976 N.E.2d 1248
Ind. Ct. App.2012Background
- Dugan was charged in 2005 with SVF firearm possession, reckless conduct, pointing a firearm, and carrying a handgun without a license; the SVF charge rested on his 1994 battery conviction and an habitual offender enhancement based on that battery and an attempted burglary.
- At trial in February 2006, the State dismissed other charges; the jury found SVF possession and Dugan pled guilty to the habitual offender allegation in exchange for the minimum ten-year habitual sentence.
- The trial court sentenced Dugan to 15 years for SVF possession plus 10 years for the habitual offender enhancement.
- On direct appeal, Dugan challenged the court’s denial of bifurcation of the SVF determination; the appellate court affirmed and the Supreme Court denied transfer.
- Dugan filed a post-conviction petition in 2008, amended in 2011, arguing Mills v. State should apply retroactively to invalidate the habitual offender enhancement.
- The post-conviction court denied relief, holding Mills did not apply retroactively and that Dugan’s guilty plea did not entitle him to relief; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mills applies retroactively to invalidate the habitual offender enhancement | Dugan argues Mills retroactively prohibits using the same felony to both establish SVF and support the habitual enhancement. | State contends Mills is not retroactive or that plea and other considerations bar relief. | Retroactive application warranted; Mills applies to vacate the enhancement. |
| Whether the case requires addressing ineffective assistance of appellate counsel given Mills relief | Dugan asserts appellate counsel failed to raise the Mills issue on direct appeal. | State contends no strong basis; waiver and strategic considerations. | Not necessary to decide IAC because Mills relief mandates remand for vacating the enhancement. |
Key Cases Cited
- Mills v. State, 868 N.E.2d 446 (Ind. 2007) (holding that amendments to habitual offender statute do not allow double enhancement via same felony; retroactivity issue presented for post-conviction)
- Jones v. State, 835 N.E.2d 1002 (Ind. 2005) (retroactive application of Ross; guilty plea does not automatically bar collateral relief when substantive law changes)
- Conrad v. State, 747 N.E.2d 575 (Ind. Ct. App. 2001) (early view that same felony cannot be used to establish SVF and habitual enhancement)
- Townsend v. State, 793 N.E.2d 1092 (Ind. Ct. App. 2003) (allowance of same prior felony to create underlying SVF and support habitual enhancement (before Mills))
- Dye v. State, 972 N.E.2d 853 (Ind. 2012) (post-Mills relief on similar issues where defendant challenged habitual enhancement after guilty plea)