Shelley Johnson v. State of Indiana , 835 N.E.2d 492 ( 2005 )

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Richard Denning Nicole M. Schuster
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In the
Indiana Supreme Court
_________________________________
No. 49S05-0510-PC-470
SHELLEY JOHNSON,
Appellant (Petitioner below),
v.
STATE OF INDIANA,
Appellee (Respondent below).
_________________________________
Appeal from the Marion Superior Court, No. 49G01-9801-PC-9721
The Honorable Tanya Walton Pratt, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0303-PC-101
_________________________________
October 13, 2005
Shepard, Chief Justice.
Shelley Johnson appeals the denial of his petition for post-conviction relief. We address
only a single issue, whether Johnson was entitled to the retroactive benefit of our decision in
Ross v. State, 729 N.E.2d 113 (Ind. 2000). As we hold today in Jacobs v. State, __ N.E.2d __
(Ind. 2005), as a change in substantive law, Ross is to be applied retroactively on collateral
review. We thus reverse the post-conviction court.
Facts and Procedural History
In January 1998, the State charged Shelley Johnson with carrying a handgun without a
license as a class A misdemeanor, resisting arrest, and possession of a controlled substance. The
charges stemmed from an incident that occurred on November 21, 1997. The State later sought
to enhance the handgun charge to a class C felony citing Johnson’s earlier conviction for
robbery. In March 1998, the State sought further enhancement under the general habitual
offender statute, section 35-50-2-8 of the Indiana Code.
In September 1998, a jury found Johnson guilty of the misdemeanor handgun charge,
resisting arrest, and possession of a controlled substance. Johnson then stipulated to the
enhancement of the handgun offense to a class C felony, and to the general habitual offender
enhancement. The trial court imposed a sentence of six years for the class C handgun
conviction, one year concurrent for possession, and one year for resisting, served consecutively.
It added eight years to the handgun conviction by virtue of the habitual offender finding. It
ordered the sentence in this case to run consecutively to a sentence in another criminal matter.
On direct appeal, Johnson challenged his conviction. The Court of Appeals affirmed.
Johnson v. State, 49A02-9811-CR-920 (Ind. Ct. App. Nov. 16, 1999).
In May 2000, we announced our decision in Ross v. State, 729 N.E.2d 113, 116-17 (Ind.
2000), which held that a misdemeanor handgun charge enhanced to a felony could not be further
enhanced by using the general habitual offender statute. In June 2000, Johnson filed a petition
for post-conviction relief that was amended in August 2002. In the amended petition, Johnson
sought relief by arguing, among other claims, that Ross should be applied retroactively and that
the eight years added to his sentence under the general habitual offender statute should be
removed.
The post-conviction court denied the petition, and the Court of Appeals affirmed.
Johnson v. State, 49A05-0303-PC-101 (Ind. Ct. App. Jan. 12, 2004). We grant transfer solely to
2
address the issue of Ross’s retroactivity. We otherwise summarily affirm the decision of the
Court of Appeals. Ind. Appellate Rule 58(A).
This Case Is Like Jacobs
As we hold in Jacobs v. State, __ N.E.2d __, __ (Ind. 2005), because our decision in Ross
affects the substantive law controlling application of the general habitual offender statute, it
applies retroactively on collateral review to those cases final at the time Ross was announced.
Thus, the eight-year enhancement added to Johnson’s sentence under the general habitual
offender statute is vacated.
Conclusion
We direct the post-conviction court to remove the eight-year enhancement under the
general habitual offender statute from Johnson’s sentence.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
3