Lingler v. State

644 N.E.2d 131, 1994 Ind. LEXIS 189, 1994 WL 700853

• Court: Indiana Supreme Court
• Decided: December 16, 1994
• Docket: 55S01-9412-PC-1221
• Status: Published

Opinions

ON PETITION TO TRANSFER

SHEPARD, Chief Justice.

Gary Lingler sought post-conviction relief following his seven felony convictions and a verdict that he was a habitual offender. The trial court denied his petition. We grant transfer to consider whether Lingler can obtain relief from the habitual offender finding without demonstrating that the prior convie-tions on which it was based do not meet the requirements of the statute. We conclude that our decision in Weatherford v. State (1998), Ind., 619 N.E.2d 915, means he cannot obtain relief without so demonstrating.

Lingler and two confederates abducted a young woman from the parking lot of her apartment complex at knifepoint, placed her in their vehicle, threatened her with a gun and repeatedly raped her. When they were finished, they tied her hands and threw her off a bridge into icy water in the dead of winter. A jury found Lingler guilty of two counts of rape, criminal deviate conduct while armed with a deadly weapon, criminal confinement, and attempted murder, among other things. We affirmed these convictions on direct appeal. Johnson v. State (1985), Ind., 472 N.E.2d 892.

Lingler's status as an habitual offender was based on three prior convictions: a robbery conviction in 1976, a conviction for committing a felony while armed in 1976, and theft in 1981. Lingler complains that the record of his trial does not reflect the date on which he committed the theft. Thus, he says, the record does not demonstrate that he was imprisoned for his first crimes prior to committing the theft and that he had been imprisoned for the theft before he committed the principal crime. This sequencing requirement has been imposed by this Court under the present habitual offender law and earlier versions, at least since Cooper v. State (1972), 259 Ind. 107, 284 N.E.2d 799.

As we explained in Weatherford, the purpose of post-conviction relief is not simply to relitigate claims that might have been litigated on direct appeal. Accordingly, a petitioner who seeks to raise an issue which might have been raised on direct appeal is commonly put to a tougher standard of proof that he would have been had the issue been raised earlier. This more difficult standard is consistent with due process. Accord Parke v. Raley, — U.S. —, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (differing burdens of proof upheld against due process challenge).

Lingler has not presented any evidence at all indicating that the prior convie-tions on which his habitual offender status is based are out of sequence. Called upon to provide evidence that his theft was committed before the first convictions were entered (proof which would entitle him to relief), he has not done so. The Court of Appeals thus rightly rejected his claims that the trial court erred on these grounds, 635 N.E.2d 1102.

The Court of Appeals did conclude, however, that Lingler was entitled to relief from his habitual finding because Lingler couched his claim in terms of ineffective assistance of counsel. Had my lawyer brought this claim earlier, he says, I would have prevailed.

This redesigning of the claim will not wash. The post-conviction process is open to prisoners to correct injustice in convictions. Lin-gler has not shown that there is anything unjust or untrue about the verdict that he is an habitual offender. We will not allow him to end run the decision in Weatherford by putting a new label on it. The trial court was correct to refuse him relief on the habitual offender finding.

With respect to the other issues raised by Lingler, the Court of Appeals correctly decided each, and we summarily affirm their opinion on those issues. Ind. Appellate Rule 11(B)B).

The trial court is affirmed.

GIVAN, DICKSON and SULLIVAN, JJ.,, concur. DeBRULER, J., dissents with separate opinion.