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08/20/87 PHILIP R. LINTHICUM v. STATE INDIANA

Filed: August 20, 1987.

PHILIP R. LINTHICUM, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE LAWRENCE SUPERIOR COURT, The Honorable Don A. Erdmann, Cause No. S 81 CR 39.

Shepard, C.j., Givan, Pivarnik and Dickson, JJ., Concur. DeBRULER, J., Concurs IN Result With Opinion.

Author: Shepard

SHEPARD, C.J.

Appellant Philip R. Linthicum initially pled guilty to the robbery of an IGA store. He was sentenced to an enhanced term of twenty years. He later sought post-conviction relief, alleging that his plea had not been voluntary and intelligent. The trial court denied his petition, but this Court reversed and remanded the action with instructions to allow Linthicum to withdraw his former plea. Linthicum v. State (1984), Ind., 465 N.E.2d 701. The State then filed a habitual offender charge against Linthicum. After a trial Linthicum was convicted of robbery, a class B felony, Ind. Code § 35-42-5-1 (Burns 1985 Repl.), and found to be a habitual offender. He was sentenced to an enhanced term of twenty years for the robbery and thirty years were added for the habitual offender finding.

Linthicum raises five issues on direct appeal of his conviction.

1) Whether the trial court erred when it denied a motion to dismiss the habitual offender charge and imposed a longer sentence after post-conviction relief had been granted;

2) Whether the trial court properly admitted identification evidence that resulted from a one-man show up;

3) Whether the defendant's statement to police was voluntarily given;

4) Whether the trial court erred in refusing to give an instruction on the defense of intoxication; and

5) Whether the trial court correctly denied a change of venue.

At trial the evidence showed that late on August 26, 1981, Linthicum, Ralph Holiday, and Edward Kays stopped at a bar in Indianapolis. They stayed for about an hour and a half and shared one pitcher of beer. The men decided to travel down to Bedford because Kays knew a women there and Holiday had a daughter there. On the way to Bedford, the men realized they were running out of money. They began to discuss plans for robbing a store and decided on the IGA in Bedford. Once at the store, Linthicum got out of the car and walked around the building. He returned to the car reporting that some people were inside. A moment later, he left again.

In the early morning hours of August 27, 1981, night cashier Joy Hatfield saw a man walk past the front window of the IGA without entering. Some time later she saw the same man walk into the store. He walked around the store once and then came forward to the counter. Hatfield conversed with the man for about five minutes. The man lifted his shirt and showed her a gun. He said he was going to count to five. Hatfield opened the register and handed him the twenty dollar bills. The man impatiently grabbed the rest of the money and fled.

Holiday testified that when Linthicum returned to the car a second time, he was carrying cash. They split a portion of the money and headed for the Hideaway Bar.

Hatfield reported the robbery to the police. She described the robber as a white male, between 5'9" and 5'10", with dark hair and a scar on the right side of his face. She further stated the man was wearing an orange T-shirt at the time of the robbery. Detective Robinson of the Bedford Police Department split up his men to survey the bars in Bedford. Later Robinson saw Linthicum at the Hideaway Bar; Linthicum matched Hatfield's description. Robinson identified himself, advised Linthicum of the robbery, and asked him to accompany him back to the store. Linthicum agreed.

Back at the store, Hatfield identified Linthicum as the robber. Robinson then arrested Linthicum. At the police station Linthicum waived his rights and talked with Robinson about the robbery.

I. Imposition of a Greater Sentence After Post-Conviction Relief

Linthicum argues the trial court erred by denying a motion to dismiss the habitual offender charge and by subsequently adding thirty years to his twenty-year robbery sentence. He contends that Rule PC 1, § 10, Ind. Rules of Procedure for Post-Conviction Remedies, bars the assessment of a greater sentence after a successful post-conviction action. In light of the timing of this case, we agree.

On April 1, 1982, when Linthicum filed for post-conviction relief, Rule PC 1, § 10, read:

(a) If prosecution is initiated against a petitioner who has successfully sought relief under this Rule and a ...


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