ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Karen Freeman-Wilson
Lawrenceburg, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
LLOYD FLINT, ) Supreme Court No.
Defendant-Appellant, ) 58S01-0106-CR-302
)
v. )
) Court of Appeals No.
STATE OF INDIANA, ) 58A01-0007-CR-228
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE OHIO SUPERIOR COURT
The Honorable John D. Mitchell, Judge
Cause No. 58D01-9907-CF-065
________________________________________________
On Petition to Transfer
June 27, 2001
DICKSON, Justice
The defendant, Lloyd Flint, was convicted of criminal recklessness
with a deadly weapon as a class D felony,[1] attempted battery with a
deadly weapon as a class C felony,[2] and found to be a habitual
offender.[3] In a memorandum decision, the Court of Appeals found that it
was error to convict the defendant for both offenses based on the same
evidence, but rejected the defendant's other appellate claims. Seeking
further review, the defendant petitions for transfer, asserting that the
Court of Appeals erroneously determined that his habitual offender finding
was based on sufficient evidence. We now grant transfer.
To establish that the defendant is a habitual offender, the State
must prove beyond a reasonable doubt that the defendant has been previously
convicted of two separate and unrelated felonies. Ind.Code § 35-50-2-8.
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. Toney v. State, 715 N.E.2d 367, 369
(Ind. 1999). Failure to prove the proper sequencing requires that the
habitual offender determination be vacated. Henderson v. State, 534 N.E.2d
1105, 1109 (Ind. 1989). In addressing the issue of sufficiency of
evidence, we will affirm the conviction if, considering only the probative
evidence and reasonable inferences supporting the verdict, without weighing
evidence or assessing witness credibility, a reasonable trier of fact could
conclude that the defendant was convicted of two previous separate and
unrelated felonies beyond a reasonable doubt. Id.
Here, the evidence did not establish the commission date of the
second felony. The State presented evidence that on December 20, 1972, the
defendant was convicted and sentenced for an August 31, 1972, forgery, and
that on February 16, 1977, he was convicted in Ohio for a murder for which
he was arrested in June, 1974.[4] The evidence does not provide any fact
or reasonable inference to establish that the murder was committed after
the defendant was sentenced for his forgery conviction.
Transfer is granted, and we hold that the evidence was insufficient
to support the habitual offender finding. As to all other issues, the
Court of Appeals is summarily affirmed. Ind.Appellate Rule 58(A)(2).[5]
This cause is therefore remanded to the trial court to vacate Flint's
conviction and sentence for criminal recklessness with a deadly weapon, to
vacate the habitual offender enhancement, and to resentence the defendant
on his conviction for attempted battery with a deadly weapon.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-2-1.
[2] Ind.Code § 35-42-2-2.
[3] Ind.Code § 35-50-2-8.
[4] The State initially proffered exhibit L, purported to be a copy of
the Ohio indictment on the murder charge that alleged the date of the
murder, but following a defense objection based on improper foundation and
a colloquy between counsel and the trial court, the exhibit was not
received into evidence. Record at 615; Supp. Record at 3-5.
[5] Formerly Ind.Appellate Rule 11(B)(3). Because the petition to
transfer was filed after January 1, 2001, the new rule applies. Order
Amending Indiana Rules of Appellate Procedure, found in volume 722-724 of
Ind. Cases ed. of N.E.2d at XXXII, XCIII (2000).