
register an objection to a sentence that was lawful at the time.
See Sweeney v. State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008) (“[f]or
purposes of ineffective assistance of counsel claims, the law
requires consideration of legal precedent available to counsel at
the time of his representation of the accused, and counsel will not
be deemed ineffective for not anticipating or initiating changes in
the law”), trans. denied, cert. denied, 555 U.S. 1003. Therefore, the
State’s challenge to this ruling has merit. Steele did not receive
ineffective assistance of counsel with respect to the issue of
double enhancement and the trial court committed clear error in
granting Steele’s petition on this issue.
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Id. at 7-9.
[5] On remand, the trial court resentenced Steele to eight years on the Class C
felony enhanced by eight years for the habitual offender status with four years
suspended to probation. That sentence was to be served consecutively with the
concurrent sentences of two years for resisting law enforcement and one year
for operating a vehicle while intoxicated, for an aggregate sentence of eighteen
years with four years suspended. In 2016, the trial court granted Steele
permission to file a belated appeal.
Analysis
[6] On appeal, Steele argues that the trial court erred by applying the habitual
offender enhancement because the underlying Class C felony “had already been
enhanced pursuant to a progressive sentencing statute.” Appellant’s Br. p. 1.
The State argues that this issue was previously decided in Steele’s post-
conviction proceeding, and the doctrine of res judicata precludes review of the
argument.
[7] The doctrine of res judicata bars a later suit when an earlier suit resulted in a
final judgment on the merits, was based on proper jurisdiction, and involved the
same cause of action and the same parties as the later suit. Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006). The doctrine of res judicata prevents the
repetitious litigation of that which is essentially the same dispute. Id. As a
general rule, when a reviewing court decides an issue on direct appeal, the
doctrine of res judicata applies, thereby precluding its review in post-conviction
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proceedings. Id. A petitioner for post-conviction relief cannot escape the effect
of claim preclusion merely by using different language to phrase an issue and
define an alleged error. Id. “‘[W]here an issue, although differently designated,
was previously considered and determined upon a criminal defendant’s direct
appeal, the State may defend against defendant’s post-conviction relief petition
on grounds of prior adjudication or res judicata.’” Id. (quoting Cambridge v.
State, 468 N.E.2d 1047, 1049 (Ind. 1984)).
[8] Just as a post-conviction petitioner cannot raise an issue that was previously
decided on direct appeal, in this circumstance, Steele cannot raise an issue on
direct appeal that was previously decided in his post-conviction proceeding. In
his post-conviction proceeding, we rejected Steele’s argument that he was
subjected to an impermissible double enhancement, and he makes the same
argument here. His argument is barred by res judicata.
[9] Steele erroneously contends that his argument is different than that presented in
the post-conviction proceeding. In support of this argument he relies upon
Downey v. State, 770 N.E.2d 794 (Ind. 2002), and Dye v. State, 972 N.E.2d 853
(Ind. 2012). Steele argues that if he had been “sentenced after the Dye decision,
no question exists that the trial court would have been prohibited from
enhancing the conviction that was enhanced.” Appellant’s Br. p. 3. In Dye, our
supreme court held that a defendant’s conviction for Class B felony unlawful
possession of a firearm by a serious violent felon and enhancement for his status
as an habitual offender constituted an impermissible double enhancement. Dye,
972 N.E.2d at 858. However, Steele fails to mention that, on rehearing, our
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supreme court clarified its holding in Dye. See Dye v. State, 984 N.E.2d 625
(2013). The court reaffirmed that “a person convicted of unlawful possession of
a firearm by a serious violent felon may not have his or her sentence enhanced
under the general habitual offender statute by proof of the same felony used to
establish that the person was a ‘serious violent felon.’” Id. at 628. The State
was not permitted “to support Dye’s habitual offender finding with a conviction
that arose out of the same res gestae that was the source of the conviction used
to prove Dye was a serious violent felon.” Id. at 630.
[10] Even under Dye, as clarified, Steele is not entitled to relief. Steele makes no
argument that his auto theft conviction was enhanced by proof of the same
felony used to establish is status as an habitual offender. Steele also makes no
argument that his habitual offender status arose out of the same res gestae that
was the source of the conviction used to enhance his auto theft conviction. In
fact, the charging informations reveal that his auto theft conviction was
enhanced due to a 2009 auto theft conviction and his habitual offender status
was based on a 1998 robbery conviction and a 2002 escape conviction. Steele’s
argument fails.
Conclusion
[11] Steele’s argument is barred by res judicata and, even if it was not barred,
Steele’s status as an habitual offender does not violate our supreme court’s
opinion in Dye. We affirm.
[12] Affirmed.
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Riley, J., and Bailey, J., concur.
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