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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.

ATTORNEY FOR APPELLANT: MICHAEL K. AUSBROOK Bloomington, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MAURICE COLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0612-CR-1097

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Priscilla Fossum, Judge Pro Tempore Cause No. 49G01-0607-FC-124260

October 25, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary In appealing a habitual offender enhancement, Maurice Cole asserts that the information was not amended to include the habitual offender allegation. We affirm. Facts and Procedural History The facts most favorable to the verdict are that on July 7, 2006, Cole attempted to exit a Kroger store without paying for a bag of meat. Unbeknownst to Cole, an employee had been watching him. That employee, with the help of two other Kroger workers, tried to stop him, and a struggle ensued. During the tussle, Cole pulled a pocket knife from his pocket, started swinging, and cut one of the employees across the stomach. Cole escaped. On July 10, 2006, the State charged Cole with class C felony battery and class D felony theft. App. at 34-35. On September 5, 2006, a "Notice of Filing Habitual Offender" was filed in which the State "notifie[d] the Court and [Cole] that the State . . . is seeking to have [Cole] sentenced as an Habitual Offender by filing a separate page alleging two prior unrelated felony convictions under the provisions of Indiana Code 35-50-2-8." Id. at 43. Along with that notice, the State filed a motion for leave to fingerprint Cole prior to the habitual offender sentencing hearing and filed a habitual offender information that listed Cole's two prior unrelated felony convictions. Id. at 42, 44-45. The next day, the court granted the motion to fingerprint Cole "prior to the habitual offender Sentencing hearing in Marion Superior Court, Criminal Division[.]" Id. at 46. On September 13, 2006, the court held an initial hearing and advised Cole "of rights as habitual offender." Id. at 6-7. On October 25, 2006, a jury trial was held at the conclusion of which the jurors found Cole guilty of both battery and theft. Id. at 8-9, 87-88; Tr. at 140. Cole pled guilty to the
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habitual offender enhancement. Tr. at 142-48. On November 3, 2006, the court sentenced Cole to six years for the battery conviction, eighteen months for the theft conviction, ordered the terms to be served concurrently, and enhanced the battery charge by four years due to the habitual offender status. App. at 29. Accordingly, Cole received a ten-year total sentence. Discussion and Decision Cole argues that his habitual offender enhancement should be vacated because the State "never moved to amend the information with the habitual offender allegation. It merely filed a notice." Appellant's Br. at 6. As such, his argument continues, the court "never granted a motion to amend that was never made; and the information was thus never amended to include the enhancement." Id. "A written allegation of habitual offender status is not a pleading which charges a separate criminal offense." Nash v. State, 545 N.E.2d 566, 567 (Ind. 1989). It must be made as a separable part of an indictment or information charging a criminal offense. See id.; Ind. Code

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