MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                Jul 22 2020, 10:47 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy P. Broden                                         Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana

                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Wayne Dilden III,                                  July 22, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-111
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Randy J. Williams,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          79D01-1901-F2-5



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020                      Page 1 of 7
[1]   Robert Wayne Dilden III appeals his adjudication as a habitual offender. 1

      Dilden argues the State did not present sufficient evidence to support the

      adjudication because the State did not provide certified copies to prove his prior

      convictions, and Dilden asks that we vacate his adjudication without

      remanding for a new trial on the issue. The State concedes the evidence was

      insufficient and asks that we remand for a new trial on the habitual offender

      adjudication. We reverse Dilden’s adjudication and remand for a new trial to

      determine whether Dilden is a habitual offender.



                                Facts and Procedural History
[2]   The facts here are undisputed. On January 25, 2019, the State charged Dilden

      with Level 2 felony dealing in methamphetamine 2 and Level 3 felony

      possession of methamphetamine. 3 The State also alleged Dilden was a habitual

      offender. On November 19, 2019, the State amended the charging information

      to reduce the Level 3 felony possession charge to Level 4 felony possession of

      methamphetamine 4 and added a charge of Level 6 felony possession of a

      narcotic drug. 5




      1
          Ind. Code § 35-50-2-8(b).
      2
          Ind. Code § 35-48-4-1.1(e).
      3
          Ind. Code § 35-48-4-6.1(d).
      4
          Ind. Code § 35-48-4-6.1(c).
      5
          Ind. Code § 35-48-4-6(a).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020   Page 2 of 7
[3]   On December 3-4, 2019, the trial court held a jury trial, and the jury returned

      guilty verdicts for all three felony charges. In the second phase of the trial, the

      jury was asked to decide whether Dilden was a habitual offender. In the

      charging information, the State alleged Dilden was a habitual offender because

      he had “accumulated at least two (2) prior unrelated felony convictions, and at

      least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D

      felony[.]” (App. Vol. II at 130.) At trial, the State attempted to admit Exhibit

      17, which was a certified copy of Dilden’s conviction of Class C felony

      operating a motor vehicle while his driving privileges were forfeited for life.

      Dilden objected, arguing the State had not laid a proper foundation and the

      State had not provided Dilden with copies of the documents as part of

      discovery. The trial court sustained Dilden’s objection, telling the State, “but

      you still have your witness.” (Tr. Vol. II at 124.)


[4]   The State then presented testimony from Christopher Brophy, who had

      supervised Dilden while he was on probation for the Class C felony conviction.

      Brophy testified he was aware that Dilden’s criminal history included a

      conviction for “operating a vehicle as a habitual traffic violator” and Class D

      felony theft. (Id. at 129.) Based thereon, the jury found Dilden to be a habitual

      offender and the trial court adjudicated him as such. After a sentencing

      hearing, the trial court sentenced Dilden to eighteen years for dealing in

      methamphetamine and one year for possession of methamphetamine, to be

      served consecutive to each other. The trial court then enhanced Dilden’s




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020   Page 3 of 7
      sentence by six years based on his habitual offender adjudication, for an

      aggregate sentence of twenty-five years.



                                 Discussion and Decision
[5]   When presenting evidence to prove a habitual offender adjudication, the State

      must provide certified records of the prior convictions, “in the absence of a

      showing of the unavailability of the proper certified records.” Morgan v. State,

      440 N.E.2d 1087, 1090 (Ind. 1982). Parol evidence, such as testimony from a

      party with knowledge of the records’ existence or the defendant’s criminal

      history, by itself is insufficient. Davis v. State, 493 N.E.2d 167, 168 (Ind. 1986).

      The State concedes it did not prove Dilden was a habitual offender because it

      did not present sufficient evidence of his past convictions.


[6]   At issue is whether we should vacate Dilden’s habitual offender adjudication or

      remand for Dilden to be retried as to the habitual offender charge. Dilden

      argues we should vacate his habitual offender adjudication and not allow the

      State to retry him. Dilden relies on Nunley v. State, 995 N.E.2d 718 (Ind. Ct.

      App. 2013), clarified on reh’g 4 N.E.3d 669 (Ind. Ct. App. 2013), trans. denied, in

      which a panel of our court vacated Nunley’s habitual offender adjudication and

      did not remand for retrial. In Nunley, the State failed to allege Nunley was a

      habitual offender within the time limit required by Indiana Code section 35-34-

      1-5 for an amendment to the charging information. Thus, our Court reasoned

      on rehearing:



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020   Page 4 of 7
               Because the State’s original habitual offender allegation failed to
               list appropriate predicate offenses, there would be nothing to
               address on remand without an amendment to the allegation.
               Were we to remand now and allow the State to amend its
               original allegation, Indiana Code section 35-34-1-5 and its timing
               requirements would be rendered pointless.


      Id. at 670. 6 Nunley is inapposite, because the issue in Nunley was not the

      sufficiency of the evidence to prove Nunley was a habitual offender, it was the

      fact that Nunley had not been given sufficient notice that the State was pursuing

      a habitual offender allegation against him.


[7]   Instead, we rely on Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012), which has

      facts almost identical to those before us. In Dexter, the State did not provide

      certified documentary evidence of one of Dexter’s prior convictions to support

      his adjudication as a habitual offender. Id. at 237. Our Indiana Supreme Court

      held such evidence was insufficient to prove Dexter was a habitual offender:


               For almost 30 years, this Court has held that the State must
               introduce into evidence proper certified and authenticated
               records of the defendant’s prior felony convictions in order to
               prove beyond a reasonable doubt the existence of those prior



      6
        Dilden also argues that, since the State did not comply with the trial court’s discovery order and attempted
      to admit evidence that the defense had not yet seen, we should not remand because doing so “would
      undermine the trial court’s inherent authority to control trial proceedings and, where appropriate, to issue
      reasonable sanctions.” (Br. of Appellant at 11.) To support his argument, Dilden cites Allied Prop. & Cas. Ins.
      v. Good, 919 N.E.2d 144 (Ind. Ct. App. 2009), reh’g denied, trans. denied, in which a panel of our court held
      sanctions were appropriate when Allied violated a motion in limine, which prompted a mistrial. Id. at 156.
      Dilden does not indicate how the facts in Allied are aligned with the facts here. While we agree that the State
      should be more careful to ensure that the defense is given all documents required through discovery, Dexter v.
      State, 959 N.E.2d 235 (Ind. 2012), dictates the appropriate remedy here, which as we explain further herein is
      remand for a new trial on the State’s allegation that Dilden is a habitual offender.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020                       Page 5 of 7
              convictions. In the absence of a showing by the State that such
              records are unavailable, parol evidence alone is not sufficient to
              prove the fact of prior convictions. Even though additional
              supporting evidence is required to prove the identity of the
              defendant and may be required to prove the proper sequence of
              the felony convictions, proper[ly] certified and authenticated
              documentary evidence is required to establish that the prior
              convictions in fact occurred.


      Id. at 238 (internal citations omitted).


[8]   Our Indiana Supreme Court then moved to Dexter’s argument that “the State

      may not seek to have him sentenced as a habitual offender because it presented

      insufficient evidence the first time around.” Id. at 240. The Court disagreed,

      concluding Double Jeopardy did not prohibit the State from retrying Dexter for

      the habitual offender enhancement:


              [R]etrial on a sentencing enhancement based on a prior
              conviction is permitted even where the enhancement is reversed
              because of insufficient evidence. See Monge v. California, 524 U.S.
              721, 727-34, 118 S. Ct. 2246, 141 L.Ed.2d 615 (1998); Jaramillo v.
              State, 823 N.E.2d 1187, 1191 (Ind. 2005), cert. denied, 546 U.S.
              1030, 126 S. Ct. 730, 163 L.Ed.2d 568 (2005). In Jaramillo, we
              acknowledged that Justice Scalia’s dissent in Monge
              foreshadowed the Supreme Court’s watershed decision in
              Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
              L.Ed.2d 435 (2000), yet we rejected the defendant’s argument
              that Apprendi implicitly overruled Monge. Jaramillo, 823 N.E.2d
              at 1189-90. In Apprendi, the Court discussed Monge without
              suggesting that it was no longer good law, id. at 1189 (citing
              Apprendi, 530 U.S. at 488 n.14, 120 S. Ct. 2348), and, since
              Apprendi, the Court has cited Monge for the principle “that the
              ‘Double Jeopardy Clause does not preclude retrial on a prior

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020   Page 6 of 7
               conviction used to support recidivist enhancement,’” id. (quoting
               Dretke v. Haley, 541 U.S. 386, 395, 124 S. Ct. 1847, 158 L.Ed.2d
               659 (2004)). We see no reason to revisit our holding in Jaramillo
               at this time.


       Id.


[9]    The facts here are virtually identical. The State concedes it did not present

       sufficient documentary evidence of Dilden’s prior convictions. Thus, based on

       the holding in Dexter, the State may retry Dilden regarding whether the habitual

       offender enhancement should apply to him.



                                               Conclusion
[10]   The State concedes it did not present sufficient evidence that Dilden was a

       habitual offender and therefore we vacate Dilden’s habitual offender

       adjudication. However, the State may retry Dilden as a habitual offender and

       thus we remand. Should the trial court adjudicate Dilden as a habitual

       offender, we remind the court to explicitly state which conviction’s sentence is

       being enhanced.


[11]   Reversed and remanded.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020   Page 7 of 7
