                                                            FILED
                                                        Apr 28 2016, 7:50 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stephen T. Owens                                            Gregory F. Zoeller
Public Defender of Indiana                                  Attorney General

Cory J. Lightner                                            Larry D. Allen
Deputy Public Defender                                      Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Joshua Howell,                                              April 28, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            35A05-1510-PC-1634
        v.                                                  Appeal from the Huntington
                                                            Circuit Court
State of Indiana,                                           The Honorable Thomas M. Hakes,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            35C01-1203-PC-4



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016                Page 1 of 11
                                            Case Summary
[1]   At the time of the crime in this case, burglary was generally a Class C felony but

      was a Class B felony if the building or structure was a “dwelling.” The State

      charged Joshua Howell with Class B felony burglary for breaking into a house

      just hours after the sole occupant was found dead inside. We find that it is

      reasonable to construe “dwelling” to include buildings and structures that have

      been occupied in the immediate past by a recently deceased resident. This is

      because even after the sole occupant of a house dies, it is common and expected

      for people still to be at the house. To find otherwise would reduce the

      criminality of burglars who target houses where the sole occupant has recently

      died. Further, the fact that the house was ordered vacated by the county health

      department just hours before Howell broke in does not impact whether it was a

      dwelling for purposes of our burglary statute. We therefore affirm.



                             Facts and Procedural History
[2]   On the afternoon of August 2, 2011, Debra Scheiber went to visit her elderly

      mother, Sylvia Fry, who lived alone at 511 Sherman Street in Huntington.

      When Debra arrived, she found her mother dead. Debra called the Huntington

      Police Department to report her mother’s death, and police officers arrived at

      3:24 p.m. Because Sylvia’s house was filled with trash, see Tr. p. 17; Ex. C, D,

      & E, the police contacted the Huntington County Department of Health

      (“health department”) at 4:03 p.m. Joe Rakoczy from the health department



      Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016   Page 2 of 11
responded and determined that 511 Sherman Street was “unfit for human

habitation.” Ex. A. Rakoczy placed an orange sticker on the door that stated:

                                      Public Health Notice


                         By Order Of: Health Officer or Designee


          Due to Unsanitary Conditions, this dwelling is declared “Unfit
         for Human Habitation” (Pursuant to IC 16-41-20-1 et seq.) and
         ordered to remain vacated of human occupancy until the defects
                            identified are corrected.


                                               *****


                 DO NOT REMOVE UNDER PENALTY OF LAW


Id. Sylvia’s body was removed from the house, and the police left at 4:39 p.m.

When the police left, Rakoczy was still there speaking with family. Rakoczy

also sent a letter to Sylvia’s estate that stated, in pertinent part:

        Based upon the existence of unsanitary conditions that are likely
        to cause sickness among persons who might enter or occupy the
        dwelling, it is ordered by this department that all occupants of the
        dwelling be vacated within five (5) days after the date of this
        notification, or no later than midnight, August 6, 2011.


                                               *****


        At no time after the posting of the Unfit for Human Habitation
        Order shall the home be occupied by any person other than for
        the purpose of fulfilling the remedial requirements of this Order.
        Corrective action must be completed within forty-five (45) days

Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016    Page 3 of 11
               after the date of this notification, or no later than midnight,
               September 16, 2011.


      Ex. B.

[3]   Later that same day, at 9:58 p.m., the police were called back to 511 Sherman

      Street on a report of a burglary in progress. Howell entered the house through

      an unlocked sliding door and took four porcelain dolls. As Howell was walking

      down the street with the dolls, a neighbor stopped him. A fight ensued, and

      Howell bit the neighbor. The neighbor restrained Howell until the police

      arrived. Howell told the police that he had seen the death investigation earlier

      that day and went inside the house to see what he could take. Ex. 7 (Narrative

      Report, p. 2).

[4]   The State charged Howell with Class B felony burglary (elevated from a Class C

      felony based on 511 Sherman Street being a “dwelling”), Class A misdemeanor

      battery (for the incident with the neighbor), and being a habitual offender. Ex.

      1. Howell and the State later entered into a plea agreement in which Howell

      agreed to plead guilty to Class B felony burglary and Class A misdemeanor

      battery, and the State agreed to dismiss the habitual-offender enhancement.

      The plea agreement provided that Howell would receive an eighteen-year

      sentence. Ex. 2. The trial court accepted the plea agreement and sentenced

      Howell to eighteen years.

[5]   In 2012, Howell filed a pro se petition for post-conviction relief, which was

      amended by counsel in 2015. The petition alleged that Howell’s trial counsel


      Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016   Page 4 of 11
      was ineffective and that his guilty plea was not knowing, voluntary, and

      intelligent. Appellant’s App. p. 55. The foundation of both claims was that 511

      Sherman Street was not a “dwelling” as defined by Indiana law when Howell

      broke in.

[6]   The post-conviction court entered findings of fact and conclusions of law

      denying relief because it found that 511 Sherman Street was a dwelling for

      purposes of our burglary statute. Howell now appeals.



                                  Discussion and Decision
[7]   Howell contends that the post-conviction court erred in denying his petition for

      post-conviction relief. He argues that his guilty plea was not knowing,

      voluntary, and intelligent and that his trial counsel was ineffective. Both claims

      hinge on whether 511 Sherman Street was a dwelling when Howell broke in.

[8]   At the time of the crime in this case, burglary was generally a Class C felony but

      was a Class B felony if “the building or structure is a . . . dwelling.” Ind. Code

      Ann. § 35-43-2-1 (West 2012).1 Dwelling, in turn, means “a building, structure,

      or other enclosed space, permanent or temporary, movable or fixed, that is a

      person’s home or place of lodging.” Ind. Code § 35-31.5-2-107.2




      1
       The burglary statute was amended effective July 1, 2014. Burglary is now generally a Level 5 felony and a
      Level 4 felony “if the building or structure is a dwelling.” Ind. Code Ann. § 35-43-2-1 (West Supp. 2015).
      2
        This definition of dwelling was previously located at Indiana Code section 35-41-1-10. It was moved
      to its current location in 2012. See P.L. 114-2012, § 67.

      Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016                      Page 5 of 11
[9]    There are numerous Indiana cases addressing whether a building or structure is

       a dwelling, but none of them address the law-school-exam question presented

       here. Traditionally, our courts have said that burglary of a dwelling is not so

       much an offense against property as it is an offense against the sanctity and

       security of habitation. Watt v. State, 446 N.E.2d 644, 645 (Ind. Ct. App. 1983);

       see also Ferrell v. State, 565 N.E.2d 1070, 1072 (Ind. 1991) (“This Court has

       traditionally held burglary . . . to be an offense against the habitation.”). To

       that end, the legislature has provided an increased penalty for burglarizing a

       dwelling “because of the potential danger to the probable occupants.” Byers v.

       State, 521 N.E.2d 318, 319 (Ind. 1988).


[10]   This is not to say that an occupant must be present at the time of the burglary in

       order for the building or structure to constitute a dwelling.3 It is well established

       that if a house is left empty temporarily by its occupant, the house does not lose

       its status as a dwelling if the occupant intends to return. See Phillips v. State, 514

       N.E.2d 1073, 1075 (Ind. 1987) (although the occupants “were temporarily out

       of the[ir] homes on vacation” when the burglaries were committed, this did not

       “remove the[ir] homes from the definition of dwellings”); Welch v. State, 509

       N.E.2d 824, 825 (Ind. 1987) (although at the time of the burglary the victim was




       3
         Before our burglary statute was amended in 1982, it defined first-degree burglary as breaking and
       entering “a dwelling or other place of human habitation.” Phillips v. State, 514 N.E.2d 1073, 1075 (Ind.
       1987). The old version was interpreted as requiring “a showing [that] the building was a dwelling and
       that persons were dwelling in it at the time of the break-in.” Id.; Tipton v. State, 981 N.E.2d 103, 108-09
       (Ind. Ct. App. 2012), trans. denied. The Indiana Supreme Court has held that the current burglary
       statute does not require “the occupier of the residence to be in the home at the time of the burglary.”
       Phillips, 514 N.E.2d at 1075.

       Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016                           Page 6 of 11
temporarily staying with his parents until his new furniture could be delivered

to his apartment—and in fact the victim returned to his apartment shortly after

the burglary—“the victim’s temporary absence did not alter the character of his

apartment as a dwelling”); Hayden v. State, 19 N.E.3d 831, 837 (Ind. Ct. App.

2014) (although the occupant of the house had been in a nursing home for one

year when the burglary was committed and it was unlikely that he would

return, the house was still a dwelling because his personal possessions were

there, the electricity was on, his mail was delivered there, someone took care of

the outside of the house, and he talked about returning), reh’g denied, trans.

denied; Middleton v. State, 181 Ind. App. 232, 391 N.E.2d 657, 661 (1979)

(although a house was unoccupied for five months while the occupant

vacationed in Florida, the house was still a dwelling because the occupant

intended to and did, in fact, return); see also 3 Wayne R. LaFave, Substantive

Criminal Law § 21.1(c) (2d ed. 2003) (“If the place is one of human habitation,

there is no requirement that a person be present therein at the time of the

offense. If the residents are away, be it for a short time or for extended portions

of the year, it will still suffice as a dwelling house.” (footnotes omitted)); 3

Charles E. Torcia, Wharton’s Criminal Law § 325 (15th ed. 1995) (“If a person

leaves his dwelling house for a particular or indefinite period of time, intending

thereafter to return—as where he spends the summer months at the seashore or

the winter months in the south—his dwelling house remains a dwelling house

even during such absence.”).




Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016   Page 7 of 11
[11]   The common thread to these cases is that an unoccupied house is a dwelling if

       the occupant intends to return. See Carrier v. State, 227 Ind. 726, 89 N.E.2d 74,

       76 (1949) (“[A] house[,] although furnished as a dwelling house, loses its

       character as such for the purposes of burglary if the occupant leaves it without

       the intention to return.”); 3 Torcia, supra, § 325 (“If a person leaves his dwelling

       house, intending never to return, it ceases to be a dwelling house. It does not

       become a dwelling house again until a new person begins to live in it; he begins

       to live in it when he starts to use it regularly for the purpose of sleeping.”

       (footnote omitted)).

[12]   But death is different than a temporary absence. Although there are no Indiana

       cases addressing whether a building or structure is a dwelling when the sole

       occupant is dead,4 we find that it is reasonable to construe dwelling to include

       buildings and structures that have been occupied in the immediate past by a

       recently deceased resident. This rule is consistent with the purpose of our

       burglary statute, which is to provide an increased penalty for burglarizing a

       dwelling “because of the potential danger to the probable occupants.” Byers,

       521 N.E.2d at 319. As other states have recognized, even after the sole




       4
         In Keel v. State, 165 Ind. App. 579, 333 N.E.2d 328 (1975), reh’g denied, the defendant scanned the obituary
       notices in the newspaper and planned to burglarize the home of Lula Roberson, who had died and was to be
       buried the next day. The defendant “reasoned that the house would be vacant, and that if [he was] caught,
       [he] could only be charged with second degree burglary.” Id. at 330. However, before Lula’s death, Burl
       McClain came to live with her for “companionship and protection” and remained in Lula’s house for one
       week after her death. Id. This Court concluded that because Lula’s house was Burl’s “abode at the time of
       [her] death and for a week thereafter,” the house “was a place of human habitation at the time of the
       burglary.” Id. Keel does not address the scenario presented here.

       Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016                         Page 8 of 11
       occupant of a house dies, it is common and expected for people still to be at the

       house. See, e.g., Cochran v. Commonwealth, 114 S.W.3d 837, 839 (Ky. 2003)

       (noting that the time “immediately following a person’s death is often hectic

       and chaotic for the deceased’s family, friends and loved ones” and “is a time of

       gathering”; therefore, the “[u]se of the deceased’s home as a place of temporary

       residence . . . is common and is to be expected”). To find otherwise would

       reduce the criminality of burglars who target houses where the sole occupant

       has recently died even though there is still a good chance that people will be

       there. See People v. Barney, 786 N.E.2d 31, 35 (N.Y. 2003) (“We refuse to adopt

       a rule that a house loses its character as a dwelling immediately upon the death

       of its sole occupant merely because there is no conclusive evidence that any

       other person intended to reside there. To do so would reduce the criminality of

       a burglar who, having knowledge of an occupant’s or homeowner’s death,

       would seek to exploit the situation, when the potential harm to persons—such

       as grieving friends and relatives—would still be present.”); see also Cochran, 114

       S.W.3d at 840 (noting that because it is common to use a deceased’s home

       following death, it “should not be discounted by miscreants who would seek to

       take advantage of the misfortune of others”).

[13]   Here, Sylvia, the sole occupant of 511 Sherman Street, was found dead inside

       her house hours before Howell broke in. In fact, Howell knew that Sylvia had

       been found dead earlier that day. See Appellant’s Br. p. 12 (“Howell admitted

       to observing the death investigation earlier that day.”). Accordingly, 511

       Sherman Street was a dwelling when Howell broke in.


       Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016   Page 9 of 11
[14]   Further, the fact that the health department determined that 511 Sherman Street

       was “unfit for human habitation” hours before Howell broke in does not impact

       whether the house was a dwelling for purposes of our burglary statute.5

       Notably, Howell does not cite any cases where a determination that a house

       was inhabitable removed it from the definition of dwelling. Courts that have

       addressed this issue have found the opposite. See People v. Aguilar, 181 Cal.

       App. 4th 966, 970 (Cal. Ct. App. 2010) (concluding that the habitability of a

       dwelling is viewed through the eyes of the burglary victim, who in this case had

       been ordered by apartment management to temporarily relocate to a hotel

       because of fire damage), rev. denied; People v. Salgado, 10 N.Y.S.3d 67, 68 (N.Y.

       App. Div. 2015) (noting that although the “apartment” did not comply with

       code, there was no requirement that in order to be considered a “dwelling” for

       purposes of burglary, the building had to comply with “certificates of

       occupancy, building codes and the like,” such as a city order to vacate due to

       fire damage). We acknowledge that in these cases the occupants intended to

       return. But these cases did not involve a sole occupant’s recent death. Given

       the recency of Sylvia’s death and the fact that the health department’s orange

       sticker and letter specifically contemplated that people could enter the trash-




       5
         Title 16 of the Indiana Code, which applies to health departments, defines “dwelling” as “any part of any
       building or the building’s premises used as a place of residence or habitation or for sleeping by a person.”
       Ind. Code § 16-18-2-104. The definition of “dwelling” contained in Title 35—not Title 16—applies to this
       criminal case.

       Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016                        Page 10 of 11
       filled house to clean it, 511 Sherman Street was a dwelling when Howell broke

       in.

[15]   Because 511 Sherman Street was a dwelling when Howell broke in, his post-

       conviction claims based upon the house not being a dwelling fail.

[16]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 35A05-1510-PC-1634 | April 28, 2016   Page 11 of 11
