Stone v. State

599 N.E.2d 616, 1992 Ind. App. LEXIS 1442, 1992 WL 236393

• Court: Indiana Court of Appeals
• Decided: September 28, 1992
• Docket: No. 59A05-9205-CR-00175
• Status: Published

Opinion

HOFFMAN, Judge.

Appellant-defendant Darren B. Stone appeals his conviction for escape, a Class C felony, and an habitual offender determination.

The facts relevant to the appeal disclose that on April 28, 1991, the State filed an information charging appellant with Class C felony escape. On August 12, 1991, the State amended the information, adding an habitual offender charge. The State amended the habitual offender charge on January 6, 1992, and appellant entered a guilty plea to the escape charge that same day. Also on January 6, the court accepted the guilty plea and convened a jury to hear the evidence on the habitual offender charge. The jury determined appellant to be an habitual offender, and on February 5, 1992, the court sentenced appellant to a 38-year term of imprisonment (8 years on the escape conviction with a 30-year enhancement due to the habitual offender determination).

Appellant raises four issues for review; however, this Court finds the following issue dispositive of the appeal: whether the trial court erred in convening a jury to determine appellant's habitual offender status after accepting appellant's guilty plea on the underlying felony.¹ As both parties note, IND.CODE § 85-50-2-8 (1992 Supp.), the habitual offender statute, provides in pertinent part:

"(c) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing under IC 35-88-1-8."

(Emphasis supplied.) The court clearly violated the mandatory language of the statute by not conducting the habitual offender proceeding without a jury. However, as the error was not one of evidence insufficiency, the remedy is a retrial of the habitual offender charge rather than a reversal. See Phillips v. State (1989), Ind., 541 N.E.2d 925, 926. Accordingly, this Court remands the cause to the trial court to vacate the habitual offender determination and retry the habitual offender charge.²

Remanded.

GARRARD and STATON, JJ., concur.

1 . This Court would note that, as a general rule, a defendant may not pursue a direct appeal from a guilty plea unless sentencing errors are the only issue. See Browning v. State (1991), Ind.App., 576 N.E.2d 1315, 1317. However, in order to preserve judicial resources and promote efficiency in the resolution of cases, this Court will overlook appellant's failure to file a petition for post-conviction relief and address the merits of the habitual offender issue.

2 . Appellant also claims trial counsel was ineffective for failing to object to a jury hearing the evidence on the habitual offender charge; however, due to our ruling, any ineffectiveness on the part of trial counsel was harmless.