FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER GREGORY F. ZOELLER
Clark County Chief Public Defender Attorney General of Indiana
Jeffersonville, Indiana 47130
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
December 18 2013, 6:51 am
GEORGE A. NUNLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 10A04-1212-CR-630
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel E. Moore, Judge
Cause No. 10C01-1005-FC-082
December 18, 2013
OPINION ON REHEARING- FOR PUBLICATION
ROBB, Chief Judge
The State has petitioned this court for rehearing of our decision dated October 2, 2013.
In our opinion we held, in relevant part, that the trial court erred in allowing the State to
amend the habitual offender allegation after the jury was empaneled. Nunley v. State, 995
N.E.2d 718, 726 (Ind. Ct. App. 2013). We concluded that the amendment was made after the
commencement of trial and that it prejudiced Nunley’s substantial rights and therefore was
not allowed under any subsection of Indiana Code section 35-34-1-5, which deals with
amendments to an information. Accordingly, we reversed the habitual offender enhancement
to Nunley’s sentence. Id. at 725. We write now to clarify our decision, and we affirm our
opinion in all respects.
The State argues that the proper remedy for a late-filed amendment would have been
for us to remand to the trial court for proceedings on an habitual offender sentence
enhancement, rather than the reversal that we ordered. For this contention, the State cites to
Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005), cert. denied, 546 U.S. 1030 (2005). In
Jaramillo, our supreme court held 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.” Id. at 1191. The holding in Jaramillo
was itself based on a similar holding by the United States Supreme Court. Monge v.
California, 524 U.S. 721, 734 (1998) (holding that the double jeopardy clause does not apply
to noncapital sentencing proceedings; the case involved a “three-strikes” sentencing
enhancement where the State had failed to provide sufficient evidence to prove one of the
predicate offenses).
2
The difference between these cases and Nunley’s is that those enhancements were
overturned for insufficient evidence, whereas here, the State failed to timely and properly
allege the habitual offender status. While Monge’s holding was somewhat broad regarding
noncapital sentencing proceedings, it did not address the issue on point here, nor did
Jaramillo.
We find no cases in which we or our supreme court has determined that an habitual
offender allegation was wrongly amended under Indiana Code section 35-34-1-5 and then
remanded for further proceedings on the allegation rather than reversing. The closest match
is White v. State, 963 N.E.2d 511, 518 (Ind. 2012), in which our supreme court addressed a
belated habitual offender allegation amendment but concluded that because the defendant did
not object to the amendment or request a continuance, the issue was waived on appeal; the
court then addressed the sufficiency of the evidence supporting the allegation.
Our concern with extending Jaramillo to our current case is that it would conflict with
the language and purpose of Indiana Code section 35-34-1-5. The issue in this case regards
the timing of an amendment to an allegation rather than the evidence supporting that
allegation. Thus, this case is distinct from Jaramillo. Therefore, even if remanding for
further proceedings on the habitual offender allegation would not violate federal double
jeopardy under Monge, we believe it would be contrary to the relevant state statute. 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
3
35-4-1-5 and its timing requirements would be rendered pointless. We therefore affirm our
original decision to reverse, and affirm that opinion in all respects.
KIRSCH, J., concurs.
RILEY, J., would deny the Petition for Rehearing.
4
George A. Nunley v. State of Indiana
Combined Opinion