excusing petitioner’s failure to raise sufficiency claim on direct review because “[w]here the record of the habitual offender proceeding clearly shows inadequate proof with regard to the chronological sequence of the underlying felonies [Indiana courts] consider such error to be fundamental”
How later courts described this case
- excusing petitioner’s failure to raise sufficiency claim on direct review because “[w]here the record of the habitual offender proceeding clearly shows inadequate proof with regard to the chronological sequence of the underlying felonies [Indiana courts] consider such error to be fundamental”
- “Where the record of the habitual offender proceeding clearly shows inadequate proof with regard to the chronological sequence of the underlying felonies, however, we consider such error to be fundamental.”
- reversing an habitual offender determination where “the prior convictions clearly did not occur within the requisite statutory sequence”
- Levy won new sentencing
Written by the judges who cited it.
The opinion
PIVARNIK, J.,
concurs except in the finding by the majority that a new death penalty hearing is required. He would affirm the trial court on this issue. Even though the word “should” was improper, the trial court was capable of weighing all factors and he imposed the sentence.