Pyle, J.
It is axiomatic that an habitual offender adjudication must be based on proof that a defendant has accumulated two prior unrelated felony convictions, meaning that the commission, conviction, and sentencing on the first felony preceded the commission, conviction, and sentence on the second felony. A post-conviction petitioner who challenges his habitual offender determination must demonstrate that he was not an habitual offender under the habitual offender statute and that his various convictions did not in fact occur in the required order.
Ty Evans (“Evans”), pro se, appeals the post-conviction court’s denial of his successive petition for post-conviction relief. Evans argues that the postconviction court erred by denying him post-conviction relief on his motion to withdraw his guilty plea to the habitual offender allegation pursuant to INDIANA CODE § 35-35-1-4(c). Specifically, he argues that he was entitled to post-conviction relief because the dates of the two felony convictions underlying his habitual offender adjudication were not in the proper sequence as required by the habitual offender statute, INDIANA CODE § 35-50-2-8. The postconviction court denied relief on Evans’ successive post-conviction petition, finding that Evans had not pleaded guilty. The post-conviction court also concluded that Evans had not otherwise shown that he was entitled to postconviction relief because he had failed to show that there was an improper sequencing on the two predicate felonies underlying his habitual offender adjudication. Concluding that the post-conviction court erred by denying postconviction relief to Evans, we reverse the post-conviction court’s judgment.
We reverse and remand.
…
Our Court granted Evans permission to file a successive petition for postconviction relief so that he could raise a claim to withdraw his guilty plea under INDIANA CODE § 35-35-1-4(c) based on his argument that the dates of the two felony convictions underlying his habitual offender adjudication were not in the proper sequence as required by INDIANA CODE § 35-50-2-8. The postconviction court denied post-conviction relief to Evans based on its conclusion that Evans had not admitted or pled guilty to the habitual offender allegation.
We need not, however, delve into the post-conviction court’s determination about whether Evans had admitted to the habitual offender allegation because “[w]e have considered possible defects in habitual offender proofs as ‘fundamental error’ such that they may be raised [in a post-conviction proceeding] notwithstanding failure to do so on direct appeal.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993), reh’g denied. See also Williams v. State, 525 N.E.2d 1238, 1241 n. 1 (Ind. 1988) (“Where the record of the habitual offender proceeding clearly shows inadequate proof with regard to the chronological sequence of the underlying felonies, however, we consider such error to be fundamental.”), reh’g denied.
Here, the heart of this appeal and Evans’ post-conviction argument is that he did not qualify for the habitual offender enhancement under INDIANA CODE § 35-50-2-8 because the two underlying or predicate offenses were not in the proper chronological order. Thus, we will focus on that issue.
…
“A [post-conviction] petitioner challenging an habitual offender determination may not prevail simply by putting the State to its proof as though the case were being tried or appealed in the first instance[;]” instead, “it is the petitioner’s burden to demonstrate that the various convictions did not in fact occur in the required order.” Bryant v. State, 760 N.E.2d 1141, 1143 (Ind. Ct. App. 2002). Thus, Evans was required to “demonstrate that he was not an habitual offender under the laws of the state” and that his “various convictions did not in fact occur in the required order.” See Weatherford, 619 N.E.2d at 918.
Here, in support of Evans’ assertion that the predicate offenses underlying his habitual offender adjudication were not in the required statutory order, he had the post-conviction court consider his direct appeal record, and he submitted an affidavit and various documents. Most notably, Evans submitted a certified copy of the June 1998 order amending the 1998 Kentucky indictment to correct the commission date of the escape offense contained in that indictment, which originally listed the commission date as November 14, 1997, to the commission date of November 7, 1994. As this June 1998 order was certified by the Kentucky court, it was entitled to full faith and credit.
…
The post-conviction court, however, disregarded the June 1998 order, expressing “strong reservations about Evans’s PCR evidentiary submissions,” most notably Evans’ submission of the June 1998 order.
…
Because Evans demonstrated that he was not an habitual offender under the laws of the state and that his two convictions did not in fact occur in the required order, we reverse the post-conviction court’s denial of relief to Evans and remand to the court with instructions to issue an amended abstract of judgment consistent with this opinion. See, e.g., Williams, 525 N.E.2d at 1241 (reversing an habitual offender determination where “the prior convictions clearly did not occur within the requisite statutory sequence”); Bryant, 760 N.E.2d at 1145-46 (reversing an habitual offender adjudication where the petitioner had met his post-conviction burden by demonstrating that “the factual basis for the habitual offender determination was erroneous” and had therefore shown that “the underlying convictions for the habitual offender enhancement [we]re out of sequence”).
Reversed and remanded.
Robb, J., and Weissmann, J., concur.