Friday, October 14, 2005
Ind. Decisions - Supreme Court posts three on habitual offender enhancements
Posted late yesterday afternoon, Anthony Jacobs v. State of Indiana, a 9-page opinion by Chief Justice Shepard, begins:
In 2000, this Court held that a misdemeanor handgun charge enhanced to a felony could not be further enhanced by use of the general habitual offender statute. Ross v. State, 729 N.E.2d 113, 116-17 (Ind. 2000). We now consider whether persons whose cases were resolved prior to that holding are entitled to its benefit retroactively in post-conviction proceedings. We conclude that they are.In State of Indiana v. David Leon Jones, CJ Shepard writes:
Petitioner David Leon Jones challenges a habitual offender enhancement based upon a handgun charge that was enhanced to a felony in the same proceeding. According to our decision in Ross v. State, 729 N.E.2d 113 (Ind. 2000), the habitual enhancement cannot be used for this purpose. We remand to the trial court to consider whether the habitual may be “repositioned” to one of the other felonies that petitioner was convicted of in the same proceeding. * * *In Shelley Johnson v. State of Indiana CJ Shepard writes:
We hold today that Ross is to be applied retroactively on collateral review to those cases final at the time of its announcement. Jacobs v. State, __ N.E.2d __, __ (Ind. 2005). The only question that remains is whether Jones’ failure to amend his appellate brief, petition for rehearing, or seek transfer to this Court following our decision in Ross, which occurred within thirty days of the Court of Appeals denial of his original direct appeal, constitutes waiver of that issue on collateral review. * * *
Insisting that Jones’ lawyer on direct appeal find some heroic way to plead an authority decided after the Court of Appeals had decided his case asks too much. We decline to find waiver. That is the extent of the good news for Jones.
The bad news for Jones is that the State is not precluded from seeking to re-sentence him under the habitual offender statute, inasmuch as the trial court was entering sentences on more than one felony.
Shelley Johnson appeals the denial of his petition for post-conviction relief. We address only a single issue, whether Johnson was entitled to the retroactive benefit of our decision in Ross v. State, 729 N.E.2d 113 (Ind. 2000). As we hold today in Jacobs v. State, __ N.E.2d __ (Ind. 2005), as a change in substantive law, Ross is to be applied retroactively on collateral review. We thus reverse the post-conviction court. * * *
This Case Is Like Jacobs. As we hold in Jacobs v. State, __ N.E.2d __, __ (Ind. 2005), because our decision in Ross affects the substantive law controlling application of the general habitual offender statute, it applies retroactively on collateral review to those cases final at the time Ross was announced. Thus, the eight-year enhancement added to Johnson’s sentence under the general habitual offender statute is vacated.
Posted by Marcia Oddi on October 14, 2005 09:02 AM
Posted to Ind. Sup.Ct. Decisions