*1 upon plea may guilty vietion based not be
challenged by motion to correct errors and appeal.”
direct Id. consequence pleading
We noted that one ability
guilty the restriction to chal-
lenge appeal. direct the conviction on Id.
Additionally, right expanding appeal pleas
guilty appeal on direct would make difficult, dramatically
settlements and would appellate
increase the caseload courts.
Tumulty, 666 396. N.E.2d at
This Court has created avenue for addressing validity guilty pleas
claims
by adopting Indiana Posi>-ConvictionRule fact, just recently we have held exactly
“[P]ost-eonviction relief is the vehicle pursuing validity guilty claims for
pleas.” Tumulty,
(citing
Butler
Therefore, the issue of defendant’s plea voluntarily
not be decided court on direct appeal, pursued by instead filing
but should be
petition post-conviction relief.
Conclusion re-sentencing pursuant
We remand for
P.L. 158-1994.
SHEPARD, C.J., DICKSON, SELBY, BOEHM, JJ., concur. HOBSON, Appellant
(Defendant Below), Indiana, Appellees
STATE of
(Plaintiffs Below).
No. 64S00-9403-CR-225.
Supreme Court Indiana.
Dec. *2 Carter, Attorney
Pamela General Indiana, Lupton, At Deputy Suzann Weber General, torney Attorney of the Office Gen Indianapolis, appellees. for eral> SELBY, Justice. (“Appellant”) brings this di- Murder; appeal from convictions
rect for felony; Rape, a Class A Criminal Confine- ment, felony; B and a Class Criminal Devi- Conduct, a B ate Class He received following sixty years sentences: for Mur- der, fifty years twenty years Rape, for for Confinement, fifty years for Criminal The Deviate Conduct. trial court Criminal these sentences to be served consec- ordered years. Appellant utively, for a total of 180 (1) the issues of whether the trial court raises applied properly shield statute using victim exclude evidence (2) contraceptives; trial oral whether by accepting general court committed error sentencing Appellant form for verdict the felonies instructed on both or intention- murder; al murder and whether presented prosecutor knowingly false evi- dence, thereby entitling to a mis- trial; prosecutorial miscon- We duct amounted to fundamental error. conviction; the murder we otherwise reverse judgment affirm the of the court.
FACTS sixteen-year-old Mel- On October trailer to Draus went to her cousin’s issa Orlando, cousin, party. Trina attend Her trailer invited a number of friends to the evening drinking. Among those seventeen-year-old Appel- attending were the cousin, sixteen-year-old and his lant in- party-goers, of the Hobson. number cluding Appellant, had taken LSD earlier midnight, evening. time around Some group to leave trailer decided Trina convinced Melissa visit a local bar. stay babysit Trina’s children. behind and stayed behind also. a.m., Timothy Em- 1:30 Around Officer responded to a call and a officer mons fellow park. trailer Martin, a resident of the E. Law V. Offices of James John hearing male out- reported voices Tsoutsouris, caller had Valparaiso, appellant. window, said, which had “Kill went her one of claimed that he then outside to cool side down, trailer, bitch.” The officers but the victim came out of the shortly nude, park, no one in the but there- trailer still knife at him. He threw stopped Appellant and his cousin as picked up after claims to knife and walking nearby highway. away. were down lunged at her her to scare *3 appeared Police noticed that to have admitted that the victim he stabbed clothing. Appellant stains on their blood knife. paint, indicated were red that the stains jail, Appellant’s While in a third version of and then later claimed have been story emerged. Appellant detailed to cell- officers, fight. talking While to one mate how he James Patton killed the victim Appellant pulled shirt to up his reveal a bite by Later, stabbing her from behind. mark on his back and said that he had told Appellant learned that Patton intended (R. get put “the bitch to out.” out police, story Appellant share this with wrote 1799.) referring letter to friend to Patton as The two into detention were taken because problem that he wished to have care “taken their intoxication violation of curfew. 1919.) of.” Appellant, concerned about the reason that trial, yet Appellant At told another version in, being repeatedly he taken confirmed Appellant .of events. claimed that he en- public that he was with gaged in consensual sex the victim. He During intoxication. his conversation with drink, left to fix a and returned to find her station, police Appellant at the showed offi- hallway engaging Ryan. fellatio with cers the bite mark on his back and com- Moments later to have he claims heard his mented that bit “that bitch me.” victim, hitting cousin and when he at- 1746.) morning, Later that a friend of the intervene, tempted to the victim bit him. boys, sister, posing Appellant’s two as the testified that kicked the vic- posted to the detention came center bail. tim out of the trader stabbed her to morning, On that same one of Trina’s death. ini- told he guests body Her Melissa. nude tially agreed responsibility to take for the yard outside trailer. She crime because he believed he could use repeatedly
had beaten and stabbed. support the bite mark to a claim of self- stab wound One entered back of her defense. front, shoulder and exited another severing crossed the front of neck her her DISCUSSION jugular testing vein and Forensic trachea. clothing. found semen stains on the victim’s I. Serological testing proved and DNA that the trial, during Before and the trial with that Appel- semen consistent Statute, applied Rape court Indiana’s Shield Appellant’s lant’s. Blood stains on clothes 35-37-L4, deny § Appellant’s request I.C. consistent
were with the victim’s blood. to introduce evidence that the deceased vic using contraceptives. were arrested a tim was few oral arrest, argues later. improperly hours Prior to their applied the trial court inculpatory Rape made numerous statements and Shield Statute thus erroneous ly contraception admissions to friends several about how he excluded the Ap evidence. raped pellant victim and stabbed the because first claims that because the victim arrest, trial, had bitten prior public policy she him. After was dead story changed. Appellant police underlying lant’s told by the statute not served the victim him excluding contraception seduced and that her pre evidence of scription. had consensual purpose sex. He claimed that after room, angry Rape left the he she became that he Shield is to Statute pleased prevent had not her followed him down the victim’s embarrassment at trial the hall and encourage bit him. He said that he re- and to assault sexual victims to by report sponded striking repeatedly. Appel- police, her assaults to the and because peace dignity time of by dead Melissa Draus was longer an Indiana. no possible humiliation was her Appellant further claims issue. (R. at designed prevent Rape Statute is Shield however, jury, received an in- activity from sexual prior evidence of than struction on which was broader argues, trial. admission theory knowingly-or-intentionally apply here Rape Statute should Shield in the information: contained contraceptives future facilitate because oral No. Instruction 3.01—Murder. activity. Finally, Appellant claims sexual I.C. 35-42-1-1. contraception was material that this evidence assumption in that it rebuts the of murder is defined statute Draus was age, person of the victim’s Melissa who as follows: *4 sexually intentionally being active. human kills another committing attempting to commit
while or claim, first a vic Appellant’s arson, As to burglary, molesting, criminal child abrogate public poli conduct, tim’s death does not kidnapping, rape, or deviate rob- Statute, by Rape cy murder, Shield advanced bery a commits alia, report to encouraging victims inter defendant, must To a convict State, 789, 795 rape. v. 627 N.E.2d Jenkins following prove each of the elements: 812, 115 (1) knowingly The defendant or intention- (1994). 64, 21 130 L.Ed.2d As to (2) (3) ally killed Melissa Draus claims, they other constitute a none-too-thin or ly an of to create inference veiled (2) killed Melissa Draus The defendant contraceptive of use promiscuity. Evidence committing attempting or com- while reasonably expected to an cannot create rape. mit criminal conduct or deviate engage in sexual inference of intent (R. 468.) only in The trial court activity the future. Rape
properly applied the Shield Statute Finally, gave jury court verdict of this to exclude evidence Melissa case “We, Jury, read: find the form which contraception prescription. Draus’ Murder, Defendant, Hobson, guilty Brett 433.) I.”
Count II. Although Appellant was not challenges murder, felony trial court instructed general giving jury of a Murder verdict on court’s that it could return verdict jury charge form to the when the court instructed under murder of murder either knowing theory. or mur jury felony-murder on both intentional The court then or a felony general der and murder. The information murder verdict gave to the charging argues murder read: form. murder has crime of or intentional Reynolds, penal- under David swears felony than the crime elements different by perjury specified ties as I.C. 35-44- murder, it is unclear of which and because following representation
2-1 guilty, his jury found him convic- crime the did, R. or That on true: tion is defective. October, 1992, day in the the 11th Porter, Indiana, initially did not know- We note County of State of object to instruction thus intentionally kill another human ingly or State, cannot now claim error.1 Smith to death Melissa being, to wit: stabbed (Ind.1984). Nevertheless, 355, Draus, contrary to the of the statute N.E.2d form blatant violations the record reveals provided ease made and “when such contrary assertion reply The record is in his brief that in Port- and, parties indeed, objections Superior have little or no er Court the did raise defense counsel object reading prior to of the chance instructions some instructions. 2-3). jury. (Reply Brief at which, elementary principles, felony-murder theory, basic though or a potential rank, harm or for the harm cannot be equal different are crimes. As dif- denied, will issue which review an crimes, they required ferent that different properly preserved.” (citing raised and Id. proved. possible elements be It is (Ind. Webb v. 437 N.E.2d concluded that 1982)). murder, proved felony while the court sen- tenced intentional murder imposition both of sentences for along underlying felonies. felony felony underlying murder and the con lant cannot be sentenced for a crime that was jeopardy. stitutes double Mitchell v. proved the State. 270 Ind. 382 N.E.2d jeopardy of a Violations defendant’s double problem The second flows rights constitute fundamental error. We that we are to know unable whether one or (Ind.Ct. thington merged the felonies should have been App.1995). general felony charge. into Under the way verdict form leaves if us no determine facts, possible for the to conclude Appellant has been convicted of intentional committed the felonies of felony and thus we cannot know if and criminal deviate conduct and that he Appellant has separately been sentenced intentionally murdered the vic- felony both the *5 alternatively tim. The could have found charge. that killed the victim while com- We now address whether the conviction mitting attempting rape or to commit and/or previously defective. We have ruled conduct, criminal Ap- deviate and therefore felony-murder that and murder “contain ele pellant felony of murder under one equal ments different from the other but are above, both those felonies. As stated rank,” in Schiro 533 N.E.2d possible thing is also that the found one the while court found another. (1989), L.Ed.2d 218 and cannot know whether was sen- crime, that to convict defendant of a the felony for tenced both murder the and under- prove, beyond State must a reasonable Also, possible felonies. the two convic- doubt, every and each element of a crime. (180 carry very (Ind.1992). tions different sentences Taylor v. years rape, confinement, for criminal We prosecutor have also held that when a and criminal deviate conduct obtains convictions convictions defendant for for felony murder verses low of 80 murder and underlying felo criminal convictions). ny, may By the defendant confinement sentencing be sentenced for greater charge. consecutively the on both the murder conviction Zenthofer prevent N.E.2d To potential a dou and on the underlying two felonies violation, jeopardy may ble a defendant not specifying theory without which murder Mitchell, be sentenced both. used, the court committed error. Because at 933. The by merging violation is avoided we cannot know if the should felonies (the the felony) lesser-included into offense merged should not have been into the mur- murder). greater (felony the Zenthofer, 613 conviction, possibility der is a Ap- there that N.E.2d If a person at 35. kills while another pellant’s jeopardy rights double were violat- committing commit, or attempting to inter presence ed. We hasten to note that the alia, conduct, or criminal deviate and/ convictions, the two either one of § be convicted of murder. 35- I.C. felony murder, predicate which could be a 42-1-1. causes us to to this come conclusion. Our are, decision to new therefore, order a trial on the
There two intertwined might problems charge well if with the be different there had conviction murder First, predicate general case. been one verdict leaves Neverthe- way less, us with no to particular ascertain whether based on this set of facts and lant circumstances, was convicted on an intentional we must vacate the murder nothing support Appellant’s record a new trial on this and remand for conviction prosecutor knowingly assertion that count.2 surely placed a on the who witness stand lying. prosecutor instant III. degree could-not known absolute prose that certainty Ryan not speaking violated Indiana Professional Conduct cutor honestly openly and about the facts which 3.8(a)(4), that trial court erred Rule Moreover, prosecutor he testified. did denying a mistrial based his motion for misconception alleged such misconduct. Professional upon fully Ryan’s that the State believed version 3.3(a)(4) states an attor Conduct Rule opening closing In both events. ney “shall offer evidence that statements, pointed out lawyer knows to false.” Ryan charged had also suggests prosecutor knowingly spon that the Ryan’s questioned veracity of state- testimony by putting Appellant’s false sored degree culpability ments on his Ryan Appellant argues on the stand. cousin 1069, 2855), during testimony, his prosecutor Ryan of had knew Ryan impeached on inconsistent conflicting testimony prior to fered 2935). statements, contradictory prosecutor him Furthermore, provide it makes no sense to Thus, Appel Appellant. crimes as the same an incentive for a lone witness tell conflict- claims, although prosecutor believed ing thus himself stories and make unavailable crimes, these she elect committed prosecutor as a The trial witness. against Appel to use as a witness ed denying Appellant’s mo- court did not err prosecutor’s lant. asserts that tion for a new trial on this issue. based Ryan’s testimony decision use violates Conduct, that be Rules Professional *6 testimony placed Appellant this cause IV. is to a trial. grave danger, he entitled new argument, Appellant As final con State, 1074, N.E.2d 1079 Poling v. 515 that miscon prosecutorial tends there 1008, 109 duct and that such misconduct amounted (1989), 1646, 104 reject L.Ed.2d 161 we alleges two Appellant error. fundamental argument. In that ed similar specific prosecutorial miscon instances prosecu [the noted that the mere “fact that personal opin prosecutor gave duct: the in suspicions tion] [a witness’] some witnesses; ions as the truthfulness credibility give would not rise volvement and prosecutor Appellant person the asked prosecution was] [that to the conclusion the ally credibility other assess the witnesses. fostering purposely perjured allegation, Appellant the claims As to testimony.” Although Id. at 1079. by stating prosecutor erred that veracity questiona to be witness’ arguments: you “I jury closing warned ble, necessary it that the State found to call are that Brett Hobson and
witness,
living
since he was the
other
that
Appellant
liars.”
at
contends
present when
crimes
person who was
3.4(e)
this
Professional Conduct Rule
violates
were committed.
personal opinion unsupported
is a
opinion
as to
Similarly,
personal
Ryan is the
other known
the evidence
Furthermore,
credibility
person
present
of witness.
living
who was
may
Appellant argues
that because
statement
this case were committed.
It
crimes
highly prej
prosecutor,
from the
it was
that
stories at vari-
came
be
told inconsistent
However,
Appellant.
there is
udicial to
prior
times
to trial.
ous
State,
206,
(Ind.
Yarbrough
may
497
209
Appellant
v.
N.E.2d
2. We also note that
542,
State,
1986);
of a crime that was not
Ind.
N.E.2d
convicted
v.
255
265
Sanford
State,
(Ind.1971);
not be found
him. A defendant
Ind.
Goldstine v.
him,
charged against
guilty of a
that is
(Ind.1952).
convicted,
contrary
to law.
and if so
verdict is
matter,
two,
preliminary
we note
A.
As a
that
For
Renee Rose would lie about
object
anything.
did
to these comments
now, therefore,
trial,
at
barred
and is
from
Q. Okay,
they
lying
so
are both
raising the
unless he can
issue
demonstrate
that
is
correct?
that these comments constitute fundamental
A.
are.
Yes
(Ind.
error.
Brewer
A. I didn’t about II in respect which he would affirm the Q. So if Renee Rose and Hosch Jeremiah murder conviction and vacate you said were bragging beating criminal deviate conduct convictions. stabbing her and her and— one, A. For me and Jeremiah Hosch nev- along. got
er
Q. you thing So [sic] Jeremiah Hosch is
lying about that?