FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS GREGORY F. ZOELLER

Marion County Public Defender Attorney General of Indiana

Indianapolis, Indiana

ERIC P. BABBS

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DARRYL SHEPHERD, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1111-CR-600

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

Cause No. 49G05-0911-MR-97663

April 8, 2013

OPINION ON REHEARING - FOR PUBLICATION

NAJAM, Judge
2

On July 3, 2012, we affirmed Shepherd’s conviction for unlawful possession of a 

firearm by a serious violent felon (“SVF”) and his sentence as an habitual offender in a 

memorandum decision. On July 31, 2012, the Indiana Supreme Court, in Dye v. State, 

held that an SVF cannot have his sentence enhanced under the general habitual offender 

statute. Dye v. State, 972 N.E.2d 853, 855, 858 (Ind. 2012). On August 2, 2012, 

Shepherd filed a petition for rehearing in which he asserted, among other things,1that the 

holding in Dye applied retroactively to his appeal. On August 17, 2012, the State filed its 

response to Shepherd’s petition, asking that we hold his petition in abeyance while the 

State sought rehearing in Dye.

On March 21, 2013, the Indiana Supreme Court issued its opinion on rehearing in 

Dye. In its opinion on rehearing, the court clarified that its earlier holding was not 

intended to break new ground but, rather, was simply an application of the law 

announced in Mills v. State, 868 N.E.2d 446 (Ind. 2007). Dye v. State, ___ N.E.2d ___, 

slip op. at 3-4 (Ind. Mar. 21, 2013) (opinion on rehearing). Specifically, the court 

clarified that an SVF conviction enhanced by an habitual offender adjudication is 

impermissible only when the same underlying offense, or an underlying offense within 

the res gestae of another underlying offense, is used to establish both the SVF status and 

the habitual offender status. Id. at 5-6.

Mills is established law and was available to Shepherd at the time he filed his 

initial brief on direct appeal, but Shepherd did not argue that Mills or related law applied 

 

1

 Shepherd’s other arguments in his petition for rehearing are without merit, and we do not 

consider them.
3

in his appeal. “[I]t is well established that ‘any question not argued on appeal cannot be 

raised for the first time in a petition for rehearing.’” Carey v. Haddock, 881 N.E.2d 1050, 

1050 (Ind. Ct. App. 2008) (quoting Brockman Enters. LLC v. City of New Haven, 868 

N.E.2d 1130, 1132 (Ind. Ct. App. 2007), trans. denied), trans. denied. Shepherd’s 

argument in his petition on rehearing that Mills or related law should be applied to him is 

waived.

Shepherd’s waiver notwithstanding, our review of the record available on direct 

appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in 

cocaine, as a Class B felony, while his habitual offender enhancement was based on a 

1991 Class C felony conviction for battery and a 2008 Class D felony conviction for 

intimidation. There is no reason for this court to believe that any one of those three 

underlying felonies is in any way related to another.

Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior 

decision.

RILEY, J., and DARDEN, Sr.J., concur.