FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                            GREGORY F. ZOELLER
Marion County Public Defender               Attorney General of Indiana
Indianapolis, Indiana
                                            ERIC P. BABBS
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                                                      Apr 08 2013, 9:32 am


                             IN THE
                   COURT OF APPEALS OF INDIANA

DARRYL SHEPHERD,                            )
                                            )
      Appellant-Defendant,                  )
                                            )
             vs.                            )      No. 49A05-1111-CR-600
                                            )
STATE OF INDIANA,                           )
                                            )
      Appellee-Plaintiff.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Grant W. Hawkins, Judge
                          Cause No. 49G05-0911-MR-97663



                                  April 8, 2013


                   OPINION ON REHEARING - FOR PUBLICATION


NAJAM, Judge
       On July 3, 2012, we affirmed Shepherd’s conviction for unlawful possession of a

firearm by a serious violent felon (“SVF”) and his sentence as an habitual offender in a

memorandum decision. On July 31, 2012, the Indiana Supreme Court, in Dye v. State,

held that an SVF cannot have his sentence enhanced under the general habitual offender

statute. Dye v. State, 972 N.E.2d 853, 855, 858 (Ind. 2012). On August 2, 2012,

Shepherd filed a petition for rehearing in which he asserted, among other things, 1 that the

holding in Dye applied retroactively to his appeal. On August 17, 2012, the State filed its

response to Shepherd’s petition, asking that we hold his petition in abeyance while the

State sought rehearing in Dye.

       On March 21, 2013, the Indiana Supreme Court issued its opinion on rehearing in

Dye. In its opinion on rehearing, the court clarified that its earlier holding was not

intended to break new ground but, rather, was simply an application of the law

announced in Mills v. State, 868 N.E.2d 446 (Ind. 2007). Dye v. State, ___ N.E.2d ___,

slip op. at 3-4 (Ind. Mar. 21, 2013) (opinion on rehearing). Specifically, the court

clarified that an SVF conviction enhanced by an habitual offender adjudication is

impermissible only when the same underlying offense, or an underlying offense within

the res gestae of another underlying offense, is used to establish both the SVF status and

the habitual offender status. Id. at 5-6.

       Mills is established law and was available to Shepherd at the time he filed his

initial brief on direct appeal, but Shepherd did not argue that Mills or related law applied

       1
           Shepherd’s other arguments in his petition for rehearing are without merit, and we do not
consider them.
                                                 2
in his appeal. “[I]t is well established that ‘any question not argued on appeal cannot be

raised for the first time in a petition for rehearing.’” Carey v. Haddock, 881 N.E.2d 1050,

1050 (Ind. Ct. App. 2008) (quoting Brockman Enters. LLC v. City of New Haven, 868

N.E.2d 1130, 1132 (Ind. Ct. App. 2007), trans. denied), trans. denied.         Shepherd’s

argument in his petition on rehearing that Mills or related law should be applied to him is

waived.

       Shepherd’s waiver notwithstanding, our review of the record available on direct

appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in

cocaine, as a Class B felony, while his habitual offender enhancement was based on a

1991 Class C felony conviction for battery and a 2008 Class D felony conviction for

intimidation. There is no reason for this court to believe that any one of those three

underlying felonies is in any way related to another.

       Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior

decision.

RILEY, J., and DARDEN, Sr.J., concur.




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