recognizing differing burdens of proof on direct appeal and in post-conviction relief proceedings as upheld against due process challenge
How later courts described this case
- recognizing differing burdens of proof on direct appeal and in post-conviction relief proceedings as upheld against due process challenge
- recognizing shift in burden of proving error from State in direct appeal to defendant in post-conviction appeal
- at post-conviction proceedings, burden was on petitioner to show that required sequence of prior unrelated felonies did not in fact exist
- where post-conviction petitioner challenges the sufficiency of evidence supporting his habitual offender adjudication, he must demonstrate that he was not an habitual offender under the laws of the state
Written by the judges who cited it.
Later courts went against this
Criticized on other grounds by Seay v. State, 1998 Ind. LEXIS 96 (1998)
619 N.E.2d 915, 917 (Ind.1993), criticized on other grounds by Seay v. State, 698 N.E.2d 732, 737 n. 8 (Ind.1998).
The opinion
DeBRULER, Justice,
dissenting.
The claim that the evidence of guilt was insufficient to convict is available to the petitioner in a post-conviction proceeding under Ind. Post-Conviction Rule 1(a)(1). Dodson v. State (1987), Ind., 502 N.E.2d 1333 , McKinley v. State (1969), 253 Ind. 187 , 252 N.E.2d 420 , Green v. State (1988), Ind.App., 525 N.E.2d 1260 . It is likewise available in federal habeas corpus. 28 U.S.C. § 2254 (d)(8) (1977). Appellant's claim that the evidence of his habitual offender status was insufficient should receive the same treatment as a claim that the evidence of guilt was insufficient. Because the majority holds otherwise, I dissent.
The commands of past and present habitual offender statutes are exceptional in their severity. In recognition of this severity the legislature requires habitual offender status to be pleaded like an outright criminal charge, that proof be made beyond a reasonable doubt, and that the right to trial by jury be afforded. 1.0. § 85-50-2-8. The policy gives the accused the same protection from misuse of the trial process of determining habitual offender status that are afforded in the trial process of determining guilt. It even sanctions exercise of the jury nullification power. Ind. Const. art. I, § 19; Clark v. State (1990), Ind., 561 N.E.2d 759 .
At the direct appeal level, the burden is upon the defendant when challenging the sufficiency of evidence to convict as well as when challenging the sufficiency of evi-derice of habitual offender status. The appellate standard for judging the sufficiency of the evidence is in each instance the same. Either appellate claim will be sustained if the record discloses insufficient proof. The defendant who appeals either matter need not show factual innocence to succeed.
According to the view expressed in the majority opinion, these same two sufficiency of evidence claims will not be treated the same when reaching the post-conviction level. The post-conviction petitioner challenging the sufficiency of evidence of guilt must show that the evidence in the record supporting the determination of guilt lacked that probative value that would warrant a reasonable trier of fact to infer guilt beyond a reasonable doubt. Such a petitioner need not show innocence. However, the majority holds that the post-conviction petitioner challenging the sufficiency of evidence of habitual offender status must show that he is innocent of the charge of that status. As a general proposition, I find no convincing reason for this departure from the policy of equality of protection when the challenge to the evidence of habitual offender status reaches the post conviction level.
In the present claim there gre grounds to grant post-conviction relief, despite the sufficient proof of the 1960 and 1965 convictions. The verdict is a general one. The probability is very high that the jury chose to reject the 1960 conviction, then improperly deduced the commission date of the federal crime without a sufficient eviden-tiary basis, and then relied upon the 1975 conviction for that crime in conjunction with the 1965 conviction in determining habitual status in 1978. As Judge Robertson pointed out, appellant's 1960 conviction for accessory to second degree burglary occurred when appellant was sixteen. It was remote, of only moderate seriousness, and committed in youth. Clearly, the 1975 federal conviction without proof of commission date could not serve as the basis for an enhanced sentence. Steelman v. State (1985), Ind., 486 N.E.2d 523 . Even if the *919 jury had not totally depreciated the 1960 conviction, the state has surely benefitted from alleging the third federal conviction, maintaining it throughout, and then negligently failing to make sufficient proof of it. I would reverse the judgment of the trial court. Since the evidence as a whole would be sufficient, I would remand with instructions to grant a new habitual offender sentencing hearing. Lockhart v. Nelson, 488 U.S. 33 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988).