MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Feb 03 2016, 9:54 am

this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Magness,                                          February 3, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1505-CR-322
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         The Honorable Patrick Murphy,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G16-1411-F6-52938



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016     Page 1 of 9
                                             Case Summary
[1]   Steven Magness appeals his status as an habitual offender. We reverse and

      remand.


                                                     Issues
[2]   Magness raises two issues, which we restate as:


                       I.      whether the trial court properly allowed a
                               belated habitual offender allegation filing; and

                       II.     whether the evidence is sufficient to sustain the
                               habitual offender finding.


                                                     Facts
[3]   On November 26, 2014, the State charged Magness with Level 6 felony

      residential entry, Level 6 felony intimidation, Class A misdemeanor theft, and

      Class A misdemeanor battery resulting in bodily injury. On March 24, 2015,

      the State filed an allegation that Magness was an habitual offender, and

      Magness objected to the filing. A jury trial was held on March 25, 2015, and

      the jury found Magness guilty of Level 6 felony residential entry and Class A

      misdemeanor battery resulting in bodily injury. The jury also found that

      Magness was an habitual offender. The trial court sentenced Magness to two

      years in the Department of Correction enhanced by four years for his status as

      an habitual offender. Magness now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 2 of 9
                                                  Analysis
                                  I. Belated Habitual Offender Filing

[4]   Magness challenges the State’s belated habitual offender filing. Indiana Code

      Section 35-34-1-5(e) provides:

              An amendment of an indictment or information to include a
              habitual offender charge under IC 35-50-2-8 must be made at
              least thirty (30) days before the commencement of trial.
              However, upon a showing of good cause, the court may permit
              the filing of a habitual offender charge at any time before the
              commencement of the trial if the amendment does not prejudice
              the substantial rights of the defendant. If the court permits the
              filing of a habitual offender charge less than thirty (30) days
              before the commencement of trial, the court shall grant a
              continuance at the request of the:


              (1) state, for good cause shown; or


              (2) defendant, for any reason.


      The habitual offender charge here was filed one day before trial and was not

      timely.


[5]   Our supreme court has held that “‘once a trial court permits a tardy habitual

      filing, an appellant must move for a continuance in order to preserve the

      propriety of the trial court’s order for appeal.’” Kidd v. State, 738 N.E.2d 1039,

      1042 (Ind. 2000) (quoting Williams v. State, 735 N.E.2d 785, 789 (Ind. 2000)).

      There is no exception to this rule even where a defendant has asked for a speedy

      trial. Id. If the defendant needs additional preparation time, then he or she

      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 3 of 9
      may seek a continuance of the habitual offender phase of the proceedings

      without affecting his rights to a speedy trial on the main charge. Id. Although

      Magness objected to the filing, he did not request a continuance. Because

      Magness did not move for a continuance, this issue is waived for review. 1 See

      id. (holding that the defendant waived his argument regarding the untimely

      filing of an habitual offender allegation where he did not request a

      continuance).


                                        II. Sufficiency of the Evidence

[6]   Next, Magness argues that the evidence is insufficient to sustain the finding that

      he is an habitual offender. When an habitual offender finding is challenged, we

      do not reweigh the evidence but rather look at the evidence in the light most

      favorable to the verdict. White v. State, 963 N.E.2d 511, 518 (Ind. 2012). “If an

      appellate court deems the evidence insufficient, [an] habitual-offender

      determination must be vacated.” Id.


[7]   Under Indiana Code Section 35-50-2-8(a), the State “may seek to have a person

      sentenced as a habitual offender for a felony by alleging, on one (1) or more

      pages separate from the rest of the charging instrument, that the person has

      accumulated the required number of prior unrelated felony convictions in




      1
        We decline Magness’s request to reconsider the requirement for a continuance motion. See, e.g., Horn v.
      Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005) (“It is not this court's role to reconsider or declare
      invalid decisions of our supreme court.”).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016               Page 4 of 9
accordance with this section.” At the time of Magness’s offense, subsection (d)

provided:


         A person convicted of a Level 6 felony[2] is a habitual offender if
         the state proves beyond a reasonable doubt that:


         (1)      the person has been convicted of three (3) prior unrelated
                  felonies; and


         (2)      if the person is alleged to have committed a prior
                  unrelated:


                  (A)      Level 5 felony;


                  (B)      Level 6 felony;


                  (C)      Class C felony; or


                  (D)      Class D felony;


         not more than ten (10) years have elapsed between the time the
         person was released from imprisonment, probation, or parole
         (whichever is latest) and the time the person committed the
         current offense.


Ind. Code § 35-50-2-8(d) (footnote added).




2
 The statute was amended effective July 1, 2015, to substitute “felony offense” for “Level 6 felony.” See
Pub. L. No. 238, 2015, § 17 (eff. July 1, 2015).

Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016            Page 5 of 9
[8]    The habitual offender charging information alleged that Magness had

       previously been convicted of three prior, unrelated felonies and not more than

       ten years had elapsed between the time that he was released from his sentence

       to the instant offense. The three prior, unrelated felonies included a September

       12, 2005 conviction for Class D felony criminal recklessness, a November 29,

       2007 conviction for Class D felony obstruction of justice, and an October 6,

       2009 conviction for Class C felony battery.


[9]    Magness first argues that the prior arrests were not sufficiently linked to him to

       prove that he committed the prior offenses. He points out that Exhibit 6, which

       was the identification card containing Magness’s thumbprint, was not admitted

       into evidence. However, a defendant’s identification “can be independently

       established by fingerprint testimony.” Straub v. State, 567 N.E.2d 87, 93 (Ind.

       1991). Matthew Weisjahn, the fingerprint examiner, testified that he compared

       Magness’s thumbprint to the arrest prints for the prior convictions and that the

       fingerprints on all of the records matched. We conclude there was sufficient

       evidence to show that Magness was the same person convicted in the prior

       offenses.


[10]   Next, Magness argues that the evidence was insufficient to show that the prior

       offenses were unrelated. A person has accumulated two (2) or three (3) prior

       unrelated felony convictions for purposes of Indiana Code Section 35-50-2-8

       only if:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 6 of 9
               (1)      the second prior unrelated felony conviction was
                        committed after commission of and sentencing for the first
                        prior unrelated felony conviction;


               (2)      the offense for which the state seeks to have the person
                        sentenced as a habitual offender was committed after
                        commission of and sentencing for the second prior
                        unrelated felony conviction; and


               (3)      for a conviction requiring proof of three (3) prior unrelated
                        felonies, the third prior unrelated felony conviction was
                        committed after commission of and sentencing for the
                        second prior unrelated felony conviction.


       Ind. Code § 35-50-2-8(f). To be “unrelated,” the commission of the second

       felony must be subsequent to the sentencing for the first, and the sentencing for

       the second felony must have preceded the commission of the current felony for

       which the enhanced sentence is being sought. Warren v. State, 769 N.E.2d 170,

       171 n.2 (Ind. 2002). “Failure to prove the proper sequencing requires that the

       habitual offender determination be vacated.” Id.


[11]   During the habitual offender phase of the trial, the State presented an arrest

       report and the judgment of conviction concerning the criminal recklessness

       conviction. Those documents indicated that the offense was committed on

       January 5, 2004, and that Magness was sentenced on September 12, 2005. The

       State also presented evidence of an arrest report and a judgment of conviction

       concerning the obstruction of justice conviction. Those documents indicated

       that Magness was arrested pursuant to a warrant on October 24, 2007, and that

       he was sentenced on November 29, 2007. None of the documents presented by
       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 7 of 9
       the State, however, indicate the date of the obstruction of justice offense. The

       State then presented an arrest report and a judgment of conviction concerning

       the battery conviction. Those documents indicated that Magness committed

       the offense on March 29, 2009, and that he was sentenced on October 6, 2009.


[12]   Magness properly points out that, because the State failed to present evidence

       concerning the date of the obstruction of justice offense, there was no evidence

       that “the second prior unrelated felony conviction was committed after

       commission of and sentencing for the first prior unrelated felony conviction.”

       I.C. § 35-50-2-8(f). The State, however, argues that the jury could reasonably

       infer that the offense took place after September 12, 2005, because he was not

       arrested until October 24, 2007.


[13]   Although it is certainly possible that the obstruction of justice offense took place

       long after Magness was sentenced for the criminal recklessness offense, the

       State presented no evidence to support such a conclusion. Indeed, the State

       presented no evidence whatsoever concerning the facts and circumstances of the

       obstruction of justice offense. Given the complete lack of evidence in this

       regard, an inference that the offense took place after the sentencing for the

       criminal recklessness offense would be too speculative to constitute proof

       beyond a reasonable doubt. See, e.g., McManomy v. State, 751 N.E.2d 291, 293

       (Ind. Ct. App. 2001) (“Because the State offered no evidence as to the

       commission dates of each felony, it could not have proved the second felony

       was committed after the date of sentencing of the first.”).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 8 of 9
[14]   Likewise, the passage of time between the first and second convictions is

       insufficient to support an inference that they were unrelated for purposes of the

       habitual offender statute. See McCovens v. State, 539 N.E.2d 26, 31 (Ind. 1989)

       (holding that the evidence was insufficient to show the required sequence even

       though the prior felony convictions were separated by nearly twenty years);

       McManomy, 751 N.E.2d at 293 (holding that it would be improper to infer that

       an individual’s prior convictions satisfied the sequence requirements where the

       convictions were two years apart). We conclude that the State presented

       insufficient evidence to support the habitual offender determination. We

       therefore reverse Magness’s habitual offender adjudication and remand with

       instructions to vacate the enhancement imposed. We note, however, that “the

       Double Jeopardy Clause does not prevent the State from re-prosecuting a

       habitual offender enhancement after conviction therefore has been reversed on

       appeal for insufficient evidence.” Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind.

       2005), cert. denied; see also Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012).


                                                 Conclusion
[15]   Magness waived his argument that the habitual offender filing was untimely by

       failing to request a continuance. However, the evidence is insufficient to

       sustain his status as an habitual offender. We reverse and remand.


[16]   Reversed and remanded.


       Robb, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-322 | February 3, 2016   Page 9 of 9
