Stanley v. State

849 N.E.2d 626, 2006 Ind. App. LEXIS 1103, 2006 WL 1604737
CourtIndiana Court of Appeals
DecidedJune 13, 2006
DocketNo. 92A03-0512-CR-600
StatusPublished
Cited by5 cases

This text of 849 N.E.2d 626 (Stanley v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stanley v. State, 849 N.E.2d 626, 2006 Ind. App. LEXIS 1103, 2006 WL 1604737 (Ind. Ct. App. 2006).

Opinion

OPINION

BAILEY, Judge.

Case Summary

In this belated appeal, Appellant-Defendant Joshua P. Stanley (“Stanley”) appeals the trial court’s determination that he is a habitual offender — a determination that resulted in the imposition of a fifteen-year sentencing enhancement. Because Stanley’s appeal follows a guilty plea and an admission of being a habitual offender, we dismiss without prejudice to his right to raise the issue in a subsequent post-conviction proceeding.

Issue

Stanley raises one issue, which we restate as whether his belated appeal, the crux of which concerns the sufficiency of the factual basis supporting his admission to being a habitual offender, should be dismissed without prejudice to permit Stanley to file a petition for post-conviction relief.

Facts and Procedural History

On November 12, 2002, Stanley broke into and entered the residence of Holly Gordon (“Gordon”) — the mother of his child — with the intent to steal certain property. Once inside, Stanley took a VCR and a laptop computer without Gordon’s permission. Thereafter, on October 2, 2002, Stanley broke into and entered the residence of Kevin McKay and Julie Gar-ber with the intent to take certain property without the owners’ permission. After gaining entry into the residence, Stanley took' certain property, which he later pawned for money;

On January 7, 2003, the State charged Stanley with burglary as a Class B felony and theft as a Class D felony1 for his actions on November 12, 2002. That same day, the State also charged Stanley with burglary as a Class B felony and theft as a Class D felony for his actions on October 2, 2002. In addition, the State alleged that Stanley was a habitual offender because he had accumulated the following predicate felony offenses: (1) nonsupport of a dependent child on November 26, 2001; and (2) possession of a controlled substance on February 23, 2002. On March 24, 2003, Stanley pleaded guilty to two counts of burglary as Class B felonies and admitted to being a habitual offender for committing the alleged predicate offenses. In exchange, the State agreed to dismiss the theft charges and to recommend that the B felony sentences be served concurrently and, further, that the habitual offender enhancement be capped at fifteen years.

At a subsequent hearing, and after the trial court had advised Stanley of the consequences of pleading guilty, Stanley admitted that he was a habitual offender. The trial court advised Stanley that, as a result of his guilty pleas, he could receive a [628]*628minimum sentence of sixteen yeare — -i.e., two concurrent terms of six years for each Class B felony conviction to be served consecutive to ten years for the habitual offender enhancement — or a maximum sentence of thirty-five years — i.e., two concurrent terms of twenty years for the Class B felony convictions, served consecutive to fifteen years for his habitual offender status.2 Stanley acknowledged that he understood the aggregate sentencing range for his offenses.

After conducting a sentencing hearing on April 21, 2003, the trial court found the following aggravating circumstances: (1) Stanley’s prior criminal history, which consists of a juvenile adjudication for possessing marijuana, as well as adult convictions for burglary as a Class C felony, possession of marijuana as a Class A misdemean- or, two counts of criminal conversion as Class A misdemeanors, two counts of theft as Class D felonies, non-support of a dependent as a Class D felony, possession of a controlled substance as a Class D felony, public intoxication as a Class B misdemeanor, and furnishing alcohol to a minor as a Class B misdemeanor; (2) that he has violated the conditions of his probation or suspended sentences in the past; (3) that he committed the present offenses while on probation; and (4) his drug usage. In mitigation, the trial court found that Stanley has had an unstable childhood inasmuch as both of his parents have significant criminal histories. On balance, the trial court concluded that the aggravating circumstances outweighed the mitigator and sentenced Stanley to the Indiana Department of Correction for two concurrent terms of fifteen years. The trial court also imposed a consecutive sentence of fifteen years for the habitual offender enhancement, for an aggregate sentence of thirty years.

On August 23, 2004, Stanley, pro se, filed a petition for post-conviction relief, alleging, in part, that his admission to being a habitual offender was coerced. On January 10, 2005, Stanley, by counsel, filed a motion to dismiss the post-conviction petition without prejudice and a motion to pursue a belated appeal under PosNCon-viction Rule 2, both of which the trial court granted. This belated appeal followed.

Discussion and Decision

On appeal, Stanley argues that his thirty-year sentence is erroneous because one of the predicate offenses supporting his habitual offender enhancement — i.e., the possession offense — does not count as a “prior unrelated felony conviction” under Indiana Code Section 35-50-2-8.3 Stanley [629]*629frames the issue presented as a sentencing claim of error. Specifically, he asserts: “Pursuant to the Indiana Supreme Court’s holding in Collins v. State, 817 N.E.2d 230 (Ind.2004), [Stanley] appeals the sentence imposed by the trial court following his plea of guilty[,] which left sentencing discretion to the trial court.” Appellant’s Br. at 2.

In Indiana, it is well settled that a person, like Stanley, who pleads guilty cannot challenge his or her convictions by means of direct appeal except through a petition for post-conviction relief. See Kling v. State, 837 N.E.2d 502, 504 (Ind.2005). One of the things a person gives up by pleading guilty is the right to a direct appeal. Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind.1996). However, if, in a guilty plea situation, there is no agreement between the defendant and the State as to the sentence to be imposed — called an “open plea,” i.e., one where the judge has discretion as to the sentence to be imposed, the sentence must be challenged — if at all — by means of a direct appeal. Collins, 817 N.E.2d at 231. Accordingly, the proper procedure for an individual who has pleaded guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under Indiana Post-Conviction Rule 2. Id. at 233.

Here, however, Stanley does not contest the propriety of his thirty-year sentence per se. Put another way, he does not contend that the trial court sentenced him outside of the statutory range for his B felony convictions or that the trial court erred by imposing an illegal term of years upon the habitual offender determination. Nor does Stanley maintain that the trial court improperly considered certain aggravating and mitigating circumstances or that his sentence is inappropriate under Indiana Appellate Rule 7(B). Rather, the crux of Stanley’s argument, on direct appeal, is that the factual basis supporting his admission as a habitual offender is insufficient, such that the habitual offender determination is, itself, erroneous. In his attorney’s words:

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Cite This Page — Counsel Stack

Bluebook (online)
849 N.E.2d 626, 2006 Ind. App. LEXIS 1103, 2006 WL 1604737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-state-indctapp-2006.