Posey v. State

622 N.E.2d 1032, 1993 Ind. App. LEXIS 1312, 1993 WL 441694

• Court: Indiana Court of Appeals
• Decided: November 3, 1993
• Docket: 45A03-9302-CR-059
• Status: Published

Opinions

GARRARD, Judge.

A jury convicted Posey of Robbery While Armed, a Class B felony, and of being an habitual offender.

He asserts the court erred in the habitual offender phase of his trial by allowing into evidence “repeater sheets” which bore his fingerprints and a fingerprint card taken on Posey’s arrest for a robbery in 1982. (A fingerprint expert utilized these exhibits to express the opinion that Posey was the same person who had been convicted of the two prior offenses.) Posey contends these exhibits were surplusage.

We do not agree. The state was required to establish that the person on trial was the same person previously convicted. See Andrews v. State (1989) Ind., 536 N.E.2d 507. And the fingerprint verification was relevant to that determination. Furthermore, to the extent that the proof was surplusage, Posey suffered no harm therefrom. There was no prejudicial error.

Posey also contends that the court erred when it simply sentenced him to a term of forty-five years, rather than specifying the sentence it was imposing for robbery and the enhancement it was imposing because Posey was an habitual offender.

We agree that the usual process in sentencing discloses both elements. We find, however, that Posey has waived a detailed consideration of this issue because he failed to present to us in the transcript the record of the sentencing hearing. We are therefore unable to determine what the court may have said and done at the hearing. House v. State (1989) Ind., 535 N.E.2d 103, rehearing denied; Stallings v. State (1987) Ind., 508 N.E.2d 550; Jackson v. State (1986), Ind., 496 N.E.2d 32; Berry v. State (1985) Ind., 483 N.E.2d 1369.

The dissent reads AR 7.2(B) as precluding waiver. We disagree. The rule was adopted in an effort to shorten the delay and reduce the expense to litigants involved in the traditional practice of always ordering an entire transcript of the proceedings. Thus, where it appears from the arguments presented that additional parts of the record are necessary to determine an issue, the rule permits the parties or the court to request them.

As the decisions of our supreme court illustrate, however, the rule was not intended to relieve an appellant from his historical burden to establish that prejudicial error was committed. Thus, on the points directly assigned as errors, he has the burden of presenting both cogent argument and the appropriate portions of the record to establish the error. Posey failed to do so.

We, of course, presume that the court will follow the law. Posey acknowledges that pursuant to IC 35-50-2-8 the court was required to enhance his sentence by thirty years. IC 35-50-2-5, applicable to Class B felonies, provides that the presumptive term is ten years with not more than ten years added for aggravating circumstances, or more than four years subtracted for mitigating circumstances. It therefore appears that the total sentence of forty-five years was well within the province of the court for the offense committed. Accordingly, there is no indication of fundamental error.

Any error in the mechanics of sentencing Posey has been waived.

Affirmed.

STATON, J., concurs. HOFFMAN, J., dissents and files separate opinion.