ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
SUPREME COURT OF INDIANA
Melvin Tunstill, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0005-CR-327 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
March 20, 2001
Melvin Tunstill was convicted and sentenced for dealing in cocaine. On appeal,
he challenges the trial courts finding that he is an habitual offender and
its weighing of his mitigating circumstances.
The State called Richard Manship, a criminal records processor and record keeper for
the Indianapolis Police Department identification branch. Manship identified certified copies of original
arrest reports that indicated by name, birth date, social security number, and gallery
number that Tunstill had been sentenced for manslaughter in 1988, and sentenced for
his 1996 act of dealing in cocaine on July 18, 1997. The
records showed Tunstills arrest on October 3, 1997, for the
present charge of dealing in cocaine on September 18, 1997. See footnote
The trial court found that Tunstill was an habitual offender. It imposed
a presumptive sentence of thirty years for Tunstills current crime and added ten
years under the habitual offender statute. After the prosecutor questioned the accuracy
of the enhancement, the court revised the sentence, saying, Its enhanced by 30
years. (R. at 182.) The sentence thus totals sixty years.
Tunstills sufficiency argument focuses on a moment during the habitual phase when the
prosecutor asked Manship whether Tunstill was arrested on October 3,
1977 under cause
number 97-146841 for dealing in cocaine as a class A felony? (R.
at 132)(emphasis added). Manship answered affirmatively. This answer, Tunstill contends, means
that the State did not prove he committed his current crime after being
sentenced on his 1997 offense.
It is clear from the record that the prosecutor intended to question Manship
regarding Tunstills arrest on October 3, 1997. Both the crime and the
cause number recited in the prosecutors question related to Tunstills most recent conviction.
Inasmuch as the court had just taken Tunstills plea to this offense,
the State need not have proven again the date that the current offense
was committed when the trier of fact during the habitual phase is the
same trier that just found the defendant guilty. Smith, 543 N.E.2d at
The evidence was sufficient to find that Tunstill was an habitual offender.
The sentencing decision is within the discretion of the trial court and will
be reversed only for a manifest abuse of that discretion. Sims v.
State, 585 N.E.2d 271, 272 (Ind. 1992).
The court cited Tunstills prior criminal history as an aggravator, and both his
admission of responsibility by plea agreement and remorse as mitigators. Determining
that these factors balanced, the court sentenced Tunstill to a thirty-year presumptive sentence
on his dealing cocaine conviction.
It further enhanced the sentence by ten years under the habitual offender statute.
This was a mistake quickly corrected. Indiana Code § 35-50-2-8(e) requires
the court to sentence a person found to be a habitual criminal to
an additional fixed term that is not less than the presumptive sentence for
the underlying offense nor more than three (3) times the presumptive sentence for
the underlying offense. However, the additional sentence may not exceed thirty (30)
years. Once the judge realized his mistake,
See footnote he revised the
enhanced Tunstills sentence by thirty years. (R. at 182.)
In effect, Tunstill claims the trial court should have reduced the sentence on
the present cocaine charge to compensate for its lack of discretion regarding the
habitual offender enhancement. A judge might well do this, in order to
assure that the overall sentence is appropriate to the offense and the offender.
Here, the trial judge concluded that the aggravating and mitigating circumstances balance.
(R. at 180.) It thus imposed the presumptive sentence for the
instant crime and added the habitual offender enhancement. We are not persuaded
that this was an abuse of discretion.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Ms. South: Your Honor, Im sorry. What--What was the
sentence on the A felony?
The Court: Thirty.
Ms. South: And what was the sentence on the habitual?
The Court: Ten.
Ms. South: On an A felony you can do ten years?
The Court: Its ten to thirty, isnt it?
Mr. Tompkins: Yeah.
The Court: Isnt the range ten to thirty?
Ms. South: On an A felony?
The Court: Im pretty sure. What do you think it is?
Ms. South: I thought it was a minimum of thirty.
The Court: And a maximum of? Well, lets see here,
Indiana Code 35-50-2-8, three times the presumptive for the underlying is the maximum, not less than the presumptive of the underlying offense, so I think it is 30. So it is 30 years. Its enhanced by 30 years. Anything else at this time, then, Mr. Tompkins?
Mr. Tompkins: No, Your Honor.
(R. at 182.)