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MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION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
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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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