Eldridge v. State

498 N.E.2d 12, 1986 Ind. LEXIS 1290

• Court: Indiana Supreme Court
• Decided: October 7, 1986
• Docket: 79S00-8601-PC-35
• Status: Published

Opinions

GIVAN, Chief Justice.

This is an appeal from denial of post-conviction relief.

In 1975 appellant was found guilty of Second Degree Burglary and was found to be an habitual criminal. As a result, he received a life sentence. In April of 1985, appellant filed a motion to correct his erroneous sentence, based upon the fact that one of the three prior felonies alleged to support the original habitual offender finding had subsequently been set aside in a post-conviction relief hearing.

He now claims this subsequent setting aside of one of the prior convictions renders his habitual criminal status void due to a violation of due process of law under the Fourteenth Amendment to the United States Constitution and art. 1, § 12 of the Indiana Constitution because the jury's verdict was presumptively based on an invalid predicate conviction.

The law at the time of appellant's conviction required that appellant be found to have been twice previously convicted, sentenced and imprisoned for felonies in order to be found to be an habitual offender. The fact that the State chose to cite three prior felonies did not invalidate the information. The third felony would be treated merely as surplusage. Hanks v. State (1948), 225 Ind. 593, 76 N.E.2d 702. However, appellant now claims that since one of the prior convictions has been set aside and the jury did not indicate which of the two prior felonies it based the habitual offender status on appellant is now entitled to have the habitual offender status set aside.

Following his original conviction, appellant appealed to this Court. See Eldridge v. State (1977), 266 Ind. 134, 361 N.E.2d 155, cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287. Although appellant might have insisted at his original trial that the jury designate which two of the three felonies they relied upon to fix his habitual criminal status, he did not do so. At this late date we must assume that the jury found that appellant had been convicted, sentenced and imprisoned upon all three of the felonies charged. The fact that appellant subsequently was successful in setting aside one of the three convictions still leaves two convictions established by the evidence in the original trial.

Appellant now claims that the Supreme Court held in his original appeal that State's Exhibit No. 7 was improperly admitted at trial and that it was necessary to establish that he had been imprisoned upon one of the two remaining prior felonies; however, appellant is incorrect in this observation. In the original appeal, the Supreme Court held that State's Exhibits Nos. 5, 6 and 7, purporting to be copies of commitments to the Indiana Reformatory, were not properly certified.

After making such an observation, the Court stated:

'"However|,] the error in admitting these exhibits is harmless, as evidence of his convictions and sentences was already before the jury through exhibits 2, 3 and 4. Further, exhibits 8, 9 and 10 were properly authenticated under the terms of Trial Rule 44. The erroncous admission of evidence is harmless when such evidence is cumulative of other evidence properly admitted." Id. at 189, 861 N.E.2d at 158-59.

Thus the Supreme Court in the original Eldridge case specifically held that there was ample evidence in the record showing conviction, sentencing and imprisonment of appellant on all three felonies.

The records in this case clearly indicate that appellant still stands properly convict ed of burglary and is in the status of an habitual offender. The trial court was correct in ruling that his petition for correction of his sentence be denied.

The trial court is affirmed.

PIVARNIK, J., concurs. SHEPARD, J., concurs in result with separate opinion. DeBRULER, J., dissents with separate opinion in which DICKSON, J., concurs.