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Monday, June 03, 2013

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Bryant E. Wilson v. State of Indiana, a 9-page, 2-1 opinion with an appellant pro se, Judge Crone writes:

Bryant E. Wilson appeals the denial of his motion to correct erroneous sentence. Because his sentencing judgment is not erroneous on its face, we affirm. * * *

On appeal, Wilson renews his argument that “the trial court lacked statutory authority in holding a part of his executed sentence in abeyance.” We take this to mean that the trial court allegedly lacked statutory authority to impose partially consecutive sentences. Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible.[3] Compare Hull v. State, 799 N.E.2d 1178, 1182 and n.1 (Ind. Ct. App. 2003) (disapproving of partially consecutive sentences for two counts of murder), with Merida v. State, 977 N.E.2d 406, 409-10 (Ind. Ct. App. 2012) (disagreeing with Hull’s rationale and noting that Ind. Code § 35-50-1-2 “does not specifically prohibit partially consecutive sentences such as the one imposed in Hull.”) (Crone, J., dissenting), trans. granted (2013). We note that Hull was decided more than seven years after Wilson was sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved of partially consecutive sentences.4 Simply put, Wilson’s sentencing judgment is not erroneous on its face, and therefore the trial court did not err in denying his motion to correct erroneous sentence. Consequently, we affirm.

FRIEDLANDER, J., concurs.
ROBB, C.J., dissents with opinion. [that begins, at p. 6 of 9] Because I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute, I respectfully dissent.

I recognize that if this subject were more settled, we would not have the split within our court to which the majority refers regarding the availability of partially consecutive sentences. Nevertheless, I believe that sentencing is a creature of the legislature and that we are limited to sentences that have been expressly permitted by the legislature. * * *

[and concludes] Because the sentence in question was not explicitly permitted by statute, I believe it was therefore erroneous. For that reason, I would reverse the trial court’s denial of Wilson’s motion to correct erroneous sentence.
________
[3] The dissent says that “[t]he statute relevant to consecutive and concurrent sentences provides that the court shall determine whether terms of imprisonment shall be served concurrently or consecutively, but does not provide a path for implementing partially consecutive sentences.” Indiana Code Section 35-50-1-2 does not specifically require that consecutive sentences be served seriatim, or one after another, and thus it could be said to authorize partially consecutive sentences. The trial court in Hull apparently believed this to be the case, and we do not find this belief unreasonable. We hope that our supreme court will put the matter to rest in due course.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on June 3, 2013 11:21 AM
Posted to Ind. App.Ct. Decisions