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

• Court: Indiana Court of Appeals
• Decided: September 21, 2016
• Docket: 48A02-1512-CR-2370
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016 Page 1 of 5 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016 Page 2 of 5 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

Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016 Page 3 of 5 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).

Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016 Page 4 of 5 [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

Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016 Page 5 of 5