Ronnie E. Polk v. State of Indiana (NFP)
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: ATTORNEYS FOR APPELLEE: RONNIE POLK Michigan City, Indiana STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA RONNIE E. POLK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 79A02-0705-CR-394 APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-9507-CF-00066 SEPTEMBER 7, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION GARRARD, Senior Judge This is an appeal from the denial of Polk s motion to correct erroneous sentence. Polk argues that the trial court erred by failing to specify which sentence was being enhanced by an habitual offender finding and that his sentence is manifestly unreasonable under Ind. Appellate Rule 7(B). A jury convicted Polk of possession of at least three grams of cocaine within 1000 feet of a school, a Class A felony, and possession of a controlled substance within 1000 feet of a school, a Class C felony. The trial court imposed concurrent sentences of thirty years and four years, respectively, on the possession charges and enhanced the sentence by thirty years on an habitual offender finding. We agree with Polk that where a defendant is convicted of multiple offenses and is determined to be an habitual offender, the trial court must specify to which of the convictions the habitual offender enhancement applies. The remedy where it fails to do so is a remand to the trial court to make the necessary specification. Collier v. State, 498 N.E.2d 1219, 1221 (Ind. 1986) Polk had a direct appeal from his conviction. In a docket entry dated October 22, 1996, the supreme court directed the trial court to specify which felony conviction had been enhanced. The trial court responded by establishing that the enhanced sentence did, and could, apply only to the cocaine offense. Accordingly, in its opinion on the direct appeal the supreme court stated that the cocaine conviction was enhanced by thirty years for the habitual offender finding. Polk v. State, 683 N.E.2d 567, 568 (Ind. 1997). Subsequently, Polk filed an Indiana Post-Conviction Rule 1 petition, which was denied by the trial court. On appeal this court affirmed and determined inter alia that 2 Polk s sentence was not improperly enhanced on the basis that his possession occurred within one thousand feet of school property. It thus appears that Polk s contention that the court failed to specify the conviction to which the habitual offender enhancement applied was corrected at the time of his direct appeal in 1996. His additional issue concerning the reasonableness of his sentence is not an issue available on a motion to correct erroneous sentence. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). No reversible error has been established. Affirmed. SHARPNACK, J., and MATHIAS, J., concur. 3
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