Olinger v. State

494 N.E.2d 310

Ind.

1986

Check Treatment

William F. OLINGER, Appellant, v. STATE of Indiana, Appellee.

No. 985S366

Supreme Court of Indiana.

June 26, 1986.

492 N.E.2d 310

ening the use of force on Charles Cheatham.

The jury returned guilty verdicts on the amended informations. The trial court entered judgments of conviction against him. He received two concurrent sentences of twenty years.

We do not believe that the State‘s alleged contravention of I.C. § 35-3.1-1-5(e) rises to the level of fundamental error. The doctrine of “fundamental” or “plain” error requires that a substantial infringement of defendant‘s right to due process be shown. The error must be such that the defendant could not have had a fair trial.

Releford v. State (1975), 163 Ind.App. 534, 325 N.E.2d 214. The statute‘s purpose is to protect a defendant from surprise and from substantial changes in the charges so that his right to notice of the charges is given additional protection.

Here, appellant had been previously tried on the charges before they were amended as though they contained the element of “commission while armed with a deadly weapon.” The subsequent amendment of the charges was perfunctory in that the charges were brought into conformity with the trial court‘s action in the first trial of acquitting appellant of the greater class A robbery charges and instructing the jury at the close of the evidence on the lesser class B charges. Given these circumstances, appellant has not shown a substantial infringement of his right to due process. We cannot conceive of a defendant who had more notice of the charges against him and who had a greater opportunity to meet the State‘s evidence than appellant. The fortuitous event of a mistrial placed appellant in this advantageous position. Fundamental error is not present here, and this same conclusion follows when the amendment is viewed from the perspective of the first appeal and from the perspective of this post-conviction proceeding.

II

Based upon the reasoning employed in resolving the first issue, it is clear that appellant was not denied effective assistance of trial and appellate counsel. Assuming arguendo that trial and appellant counsels’ actions were deficient, such actions did not prejudice his defense or his appeal. See

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674; .

The denial of post-conviction relief is affirmed.

GIVAN, C.J., and PIVARNIK, SHEPARD and DICKSON, JJ., concur.

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

This is an appeal from the overruling of appellant‘s Motion to Set Aside Habitual Offender Enhancement after one of the two underlying offenses supporting the enhancement was vacated in the court of conviction. On May 19, 1982, appellant was found guilty of Burglary, a Class C felony, and found to be an habitual criminal. A sentence of thirty-seven (37) years imprisonment resulted.

In 1983 appellant successfully prosecuted a post-conviction relief petition to set aside a 1969 felony conviction in the White Circuit Court. The White Circuit Court felony conviction was one of the supporting felony convictions used in the habitual offender conviction in the Carroll Circuit Court. Following his success in the White Circuit Court, appellant filed his petition in the Carroll Circuit Court as set out above.

The trial judge in the Carroll Circuit Court denied relief on the theory that appellant never raised any objection to the 1969 White Circuit Court conviction during his original trial in the Carroll Circuit Court. The trial judge observed that appellant took the stand and admitted the conviction and that he had served twenty-one months of the sentence. He points out the White Circuit Court conviction was not void but merely voidable; therefore, since it was in full force and effect at the time of the conviction in the Carroll Circuit Court, the fact that it was subsequently set aside should not be grounds to now set aside the Carroll Circuit Court‘s ruling on the habitual criminal status. He further points out the grounds for setting aside the White Circuit Court conviction were as well-known to the appellant at the time of trial on the habitual offender phase as they were two years later when he subsequently moved to set aside the judgment.

This Court has previously ruled that a collateral attack on previous convictions is not available to a defendant on an habitual criminal charge.

Jones v. State (1981), Ind., 425 N.E.2d 82. This Court has also ruled a defendant could not have a continuance for the purpose of attacking one of the supporting convictions on an habitual offender charge. .

Appellant had every right to file his post-conviction relief petition with the White Circuit Court. His success in that case left the habitual offender finding in the Carroll Circuit Court without one of the necessary supporting prior convictions. Thus the Carroll Circuit Court has no choice but to vacate the thirty (30) year portion of the sentence which was based upon the habitual offender status.

The trial court is reversed and the cause is remanded for correction of the sentence consistent with this opinion.

DeBRULER, PIVARNIK and DICKSON, JJ., concur.

SHEPARD, J., concurs with separate opinion.

SHEPARD, Justice, concurring.

While I concur that a petition for post-conviction relief was the only method by which appellant Olinger could challenge the validity of the felony convictions which were the basis for the later finding that he was an habitual offender, I note the conclusory nature of our finding that his success in that effort leads ineluctably to vacating the habitual offender sentence. This is a question which has been litigated in Indiana in only the most tangential way,

Pennington v. State (1981), Ind., 426 N.E.2d 408, and I can find only one other state in which the matter has been addressed directly. . Whether today‘s result is required by the Code or by the Constitution, or whether it is required at all, has never been directly addressed by this Court.

However, the question is not before us, as the State chose to respond to Olinger‘s petition by arguing that he should have challenged the predicate felonies during the habitual offender proceeding. Accordingly, I join the Court‘s disposition of the case.