ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steve Carter Susan K. Carpenter
Attorney General of Indiana Public Defender of Indiana
Christopher L. Lafuse Anne-Marie Alward
Deputy Attorney General Deputy Public Defender
Indianapolis, Indiana Indianapolis, Indiana
In the
Indiana Supreme Court
_________________________________
No. 48S02-0510-PC-472
STATE OF INDIANA,
Appellant (Respondent below),
v.
DAVID LEON JONES,
Appellee (Petitioner below).
_________________________________
Appeal from the Madison Superior Court, No. 48D03-9903-CF-55
The Honorable Thomas Newman, Jr., Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 48A02-0308-PC-723
_________________________________
October 13, 2005
Shepard, Chief Justice.
Petitioner David Leon Jones challenges a habitual offender enhancement based upon a
handgun charge that was enhanced to a felony in the same proceeding. According to our
decision in Ross v. State, 729 N.E.2d 113 (Ind. 2000), the habitual enhancement cannot be used
for this purpose. We remand to the trial court to consider whether the habitual may be
“repositioned” to one of the other felonies that petitioner was convicted of in the same
proceeding.
1
Facts and Procedural History
On March 11, 1999 a police officer stopped petitioner David Jones after observing him
stagger down the street and dispose of a bottle in a nearby yard. During the stop, Jones
repeatedly placed his hands on his back, an action that prompted the officer to frisk him. During
the pat down, the officer discovered a handgun, and as he attempted to remove it, a struggle
ensued. Jones was able to flee, and entered a private residence where he remained until he was
coaxed out and arrested.
A jury found Jones guilty of battery and carrying a handgun without a license, class A
misdemeanors, and resisting law enforcement and residential entry, class D felonies. Jones then
pled guilty to a charge that he had a prior felony conviction, thus elevating the handgun charge to
a felony; he also pled to a habitual offender allegation.
The trial court sentenced Jones to an eight-year term for the handgun possession and
added twelve years for the habitual offender enhancement. It ran the remaining sentences
concurrent to the handgun sentence. Jones appealed his conviction, and the Court of Appeals
affirmed. Jones v State, No. 48A05-9910-CR-453 (Ind. Ct. App. May 3, 2000).
On May 25, 2000, twenty-two days after that decision by the Court of Appeals, we
decided Ross v. State, 729 N.E.2d 113, 116-17 (Ind. 2000). It held that the general habitual
offender statute could not be used to enhance a sentence for handgun possession already
enhanced from a misdemeanor to a felony. In July 2000, Jones filed a pro-se petition for post-
conviction relief, later amended to include a request for relief under Ross. The court granted
Jones’ petition.
The State appealed, and the Court of Appeals reversed, concluding in part that the
habitual offender enhancement was proper. State v. Jones, 805 N.E.2d 469, 474-75 (Ind. Ct.
2
App. 2004). We grant transfer to address the application of Ross. We otherwise summarily
affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A).
Did Jones Forfeit the Claim?
We hold today that Ross is to be applied retroactively on collateral review to those cases
final at the time of its announcement. Jacobs v. State, __ N.E.2d __, __ (Ind. 2005). The only
question that remains is whether Jones’ failure to amend his appellate brief, petition for
rehearing, or seek transfer to this Court following our decision in Ross, which occurred within
thirty days of the Court of Appeals denial of his original direct appeal, constitutes waiver of that
issue on collateral review. The State argues that by pleading guilty to the sentencing
enhancements, Jones effectively “gave up his right to appeal those convictions” and his right to
the retroactive application of Ross.
The purpose of post-conviction relief proceedings is to afford petitioners a forum in
which “to raise issues unknown or unavailable to a defendant at the time of the original trial and
appeal.” Williams v. State, 748 N.E.2d 887, 890 (Ind. Ct. App. 2001). Surely, at the time of his
trial and initial appeal, Jones could not have known about, nor had available to him, a case not
yet decided. Moreover, as the Indiana Rules of Procedure for Post-Conviction Remedies make
clear, post-conviction relief encompasses provisions anticipating future changes in
circumstances. See Ind. Post-Conviction Rule 1 §(1). Consequently, we cannot conclude, as the
State argues, that a voluntary guilty plea automatically precludes relief in a post-conviction
setting when there has been a change in the substantive law.
As for whether Jones waived any claim by failing to plead a new issue through rehearing
or transfer, we observe that the issues in an appeal are typically fixed by the briefs tendered to
the Court of Appeals. Moreover, as the leading treatise in the field correctly observes, a petition
for rehearing in the Court of Appeals must rely on the same theory as that advanced in the
original brief. George T. Patton, Indiana Practice: Appellate Procedure §12.1 (3d ed. 2001).
Insisting that Jones’ lawyer on direct appeal find some heroic way to plead an authority decided
3
after the Court of Appeals had decided his case asks too much. We decline to find waiver. That
is the extent of the good news for Jones.
The bad news for Jones is that the State is not precluded from seeking to re-sentence him
under the habitual offender statute, inasmuch as the trial court was entering sentences on more
than one felony. In similar cases, the repositioning of the general habitual finding to one of
several felonies convictions within the same proceeding is authorized. Greer v. State, 680
N.E.2d 526, 527-28 (Ind. 1997)(repositioning habitual offender enhancement to another felony
when originally enhanced felony is vacated); Tipton v. State, 765 N.E.2d 187, 190 (Ind. Ct. App.
2002) trans. denied (upholding repositioning of habitual offender enhancement when originally
enhanced felony is vacated and re-entered as a lesser felony by post-conviction court). As we
noted in Greer,
a habitual offender finding is merely a jury's determination that, following a
defendant's conviction for one or more felonies, the defendant has, in addition,
accumulated two prior unrelated felony convictions. In the case of a habitual
offender proceeding following multiple convictions, the jury finding of habitual
offender status is not linked to any particular conviction. . . . [Thus,] a habitual
offender status following a trial resulting in multiple felony convictions is
independent of each particular felony conviction and applies equally to all such
convictions.
680 N.E. 2d at 527 (internal citations omitted).
Consequently, the State could seek to reposition the general habitual offender finding to
any one of the other felony convictions Jones received as a result of the prosecution for the
March 1999 incident.
Conclusion
We thus affirm the post-conviction court’s vacation of the general habitual offender
sentence, but authorize the State to seek re-sentencing on its election.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
4