Badger v. State
| Decision Date | 03 July 2001 |
| Docket Number | No. 74A04-0007-PC-313.,74A04-0007-PC-313. |
| Citation | 754 N.E.2d 930 |
| Parties | Scott BADGER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Brian Eisenman, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Scott Badger appeals the denial of his post-conviction relief petition relating to his conviction for murder. We reverse.
The dispositive issue Badger raises is whether his petition should have been granted because of the erroneous advisement given by the trial court during the guilty plea hearing and because the plea agreement imposed an illegal sentence.
On February 9, 1990, the State charged Badger with murdering his wife. On April 15, 1991, Badger pled guilty as charged pursuant to a written plea agreement in Spencer County. The plea agreement provided that he would serve an executed sentence of forty years and required that the sentence would run consecutive to a thirty-year sentence previously imposed on an unrelated rape conviction in Warrick County.1
During the guilty plea hearing, the trial court advised Badger that the sentence imposed for murder could run consecutively to the sentence for rape in Warrick County. The trial court later amended this advisement by instructing Badger that the two sentences had to run consecutive. After accepting Badger's guilty plea, the trial court sentenced Badger pursuant to the plea agreement.
In July 1995, Badger filed a Motion to Correct Erroneous Sentence, which the trial court later denied. Badger appealed the denial to this court. On April 30, 1996, we affirmed the trial court's ruling, holding that although the sentence was erroneous, Badger had benefited from the illegality. In 1999, Badger filed an amended petition for post-conviction relief, asserting that: 1) Badger's sentence was in excess of that which legally could have been imposed; 2) Badger's guilty plea was not made knowingly, intelligently, and voluntarily due to the court's acceptance of the "illegal" plea agreement and the failure of the trial court to properly instruct Badger that consecutive sentences could not be imposed in this case; and 3) Badger's counsel was ineffective for negotiating an "illegal" plea agreement and failing to properly advise Badger that consecutive sentences could not be imposed. Record pp. 257-61. After conducting an evidentiary hearing, the post-conviction court denied his petition on the basis that Badger had benefited from the sentence, that he had been fully advised of his constitutional rights before entering the guilty plea, and that he knowingly and intelligently waived those rights.
Badger's appeal has three main components. First, he claims he is serving an illegal sentence that exceeds the maximum sentence authorized by law because his forty-year sentence for murder is consecutive to his thirty-year sentence for rape. Second, he claims that his guilty plea was not made knowingly, intelligently, and voluntarily because he was erroneously informed by the trial court that his murder sentence would have to run consecutive to his previously imposed sentence for rape. He contends that he would not have pled guilty had he been properly advised of the potential sentence. Finally, he maintains that he received ineffective assistance of counsel when his counsel failed to inform him "that the law prohibited the imposition of consecutive sentences as required by the plea agreement" and when counsel negotiated a plea agreement requiring him to serve an "illegally high sentence."2 Appellant's Brief p. 9.
Indiana Code Section 35-50-1-2 governs the circumstances in which a trial court may impose consecutive sentences. In 1991, when Badger pled guilty and was sentenced, the statute provided:
In Kendrick v. State, 529 N.E.2d 1311 (Ind.1988), our supreme court faced an issue similar to that presented in this case. In Kendrick, the defendant had charges pending against him in two separate divisions of the Marion Superior Court. He pled guilty and was sentenced upon the charges in one division. He subsequently pled guilty to the charges in the other division. Upon his guilty plea to the second set of charges, the trial court sentenced him and ordered that the sentence be served consecutive to the sentences for the first guilty plea. The defendant appealed, arguing that his guilty plea was not knowingly made because he was not advised of the possibility of consecutive sentences. Our supreme court indicated that consecutive sentences upon the second sentence were improper:
The language employed in Section (a) [in Indiana Code Section 35-50-1-2] by the legislature is restrictive. The general authority is limited to those occasions when a court is meting out two or more terms of imprisonment. If a court is contemporaneously imposing two or more sentences, it is granted the general statutory authority to order them to be served consecutive to one another. Section (a) does no more than this.
Later, in Seay v. State, 550 N.E.2d 1284 (Ind.1990), our supreme court reaffirmed that a court may not generally impose consecutive sentences for unrelated separate crimes when sentences have been imposed for the two crimes at separate times. In that case, the defendant was found guilty upon two separate counts and sentenced to fifteen and thirty years, respectively, upon Count I, and to fifteen years upon Count II; the trial court ordered that the sentence for Count II be served consecutive to Count I. The defendant appealed, arguing, inter alia, that the State improperly delayed filing the charges in that case (rather than filing them along with similar charges upon which he was convicted earlier that year) in order to obtain successive habitual offender enhancements. Citing the limitations of Indiana Code Section 35-50-1-2(a), the court held that the State may not seek multiple habitual offender sentence enhancements by bringing successive prosecutions for charges which could have been consolidated into one trial. Id. at 1289. In so holding, the court stated:
In Thompson v. State, 634 N.E.2d 775, 777-78 (Ind.Ct.App.1994), we found a Howard County sentencing order requiring that a five-year sentence for robbery be served consecutive to a sentence previously imposed in Monroe County to be without statutory authority. The State argued that Thompson's sentence was imposed pursuant to the terms of a plea agreement and that Thompson knew and understood the terms when he agreed to them. Further, the State argued that it entered into the plea agreement for consecutive sentences in lieu of prosecuting Thompson on the two charges originally filed against him. Thus, Thompson received the benefit of the agreement and could not then oppose it. We noted that the State's argument mirrored the argument advanced by the State in Sinn v. State, which we had rejected:
a contract made in violation of statute is void and unenforceable. Moreover, we cannot sanction an illegal sentence simply because it was the product of an agreement. For example, although ludicrous, we would not enforce a sentence of death for jay walking simply because the sentence was the product of a plea agreement. Courts are duty bound to correct illegal sentences.
Sinn, 609 N.E.2d 434, 436 (Ind.Ct.App. 1993), trans. denied. As in Sinn, we found the argument unpersuasive and concluded that the sentence was illegal. Thompson, 634 N.E.2d at 777-78. We concluded that the conviction and sentence entered pursuant to the illegal plea agreement had to be vacated. Id.
A number of other cases have reiterated the rule that the general authority to impose a consecutive sentence found in Indiana Code Section 35-50-1-2(a) is limited to those occasions when a court is contemporaneously imposing two or more sentences. See, e.g., Bartruff v. State, 553 N.E.2d 485, 488 (Ind.1990)
; Lamirand v. State, 640 N.E.2d 79, 81 (Ind.Ct.App.1994); Watkins v. State, 588 N.E.2d 1342, 1345 (Ind.Ct.App.1992); Baskin v. State, 586 N.E.2d 938, 940 (Ind.Ct.App.1992). Here, the sentence for the murder conviction was not imposed contemporaneously with the sentence for the rape conviction.
Furthermore, the sequence of Badger's crimes was such that the statute at issue was not invoked. A person must commit another crime after being arrested and before discharge on a prior crime for the mandatory sentencing statute to apply. Thompson, 634 N.E.2d at 777-78. Badger committed both the rape and the murder before being arrested for either crime.
Based on these reasons, it was improper for the trial court to order the murder sentence to be served consecutive to the previously imposed rape sentence. It follows, then, that the trial court...
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