Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Apr 09 2013, 8:44 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   IAN MCLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DARNELL TINKER,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )      No. 02A03-1112-CR-587
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                            Cause No. 02D05-1108-FB-193



                                         April 9, 2013


      MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION


NAJAM, Judge
       On July 25, 2012, we affirmed Tinker’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 than 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 15, 2012, Tinker

filed a petition for rehearing in which he asserted that the holding in Dye applied

retroactively to his appeal. We held Tinker’s 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 Tinker at the time he filed his initial

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

                                             2
1130, 1132 (Ind. Ct. App. 2007), trans. denied), trans. denied. Tinker’s argument in his

petition on rehearing that Mills or related law should be applied to him is waived. See

Shepherd v. State, ___ N.E.2d ___, slip op. at 3 (Ind. Ct. App. April 8, 2013) (opinion on

rehearing).

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

appeal demonstrates that Tinker stipulated to his SVF status based on a 1989 conviction

for armed robbery, and he was subsequently adjudicated as an habitual offender based on

a 1976 conviction for armed robbery and a 1987 Class C felony forgery conviction.

There is no reason for this court to believe that any one of those three underlying felonies

is in any way related to the other.

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

decision.

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




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