Alford v. State
Citation | 35 Ind.Dec. 588,294 N.E.2d 168,155 Ind.App. 592 |
Decision Date | 27 March 1973 |
Docket Number | No. 3--672A21,3--672A21 |
Parties | Orville Richard ALFORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Court of Appeals of Indiana |
Daniel A. Roby, Wyss, McCain, Mochamer, Roby, Ryan & Myers, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.
NATURE OF THE APPEAL: Orville Richard Alford, hereinafter referred to as Alford, pled guilty on September 9, 1968 to the offense of second degree burglary. 1 Before Alford was sentenced by the Allen Circuit Court, he left Indiana for Kentucky where he was convicted for a second offense and sentenced to the Kentucky State Penitentiary. During Alford's incarceration in Kentucky, he filed a motion for speedy trial and motion to dismiss pending charge with the Allen Circuit Court. A writ of mandate for discharge filed with the Supreme Court of Indiana was denied too. After serving three years in the Kentucky State Penitentiary, Alford was returned to Indiana on a detainer warrant and sentenced by the Allen Circuit Court on March 20, 1972 to not less than two (2) nor more than five (5) years. On the day of sentencing, Alford filed a petition for discharge on the grounds that the State of Indiana should have returned him to Indiana for sentencing earlier so that his Indiana and Kentucky sentences would run concurrently. It is from the overruling of this petition that Alford appeals.
We affirm the Allen Circuit Court's judgment denying Alford's petition for discharge in our opinion which follows:
Alford timely filed his motion to correct errors on March 27, 1972 which raises the issues discussed below.
STATEMENT OF THE ISSUES: The sole contention of error is that the trial court erred in overruling Alford's petition for discharge on the grounds that Alford was entitled to have his Indiana and Kentucky sentences run concurrently; therefore, the delay in sentencing was error. This contention of error raises the following issues for our consideration:
1. Does Alford have a right to serve the sentence for his Indiana criminal offense and the sentence for his Kentucky criminal offense concurrently?
2. Was sentencing without delay mandatory upon the Allen Circuit Court?
We find that the petition for discharge was properly denied for the reasons set out in our STATEMENT ON THE LAW section below, and we affirm the trial court's judgment.
STATEMENT OF THE LAW: We preface our discussion of the above issues by noting that Alford contends that Rule CR. 4(A) and (B) of the Indiana Rules of Criminal Procedure, and cases relating to a right to speedy trial are applicable to sentencing. We reject this contention. Rules 4(A) and (B) refer only to defendants who are in jail awaiting trial and who are, therefore, presumed innocent. Alford had pled guilty. The trial court had accepted his plea and found him guilty. Alford stood convicted of second degree burglary. He was only awaiting sentencing when he was convicted of a second offense in Kentucky and sentenced to the Kentucky State Penitentiary. In the recently decided Hart v. State (1973), Ind., 292 N.E.2d 814, our Supreme Court expressed the necessity for a speedy trial and the resultant prejudice to defendant as follows:
Once the defendant has pled guilty and is convicted of the offense, the possibility of lost evidence or fading memories of witnesses is no longer a factor. Although Alford had not been sentenced, his right to file a motion to withdraw his guilty plea or to file a petition for post conviction relief under P.C. 1 of the Indiana Rules of Procedure were in no way impaired.
ISSUE ONE:
Does Alford have a right to serve the sentence for his Indiana criminal offense and the sentence for his Kentucky criminal offense concurrently?
There is no constitutional right to serve concurrent sentences for different crimes in Indiana. The Indiana Supreme Court in Bewley v. State (1966), 247 Ind. 652, 654, 220 N.E.2d 612 held that:
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