dissenting. •
Aside from any question of comity, although it would seem that this question should never just be brushed aside in a habeas case, the majority opinion on the facts of this case simply has found a meritorious case for habeas relief with which conclusion I cannot agree. I therefore respectfully dissent.
The majority opinion recognized and agrees with the general proposition that a federal court must defer to a state court’s interpretation of its own statute, however, holds here that the Indiana Supreme Court did not interpret the statute but merely found the evidence was sufficient to support the jury’s findings. In saying that the evidence was sufficient to prove that Williams had accumulated two prior unrelated felony convictions on its review of that evidence, the Indiana Supreme Court may not have been directly interpreting its own *834statute but implicitly was doing so by saying that that statute as applied to the facts of the case before it had been sufficient to prove guilt beyond a reasonable doubt. It appears to me that the Supreme Court’s analysis, contrary to that of the majority opinion which focused only on the lack of a direct showing of sentencing, placed the gist of the statutory offense on there being two convictions pursuant to the. plain language of the Indiana statute.
The relevant portion of the statute in effect at the time of the trial read as follows:
35-50-2-8 Habitual offenders
Sec. 8(a) The state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions. A person who is found to be an habitual offender shall be imprisoned for an additional fixed term of thirty (30) years, to be added to the fixed term of imprisonment imposed under section 3, 4, 5, 6, or 7 of this chapter.
(b) After he has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, a person has accumulated two. (2) prior unrelated felony convictions. However, a conviction does not count, for purposes of this subsection, if:
(1) it has been set aside; or
(2) it is one for which the person has been pardoned.
(c) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-4.1-4.3.
(d) The jury (if the hearing is by jury), or the court (if the hearing is to the court alone), may find that the person is an habitual offender only if the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated felony convictions.
A careful reading of this statute reflects that eligibility for conviction of being an habitual offender comes about by being convicted of two prior unrelated felonies with the only proviso that neither conviction has been set aside or has resulted in a pardon. Indeed, the majority opinion concedes that the sentencing is only implied in the description of the prior unrelated felonies. The sentencing is only in the statute in the indirect sense of timing as to when the judgment of convictions have become final. Here, however, there was no question that the convictions in both cases were final judgments and that the causes had been completed. The trial judge so testified. Williams v. State, 424 N.E.2d 1017, 1019 (Ind.1981). Even if we assume, however, that there must be some direct evidence of sentencing on both convictions, and there is no controversy about the first conviction in 1971, it appears to me that this court should not challenge the holding of the Indiana Supreme Court that there was sufficient evidence on the sentencing for the second conviction also. I turn to the record in that respect and in so doing I accept and adopt the standard as laid down, and as approved by the majority opinion in this case, Twyman v. State, 431 N.E.2d 778 (Ind.1982), in which the Indiana Supreme Court stated that:
[i]n reviewing claims of insufficient evidence, this Court does not weigh the evidence or resolve questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that a defendant was guilty beyond a reasonable doubt [of being an habitual offender], we will affirm the conviction. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657, Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890.
Id. at 778 (emphasis added). I have quoted from Twyman as it appears in the majority opinion with the exception of the emphasis *835on reasonable inferences which the majority seems to ignore as existing in this case.
' The majority opinion declines to give any significance to Williams’ own statement that he had served time, although, of course, as the majority concedes, it is not important that he actually had served time only that he be given a sentence. Nevertheless, the fact that he served time is indicative of the fact that there was a sentence.
A careful reading of his testimony seems to me to provide full support for a reasonable inference that the serving of time to which he referred related to both prior convictions, being the ones here involved. Williams, at the very beginning of his direct testimony, after he gave his name and address testified as follows:
Q. Is it true, Mr. Williams, that you have been in some trouble before?
A. Yes, it is.
Q. Do you remember exactly which case was which?
A. No, not exactly.
Q. Did — but you have been in some serious trouble before, is that correct? A. Yes, I have served time.
Q. Is there anything specific to which you attribute the fact that you have been in serious trouble before?
A. Mainly heroin addiction, of which I have since been cured. But at the present time, yes. Both the offenses did happen while I was addicted. [Emphasis added.]
It seems to me that the jury correctly concluded, as did the Indiana Supreme Court, from this testimony that Williams himself was referring to “time” for “[b]oth the offenses.”
Also, before the jury as an exhibit was the certified copy of court records relating to the 1975 conviction, the final lines of which read as follows:
Said defendant had a prior pre-sentence investigation report, and now dispenses with such investigation herein at his request.
Sentence is now set for October 6, 1975, at 1:30 P.M.
Sentencing was set for October 6, 1975 and as the Supreme Court pointed out the trial judge had “testified that these causes had been completed and there was no claim that these were not final judgments.” 424 N.E.2d at 1019. I fail to see how there could have been a final judgment without sentencing.
These two instances by themselves provide the reasonable inferences to prove beyond a reasonable doubt that Williams indeed was sentenced for the 1975 conviction, which proof, in any event, related only to demonstrating for the timing purposes of the statute the finality of the judgment of the second conviction. The existence of the second conviction, of course, is undisputed.
No one really contends in this case that Williams was not sentenced in 1975 and apparently a direct question to that effect to his 1975 trial attorney, for some reason, was not asked. The’ prosecutor by asking the simple question would have obviated the problem presented by this case. Because the inferences, however, clearly supported what was undoubtedly the fact, this court has elevated form over substance in granting the writ of habeas corpus. The sentence for being an habitual offender, notwithstanding the various remedial provisions which are capable of substantially shortening periods of confinement, is a severe one, and there should not be sentencing as an habitual offender unless the crime is proven beyond a reasonable doubt. On the other hand, there is no question that Williams was convicted of three felonies within the span of a decade.
The legislative judgment as to the term of the sentence is not an issue before us. Our only concern is whether Williams was denied constitutional due process. The highest court of the state held that he was not convicted improperly under the statute. I agree with that decision.