Robert Wayne Dilden III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 22 2020, 10:47 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Wayne Dilden III, July 22, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-111 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff Judge Trial Court Cause No. 79D01-1901-F2-5

May, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020 Page 1 of 7 [1] Robert Wayne Dilden III appeals his adjudication as a habitual offender. 1

Dilden argues the State did not present sufficient evidence to support the

adjudication because the State did not provide certified copies to prove his prior

convictions, and Dilden asks that we vacate his adjudication without

remanding for a new trial on the issue. The State concedes the evidence was

insufficient and asks that we remand for a new trial on the habitual offender

adjudication. We reverse Dilden’s adjudication and remand for a new trial to

determine whether Dilden is a habitual offender.

Facts and Procedural History [2] The facts here are undisputed. On January 25, 2019, the State charged Dilden

with Level 2 felony dealing in methamphetamine 2 and Level 3 felony

possession of methamphetamine. 3 The State also alleged Dilden was a habitual

offender. On November 19, 2019, the State amended the charging information

to reduce the Level 3 felony possession charge to Level 4 felony possession of

methamphetamine 4 and added a charge of Level 6 felony possession of a

narcotic drug. 5

1 Ind. Code § 35-50-2-8(b). 2 Ind. Code § 35-48-4-1.1(e). 3 Ind. Code § 35-48-4-6.1(d). 4 Ind. Code § 35-48-4-6.1(c). 5 Ind. Code § 35-48-4-6(a).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-111 | July 22, 2020 Page 2 of 7 [3] On December 3-4, 2019, the trial court held a jury trial, and the jury returned

guilty verdicts for all three felony charges. In the second phase of the trial, the

jury was asked to decide whether Dilden was a habitual offender. In the

charging information, the State alleged Dilden was a habitual offender because

he had “accumulated at least two (2) prior unrelated felony convictions, and at

least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D

felony[.]” (App. Vol. II at 130.) At trial, the State attempted to admit Exhibit

17, which was a certified copy of Dilden’s conviction of Class C felony

operating a motor vehicle while his driving privileges were forfeited for life.

Dilden objected, arguing the State had not laid a proper foundation and the

State had not provided Dilden with copies of the documents as part of

discovery. The trial court sustained Dilden’s objection, telling the State, “but

you still have your witness.” (Tr. Vol. II at 124.) [4] The State then presented testimony from Christopher Brophy, who had

supervised Dilden while he was on probation for the Class C felony conviction.

Brophy testified he was aware that Dilden’s criminal history included a

conviction for “operating a vehicle as a habitual traffic violator” and Class D

felony theft. (Id. at 129.) Based thereon, the jury found Dilden to be a habitual

offender and the trial court adjudicated him as such. After a sentencing

hearing, the trial court sentenced Dilden to eighteen years for dealing in

methamphetamine and one year for possession of methamphetamine, to be

served consecutive to each other. The trial court then enhanced Dilden’s

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sentence by six years based on his habitual offender adjudication, for an

aggregate sentence of twenty-five years.

Discussion and Decision [5] When presenting evidence to prove a habitual offender adjudication, the State

must provide certified records of the prior convictions, “in the absence of a

showing of the unavailability of the proper certified records.” Morgan v. State,

440 N.E.2d 1087, 1090 (Ind. 1982). Parol evidence, such as testimony from a

party with knowledge of the records’ existence or the defendant’s criminal

history, by itself is insufficient. Davis v. State, 493 N.E.2d 167, 168 (Ind. 1986).

The State concedes it did not prove Dilden was a habitual offender because it

did not present sufficient evidence of his past convictions. [6] At issue is whether we should vacate Dilden’s habitual offender adjudication or

remand for Dilden to be retried as to the habitual offender charge. Dilden

argues we should vacate his habitual offender adjudication and not allow the

State to retry him. Dilden relies on Nunley v. State, 995 N.E.2d 718 (Ind. Ct.

App. 2013), clarified on reh’g 4 N.E.3d 669 (Ind. Ct. App. 2013), trans. denied, in

which a panel of our court vacated Nunley’s habitual offender adjudication and

did not remand for retrial. In Nunley, the State failed to allege Nunley was a

habitual offender within the time limit required by Indiana Code section 35-34-

1-5 for an amendment to the charging information. Thus, our Court reasoned

on rehearing:

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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 35-34-1-5 and its timing requirements would be rendered pointless.

Id. at 670. 6 Nunley is inapposite, because the issue in Nunley was not the

sufficiency of the evidence to prove Nunley was a habitual offender, it was the

fact that Nunley had not been given sufficient notice that the State was pursuing

a habitual offender allegation against him. [7] Instead, we rely on Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012), which has

facts almost identical to those before us. In Dexter, the State did not provide

certified documentary evidence of one of Dexter’s prior convictions to support

his adjudication as a habitual offender. Id. at 237. Our Indiana Supreme Court

held such evidence was insufficient to prove Dexter was a habitual offender:

For almost 30 years, this Court has held that the State must introduce into evidence proper certified and authenticated records of the defendant’s prior felony convictions in order to prove beyond a reasonable doubt the existence of those prior

6 Dilden also argues that, since the State did not comply with the trial court’s discovery order and attempted to admit evidence that the defense had not yet seen, we should not remand because doing so “would undermine the trial court’s inherent authority to control trial proceedings and, where appropriate, to issue reasonable sanctions.” (Br. of Appellant at 11.) To support his argument, Dilden cites Allied Prop. & Cas. Ins. v. Good, 919 N.E.2d 144 (Ind. Ct. App. 2009), reh’g denied, trans. denied, in which a panel of our court held sanctions were appropriate when Allied violated a motion in limine, which prompted a mistrial. Id. at 156. Dilden does not indicate how the facts in Allied are aligned with the facts here. While we agree that the State should be more careful to ensure that the defense is given all documents required through discovery, Dexter v. State, 959 N.E.2d 235 (Ind. 2012), dictates the appropriate remedy here, which as we explain further herein is remand for a new trial on the State’s allegation that Dilden is a habitual offender.

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convictions. In the absence of a showing by the State that such records are unavailable, parol evidence alone is not sufficient to prove the fact of prior convictions. Even though additional supporting evidence is required to prove the identity of the defendant and may be required to prove the proper sequence of the felony convictions, proper[ly] certified and authenticated documentary evidence is required to establish that the prior convictions in fact occurred.

Id. at 238 (internal citations omitted). [8] Our Indiana Supreme Court then moved to Dexter’s argument that “the State

may not seek to have him sentenced as a habitual offender because it presented

insufficient evidence the first time around.” Id. at 240. The Court disagreed,

concluding Double Jeopardy did not prohibit the State from retrying Dexter for

the habitual offender enhancement:

[R]etrial on a sentencing enhancement based on a prior conviction is permitted even where the enhancement is reversed because of insufficient evidence. See Monge v. California, 524 U.S. 721, 727-34, 118 S. Ct. 2246, 141 L.Ed.2d 615 (1998); Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind. 2005), cert. denied, 546 U.S. 1030, 126 S. Ct. 730, 163 L.Ed.2d 568 (2005). In Jaramillo, we acknowledged that Justice Scalia’s dissent in Monge foreshadowed the Supreme Court’s watershed decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), yet we rejected the defendant’s argument that Apprendi implicitly overruled Monge. Jaramillo, 823 N.E.2d at 1189-90. In Apprendi, the Court discussed Monge without suggesting that it was no longer good law, id. at 1189 (citing Apprendi, 530 U.S. at 488 n.14, 120 S. Ct. 2348), and, since Apprendi, the Court has cited Monge for the principle “that the ‘Double Jeopardy Clause does not preclude retrial on a prior

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conviction used to support recidivist enhancement,’” id. (quoting Dretke v. Haley, 541 U.S. 386, 395, 124 S. Ct. 1847, 158 L.Ed.2d 659 (2004)). We see no reason to revisit our holding in Jaramillo at this time.

Id. [9] The facts here are virtually identical. The State concedes it did not present

sufficient documentary evidence of Dilden’s prior convictions. Thus, based on

the holding in Dexter, the State may retry Dilden regarding whether the habitual

offender enhancement should apply to him.

Conclusion [10] The State concedes it did not present sufficient evidence that Dilden was a

habitual offender and therefore we vacate Dilden’s habitual offender

adjudication. However, the State may retry Dilden as a habitual offender and

thus we remand. Should the trial court adjudicate Dilden as a habitual

offender, we remind the court to explicitly state which conviction’s sentence is

being enhanced. [11] Reversed and remanded.

Robb, J., and Vaidik, J., concur.

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