MEMORANDUM DECISION
                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                       Sep 21 2016, 8:33 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard Walker                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey K. Mitchell,                                     September 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1512-CR-2370
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1410-F3-1878



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016   Page 1 of 5
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jeffrey K. Mitchell (Mitchell), appeals his conviction for

      criminal confinement resulting in serious bodily injury, a Level 3 felony, Ind.

      Code § 35-42-3-3(a), and his adjudication as a habitual offender, I.C. § 35-50-2-

      8(a).


[2]   We affirm.


                                                    ISSUE

[3]   Mitchell raises one issue on appeal, which we restate as follows: Whether the

      State presented sufficient evidence beyond a reasonable doubt to sustain

      Mitchell’s habitual offender adjudication.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 21, 2014, the State filed an Information, charging Mitchell with

      Count I, battery resulting in serious bodily injury, a Level 5 felony; Count II,

      criminal confinement, a Level 3 felony, and Count III, invasion of privacy, a

      Class A misdemeanor. On November 16, 2015, the State amended the

      Information by adding Count IV, a habitual offender enhancement. The

      habitual offender allegation included three prior unrelated felonies: a Class C

      felony battery under Cause No. 48D03-8811-CF-139, a Class C felony escape

      under Cause No. 48D03-9004-CF-59 (Cause 59), and a Class D felony criminal

      confinement under Cause No. 48D03-0109-DF-307 (Cause 307). With respect

      to the escape conviction in Cause 59, the State alleged that the offense occurred


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016   Page 2 of 5
      on April 27, 1990, with a subsequent conviction and sentencing on April 7,

      1997.


[5]   On December 3, 2015, the State filed a second amendment to the Information

      by amending the habitual offender Information. The amended habitual

      offender Information included only two of the previous three predicate offenses:

      the escape conviction in Cause 59 and the criminal confinement conviction

      under Cause 307.


[6]   On December 1 through December 3, 2015, the trial court conducted a

      bifurcated jury trial. During Phase I of the jury trial, the jury found Mitchell

      guilty as charged on Counts I-III. In Phase II, the State introduced into

      evidence Exhibits supporting the predicate offenses of the amended habitual

      offender Information. Specifically, the State offered certified copies of the

      charging Information and sentencing order for the escape conviction under

      Cause 59, as well as fingerprints. The sentencing date for the escape conviction

      was listed as April 7, 1997. With respect to the criminal confinement

      conviction under Cause 307, the State introduced the charging Information, the

      amended charging Information, the sentencing order, the Chronological Case

      Summary, and two mugshots, as well as fingerprints. Mitchell offered no

      evidence in Phase II and did not give a closing statement. At the close of the

      evidence in Phase II, the jury found Mitchell guilty of being a habitual offender.


[7]   On December 17, 2015, the trial court sentenced Mitchell to concurrent terms

      of sixteen years’ incarceration for Count I and one year for Count III, as well as


      Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016   Page 3 of 5
       a separate twenty year consecutive sentence for the habitual offender

       adjudication. On July 3, 2016, the trial court amended its sentencing order and

       merged Count I into Count II. The trial court sentenced Mitchell to sixteen

       years’ incarceration on Count II, enhanced by twenty years due to the habitual

       offender adjudication, and a concurrent one-year sentence on Count III.


[8]    Mitchell now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


[9]    Mitchell contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain Mitchell’s habitual offender adjudication based on

       the escape conviction under Cause 59 because this conviction had been vacated

       on appeal.


[10]   The standard of review for the sufficiency of a habitual offender enhancement is

       the same as for any other sufficiency claim. Woods v. State, 939 N.E.2d 676, 677

       (Ind. Ct. App. 2010), trans. denied. Accordingly, a person is a habitual offender

       if the State proves beyond a reasonable doubt that he has two prior, unrelated

       felony convictions. I.C. § 35-50-2-8. To support a habitual offender finding, (1)

       the prior unrelated felony must be committed after sentencing for the first prior

       unrelated felony conviction; and (2) the offense for which the State seeks to

       have the person sentenced as a habitual offender must be committed after

       sentencing for the second prior unrelated felony conviction. I.C. § 35-50-2-8(f).




       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016   Page 4 of 5
[11]   We agree with Mitchell that his escape conviction in Cause 59 was reversed by

       this court in 1999 because we vacated his plea agreement for the escape charge;

       however, we also instructed the State to “retry Mitchell on the . . . escape

       [Count].” (Appellant’s App. p. 308). Accordingly, on October 21, 1999, the

       State recharged Mitchell with the escape offense, to which he pled guilty on

       November 27, 2000. That same day, the trial court sentenced him to eight

       years’ imprisonment, enhanced by twelve years based on a habitual offender

       adjudication.


[12]   Although the sentencing date with respect to Mitchell’s prior escape conviction

       is incorrect in the State’s habitual offender charging Information, as amended,

       Mitchell did not object. Therefore, as Mitchell failed to preserve this error for

       our review, it is now waived. See, e.g., Jackson v. State, 712 N.E.2d 986, 988

       (Ind. 1999) (the defendant is limited on appeal to the grounds advanced at the

       trial court and cannot raise new grounds for the first time on appeal). We

       conclude that the State’s evidence in Phase II of the bifurcated jury trial was

       sufficient to establish Mitchell’s habitual offender adjudication.


                                               CONCLUSION

[13]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Mitchell’s habitual offender adjudication


[14]   Affirmed.


[15]   Bailey, J. and Barnes, J. concur


       Court of Appeals of Indiana | Memorandum Decision 48A02-1512-CR-2370 | September 21, 2016   Page 5 of 5
