Glasco v. State

OPINION RATLIFEF, Senior Judge. STATEMENT OF THE CASE The State of Indiana appeals from the granting of Cilaseo's Petition for Post Conviction Relief and the denial of his Motion to Correct Errors. We reverse and remand with instructions. THE ISSUE The sole issue we need to be decided in this case is whether or not the decision of our supreme court in Ross v. State, 729 N.E.2d 113, (Ind.2000) has retroactive effect. We hold that it does not. FACTS On July 6, 1999, pursuant to a plea agreement, Glasco pleaded guilty to carrying a handgun without a license, enhanced to a Class C felony by reason of a prior conviction, and to being an habitual offender as charged in Count II of the information filed against him. On that same date, the trial court sentenced Glaseo to two years on the handgun conviction, which was enhanced by four years by reason of the habitual offender plea. Such sentencing was in accordance with the terms of the plea agreement that called for a total six-year sentence. The habitual offender count was predicated upon the same prior convictions as those requiring the elevation the handgun charge from a Class A misdemeanor to a Class C felony. Glaseo did not appeal his sentence. On May 25, 2000, nearly eleven months after Hlaseo's plea and sentencing, our supreme court decided Ross, a factually similar case, holding that where the defendant's sentence for carrying a handgun without a license was enhanced from a Class A misdemeanor to a Class C felony because of prior convictions, his sentence [975] could not be enhanced further as an habitual offender based upon the same prior convictions. On May 24, 2001, Glaseo filed a petition for post-conviction relief alleging that he had been subjected to a double enhancement as prohibited by Ross. The trial court agreed with Cilaseo, and on the basis of Ross, granted the petition for post-conviction relief finding that the habitual offender adjudication was improper and vacating it thereby reducing (Glaseo's sentence to two years. In response to the State's motion to correct error, the trial court confirmed that the habitual offender adjudication was proper; however, the court increased the sentence on the handgun conviction to six years. Glaseco now appeals. DISCUSSION AND DECISION Standard of Review When the State appeals from the granting of a petition for post-conviction relief, it is not appealing from a negative judgment. State v. Holmes, 728 N.E.2d 164, 168, (Ind.2000), cert. denied, 582 U.S. 1067, 121 S.Ct. 2220, 150 L.Ed.2d 212 (2001). The standard of review is whether the judgment is clearly erroneous. Because there are no issues of fact involved, and we are faced solely with the question of whether the trial court properly applied the law, and we do not defer to the trial court's judgment as with respect to factual findings. Id. at 169. Retroactivity of Ross Whether or not a decision has retroactive effect generally depends upon whether it announces a new rule of criminal procedure or was dictated by existing precedent. Jacobs v. State, 799 N.E.2d 1161 (Ind.Ct.App.2008). In Jacobs, a case with a strikingly similar factual seenario, a panel of this court held that Ross did not apply retroactively. The court there said that a decision announcing a new rule of criminal procedure generally is not applicable to cases on collateral review, meaning those which have become final before the new rule was announced. A conviction and sentence become final in that regard when the availability of direct appeal has been exhausted. Id. at 1165. The Jacobs court further held that no exceptions to that rule applied to Jacobs. Id. at 1167. Here, Glaseo's conviction and sentence were final almost a year prior to the decision in Ross. We agree with the decision in Jacobs, and we hold that Ross does not apply retroactively to Glaseo's case and that the trial court judgment granting his petition for post-conviction relief was clearly erroneous. Therefore, we reverse the judgment of the trial court and remand to that court to vacate the granting of the post-conviction petition and change of Glaseo's sentence. Furthermore, we order the trial court to reinstate the original sentence.1 KIRSCH, J., concurs. SULLIVAN, J., dissents with separate opinion. Footnotes [1] Because of our decision, we need not address Glasco's contention that the trial court should have set aside his entire plea.