Jeffrey K. Mitchell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 21 2016, 8:33 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard Walker Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey K. Mitchell, September 21, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1512-CR-2370
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1410-F3-1878
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jeffrey K. Mitchell (Mitchell), appeals his conviction for
criminal confinement resulting in serious bodily injury, a Level 3 felony, Ind.
Code § 35-42-3-3(a), and his adjudication as a habitual offender, I.C. § 35-50-2-
8(a).
[2] We affirm.
ISSUE
[3] Mitchell raises one issue on appeal, which we restate as follows: Whether the
State presented sufficient evidence beyond a reasonable doubt to sustain
Mitchell’s habitual offender adjudication.
FACTS AND PROCEDURAL HISTORY
[4] On October 21, 2014, the State filed an Information, charging Mitchell with
Count I, battery resulting in serious bodily injury, a Level 5 felony; Count II,
criminal confinement, a Level 3 felony, and Count III, invasion of privacy, a
Class A misdemeanor. On November 16, 2015, the State amended the
Information by adding Count IV, a habitual offender enhancement. The
habitual offender allegation included three prior unrelated felonies: a Class C
felony battery under Cause No. 48D03-8811-CF-139, a Class C felony escape
under Cause No. 48D03-9004-CF-59 (Cause 59), and a Class D felony criminal
confinement under Cause No. 48D03-0109-DF-307 (Cause 307). With respect
to the escape conviction in Cause 59, the State alleged that the offense occurred
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on April 27, 1990, with a subsequent conviction and sentencing on April 7,
1997.
[5] On December 3, 2015, the State filed a second amendment to the Information
by amending the habitual offender Information. The amended habitual
offender Information included only two of the previous three predicate offenses:
the escape conviction in Cause 59 and the criminal confinement conviction
under Cause 307.
[6] On December 1 through December 3, 2015, the trial court conducted a
bifurcated jury trial. During Phase I of the jury trial, the jury found Mitchell
guilty as charged on Counts I-III. In Phase II, the State introduced into
evidence Exhibits supporting the predicate offenses of the amended habitual
offender Information. Specifically, the State offered certified copies of the
charging Information and sentencing order for the escape conviction under
Cause 59, as well as fingerprints. The sentencing date for the escape conviction
was listed as April 7, 1997. With respect to the criminal confinement
conviction under Cause 307, the State introduced the charging Information, the
amended charging Information, the sentencing order, the Chronological Case
Summary, and two mugshots, as well as fingerprints. Mitchell offered no
evidence in Phase II and did not give a closing statement. At the close of the
evidence in Phase II, the jury found Mitchell guilty of being a habitual offender.
[7] On December 17, 2015, the trial court sentenced Mitchell to concurrent terms
of sixteen years’ incarceration for Count I and one year for Count III, as well as
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a separate twenty year consecutive sentence for the habitual offender
adjudication. On July 3, 2016, the trial court amended its sentencing order and
merged Count I into Count II. The trial court sentenced Mitchell to sixteen
years’ incarceration on Count II, enhanced by twenty years due to the habitual
offender adjudication, and a concurrent one-year sentence on Count III.
[8] Mitchell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Mitchell contends that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain Mitchell’s habitual offender adjudication based on
the escape conviction under Cause 59 because this conviction had been vacated
on appeal.
[10] The standard of review for the sufficiency of a habitual offender enhancement is
the same as for any other sufficiency claim. Woods v. State, 939 N.E.2d 676, 677
(Ind. Ct. App. 2010), trans. denied. Accordingly, a person is a habitual offender
if the State proves beyond a reasonable doubt that he has two prior, unrelated
felony convictions. I.C. § 35-50-2-8. To support a habitual offender finding, (1)
the prior unrelated felony must be committed after sentencing for the first prior
unrelated felony conviction; and (2) the offense for which the State seeks to
have the person sentenced as a habitual offender must be committed after
sentencing for the second prior unrelated felony conviction. I.C. § 35-50-2-8(f).
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[11] We agree with Mitchell that his escape conviction in Cause 59 was reversed by
this court in 1999 because we vacated his plea agreement for the escape charge;
however, we also instructed the State to “retry Mitchell on the . . . escape
[Count].” (Appellant’s App. p. 308). Accordingly, on October 21, 1999, the
State recharged Mitchell with the escape offense, to which he pled guilty on
November 27, 2000. That same day, the trial court sentenced him to eight
years’ imprisonment, enhanced by twelve years based on a habitual offender
adjudication.
[12] Although the sentencing date with respect to Mitchell’s prior escape conviction
is incorrect in the State’s habitual offender charging Information, as amended,
Mitchell did not object. Therefore, as Mitchell failed to preserve this error for
our review, it is now waived. See, e.g., Jackson v. State, 712 N.E.2d 986, 988
(Ind. 1999) (the defendant is limited on appeal to the grounds advanced at the
trial court and cannot raise new grounds for the first time on appeal). We
conclude that the State’s evidence in Phase II of the bifurcated jury trial was
sufficient to establish Mitchell’s habitual offender adjudication.
CONCLUSION
[13] Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to sustain Mitchell’s habitual offender adjudication
[14] Affirmed.
[15] Bailey, J. and Barnes, J. concur
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