Barbee v. State, 472A163

• Citation: 156 Ind.App. 431,296 N.E.2d 884
• Decision Date: 19 June 1973
• Docket Number: No. 472A163,472A163
• Court: Court of Appeals of Indiana
• Parties: Levi BARBEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

Page 884

296 N.E.2d 884

156 Ind.App. 431

Levi BARBEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 472A163.

Court of Appeals of Indiana, Third District.

June 19, 1973.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellant.

Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

SHARP, Judge.

The Appellant, Levi Barbee, was charged by way of indictment with the crime of robbery as defined in I.C. 1971 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956 Repl). The case was tried before the trial court without the intervention of a jury and the Appellant was found guilty on May 3, 1968 and was sentenced to the Indiana State Reformatory for a term of 10 to 25 years. On July 27, 1971 the Appellant filed a petition for post-conviction relief which was heard on October 20, 1971 and said petition was sustained to the extent that the trial court entered a nunc pro tunc entry modifying the Appellant's sentence to a term of 10 to 20 years. With that exception, the other relief prayed for in the petition for a post-conviction relief was denied.

The only issue properly preserved and presented on this appeal is the propriety of the sentence of 10 to 20 years. The facts regarding the commission of the crime of robbery are not in issue in this appeal.

The Appellant here asserts that the modified sentence of 10 to 20 years for robbery is violative of the constitutional guarantees against cruel and unusual punishment and further contends that the only proper sentence for robbery is a 10 year determinate term. The basic rationale of the Appellant's argument is that a sentence of 10 to 20 years, indeterminate, is greater than a sentence of 10 to 20 years, determinate, because there is a possibility that one serving under the determinate sentence could be released at an earlier date than one serving under the indeterminate sentence. Since robbery, which carries the indeterminate sentence, has been held a lesser included offense under armed robbery, which carries the determinate sentence, the Appellant believes the robbery sentence is disproportionate to the crime.

The Appellant's argument must fail in light of the numerous cases that have been decided previously and which support the proposition that the proper sentence for robbery may be an indeterminate term of 10 to 20 years. Further, it must be noted that the Appellant's entire argument is based on the possibility that one convicted of a greater offense might be required to serve a lesser term of imprisonment than one convicted of a lesser included offense. This matter has been previously considered by our Supreme Court and its rulings do not support the Appellant's position.

The Indiana Supreme Court first dealt with the constitutionality of the indeterminate sentence of 10 to 25 years for the crime of robbery in the case of Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815 (1968), where the court announced that the sentence was constitutionally invalid because it was greater in years on the face of the statute than the penalty for armed robbery which was a greater crime. Since Dembowski, our Indiana Supreme Court has repeatedly held that a term 10 to 25 years for robbery is unconstitutional and should be corrected to a term of 10 to 20 years. See Woods v. State, 255 Ind. 483, 265 N.E.2d 244 (1970); Sargeant v. State, 255 Ind. 252, 263 N.E.2d 525 (1970); McDougall v. State, 254 Ind. 62, 257 N.E.2d 674 (1970); and Hobbs v. State, 253 Ind. 195, 252 N.E.2d 498 (1969).

Recently, in Dotson v. State, Ind., 282 N.E.2d 812 (1972), our Indiana Supreme Court rejected an argument which was virtually the same as that now propounded here by the Appellant. In Dotson, the defendant had been given a modified sentence to 10 to 20 years, indeterminate, for the crime of robbery by putting in fear. The defendant in that case contended that the sentence should be charged to a determinate sentence of 10 years, just as does the Appellant here. One Supreme Court rejected Dotson's argument, which was based upon the possibility that he could serve more time than someone serving a term for armed robbery. The defendant in Dotson alleged that the prior consideration of the difference between determinate and indeterminate sentences has been resolved by the court on the assumption that both sentences permitted parole. The following language from Dotson at 282 N.E.2d at page 815 is relevant here:

'A reading of these two statutes reveals that one who is serving an indeterminate sentence may have a good time diminution of his minimum sentence in order to make him eligible for parole while one serving a determinate sentence is entitled to a good time diminution off of his sentence leading to a discharge. By way of example, if a prisoner were given a determinate sentence of 20 years he would be discharged, taking into account his good time diminution, after 12 years and 6 months; but a prisoner serving an indeterminate sentence of ten to twenty years with good time diminution would only be eligible for parole after six years and eight months and thereafter be under parole up to a possible 20 years.

'We must start in a consideration of this question with the proposition that the maximum severity of the penalty for a given crime is the measure we use in determining whether the penalty in one crime is greater than that in another. Boyd v. State (1971), Ind., 275 N.E.2d 797.

'The appellant claims that he would be no worse off if he had been given a 20 years determinate sentence such as exists for Armed Robbery rather than the indeterminate sentence of 10 to 20 years for Robbery by Putting...