Opinion
24A-CR-507
08-05-2024
Tracy Regan Hopkins, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Steven Knecht Tippecanoe County Public Defender's Office Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2112-F3-34, 79D01-2108-F5-132
ATTORNEY FOR APPELLANT
Steven Knecht
Tippecanoe County Public Defender's Office
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Steven J. Hosler
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] Tracy Regan Hopkins appeals the trial court's finding, following a bench trial, that he is an habitual offender. He challenges the sufficiency of the evidence. We affirm.
Facts and Procedural History
[¶2] On June 13 and July 30, 2021, Hopkins drew a knife and threatened Dennis Morris, a Walmart loss prevention associate, when Morris approached Hopkins and attempted to stop him from leaving the Walmart store on South Street in Tippecanoe County.
[¶3] On October 4, 2021, the State filed an amended information charging Hopkins with two counts of intimidation as level 5 felonies, two counts of armed robbery as level 3 felonies, and two counts of theft as class A misdemeanors. The State further alleged Hopkins was an habitual offender and sought a sentence enhancement.
[¶4] On November 27, 2023, Hopkins entered into a plea agreement pursuant to which he agreed to plead guilty to both counts of level 5 felony intimidation in exchange for dismissal of the remaining charges except for the habitual offender enhancement, which Hopkins agreed would be resolved by bench trial. The trial court accepted the agreement and proceeded to a bench trial on the habitual offender enhancement.
[¶5] During the trial, Hopkins stipulated that his name is Tracy Regan Hopkins and his birthdate is February 7, 1963, and he further stipulated to his Illinois driver's license number and the last four digits of his social security number. The State moved to admit Exhibits 1 through 4 which were certified records in four Illinois felony criminal cases, with sentencing dates of 1997 (burglary), 2005 (residential burglary), 2009 (armed habitual offender), and 2016 (theft), with the named defendant being "Tracy R. Hopkins" with a listed birthdate of February 7, 1963. Transcript Volume II at 18; Exhibits Volume I at 14-46. Two of the records also listed Hopkins's driver's license number and social security number which matched those listed in the charges in the current case and to which he stipulated. Hopkins's counsel stated, "Yeah, we've already, I've discussed this with my client. He acknowledges that these are his cases. He does have an issue with the 10 years." Transcript Volume II at 19. The court responded, "[W]e have a legal issue not factual" and defense counsel replied, "Yes. Right." Id. After the State rested its case, Hopkins's counsel reiterated, "As far as the certifie[d] [records] that were introduced judge, there's no issue." Id. The court then stated:
This argument refers to the relevant language in the habitual offender statute, which we will cite more fully below, which requires that "not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one" of the "prior unrelated felonies and the time the person committed the current offense." Ind. Code § 35-50-2-8(c), (d).
Alright. So what it appears to be then there's a legal issue which Mr. Hopkins wishes to raise and that without going into it, and I will have to look to see the dates on all these where they fit in, but it's strictly a legal issue as to whether these are, should be
considered qualifiers for the habitual offender sentencing enhancement due to their age.Id. Defense counsel stated, "Yes. That's the one issue he wanted me to raise." Id. at 20. The court set briefing deadlines for the parties to brief that issue. Following subsequent briefing by both parties, the court concluded that Hopkins was an habitual offender. The court sentenced him to consecutive sentences of four years on the first intimidation count and three years on the second count. It enhanced the sentence on the first count by two years based on the habitual offender finding, for an aggregate sentence of nine years. The court ordered seven of those years executed and two years suspended to probation.
Discussion
[¶6] Hopkins challenges the sufficiency of the evidence to support his habitual offender adjudication. When determining whether sufficient evidence supports a defendant's habitual offender adjudication, we neither reweigh the evidence nor re-evaluate the witnesses' credibility. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015). Instead, we view the evidence in the light most favorable to the judgment, and we will affirm that judgment unless we cannot find substantial evidence of probative value to support it. Id.
[¶7] The State alleged that Hopkins was an habitual offender pursuant to alternative subsections of Ind. Code § 35-50-2-8. Subsection (c) provides:
A person convicted of a Level 5 felony is a habitual offender if the state proves beyond a reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated felonies;
(2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony; and
(3) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the two (2) prior unrelated felonies and the time the person committed the current offense.Ind. Code § 35-50-2-8(c). Subsection (d) provides:
A person convicted of a felony offense is a habitual offender if the state proves beyond a reasonable doubt that:
(1) the person has been convicted of three (3) prior unrelated felonies; and
(2) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated felonies and the time the person committed the current offense.Ind. Code § 35-50-2-8(d).
[¶8] Hopkins's sole assertion on appeal is that the "evidence submitted by the State was insufficient to prove [his identity as] the person convicted in the prior cases." Appellant's Brief at 10. The State argues we should not address his sufficiency claim because Hopkins admitted during the bench trial, through counsel, that he was the person who was convicted in the prior cases. We agree. "To qualify as a judicial admission, an attorney's remarks must be a 'clear and unequivocal admission of fact.'" Tanksley v. State, 144 N.E.3d 824, 826 (Ind.Ct.App. 2020) (quoting Parker v. State, 676 N.E.2d 1083, 1086 (Ind.Ct.App. 1997)), trans. denied. "Stated differently, the attorney's remarks 'must be an intentional act of waiver[,] not merely assertion or concession made for some independent purpose.'" Id. (quoting Collins v. State, 174 Ind.App. 116, 120-121, 366 N.E.2d 229, 232 (1977), reh'g denied).
[¶9] Here, Hopkins's counsel stated unequivocally during trial that Hopkins did not challenge his identity as the individual named in the certified documents which were submitted as evidence that he had four prior Illinois felony convictions. Indeed, defense counsel remained steadfast in this position during post-trial briefing, as the sufficiency of the State's proof of identity was neither questioned nor addressed. We view counsel's remarks as an intentional act of waiver as to the issue of identity. Under these circumstances, Hopkins is bound by his judicial admission and he may not raise the issue of identity on appeal. See Tanksley, 144 N.E.3d at 828 (defendant, through counsel, made binding judicial admission regarding identity during trial so could not raise sufficiency of evidence of identity on appeal). Hopkins does not challenge the sufficiency of the evidence on any other ground and therefore, we need not address his appellate argument any further.
[¶10] For the foregoing reasons, we affirm the trial court.
[¶11] Affirmed.
May, J., and Pyle, J., concur.