Baromich v. State, 169S22

• Decision Date: 03 July 1969
• Docket Number: No. 169S22,169S22
• Citation: 252 Ind. 412,249 N.E.2d 30
• Parties: Milton N. BAROMICH, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

Page 30

249 N.E.2d 30

252 Ind. 412

Milton N. BAROMICH, Petitioner, v. STATE of Indiana, Respondent.

No. 169S22.

Supreme Court of Indiana.

July 3, 1969.

Rehearing Denied Sept. 23, 1969.

Max Cohen, Gary, for petitioner.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty., Gen., Indianapolis, for respondent.

ON PETITION FOR WRIT OF CERTIORARI FOR CORRECTION OF SENTENCE

DeBRULER, Chief Justice.

This is a Petition for Certiorari under Rule 2--40A seeking review of a denial of a Motion to Correct Judgment filed in the trial court under Rule 2--40B. On November 9, 1967, petitioner was charged in two separate indictments with the crime of theft in violation of the Offenses Against Property Act, Acts 1963 (Spec.Sess.), ch. 10, § 3, the same being Burns' Ind.Stat.Ann. § 10--3030(a). On September 23, 1968, the petitioner in each of these causes entered a plea of guilty to a lesser included offense of theft of less than $100.00, a violation of Burns' Ind.Stat.Ann. § 10--3039(1). The State of Indiana in each case accepted the pleas to the lesser offenses and waived prosecution on the charges in each of the indictments. On October 14, 1968, the court imposed sentence in each of the causes. The petitioner in Cause No. 39470 was sentenced to a term of imprisonment at the Indiana State Farm for a period of not less than one year. In Cause No. 39471 the court again sentenced the petitioner to one year at the Indiana State Farm and then ordered the prison sentence to run consecutively after the sentence imposed in Cause No. 39470. The exact language of the commitment in Cause No. 39471 read as follows:

'It is therefore considered, adjudged and decreed by the Court that the defendant Milton N. Baromich, for the offense by him committed to-wit: Theft of Less than $100.00 be, and he is hereby imprisoned in the Indiana State Farm for a period of not less than one year from this date; that he be disfranchised for a period of one year from this date and pay the costs of this prosecution. It is further ordered by the Court that the prison sentence herein shall run consecutively after sentence imposed in Cause No. 39470.'

On November 18, 1968, petitioner, without objection from the State, filed his motion to correct judgment in No. 39471 requesting the sentence be made to run concurrently instead of consecutively. This motion was denied on January 21, 1969, by the Lake County Criminal Court.

At the outset the State argues that this error has been waived on appeal because the petitioner did not object when the sentence was imposed on October 14, 1968, but waited until November 18, 1968, to file his motion to correct judgment under Rule 2--40B.

Rule 2--40B, Supreme Court Rules, reads:

'Correction of Sentence. Whenever it shall appear from the indictment or affidavit and final judgment in any criminal cause that an erroneous sentence has been imposed by the trial court, the defendant in such cause may at any time petition the trial court to correct retroactively such judgment to conform to the term of imprisonment specified in the applicable statute upon proper notice (by serving a copy of the petition in person or by mail) upon the prosecuting attorney of the circuit and the attorney general of Indiana. An appeal may be taken to the Supreme Court from a final order granting or denying said petition under the same rules and conditions as provided in Rules 2--40 and 2--40A of this Court.' (Emphasis added.)

There is no time limit stated in this Rule, on the contrary, the Rule states that the motion may be made at any time. In Sutton v. State (1966), Ind., 221 N.E.2d 430, the Court stated:

'It is first argued that the court had no power after more than nine years, to vacate or set aside the judgment and sentence, since the term of court at which the court had such authority had long ago expired. Clouser et al. v Mock, (1959), 239 Ind. 143, 155 N.E.2d 745.

'However, it is our opinion that the case cited is not applicable since here, by appellants' own petition, they invoked the court's jurisdiction under the provisions of Indiana Supreme Court Rule 2--40B by asking the court to reconsider the sentence and make corrections therein. This application gave the court the right, in our opinion, upon appellants' application, to make what the court considered a correct modification or change in the sentence and judgment under Indiana Supreme Court Rule 2--40B.'

See also Dowd v. Todd (1962), 243 Ind. 232, 184 N.E.2d 4.

We believe petitioner followed the proper procedure in raising this issue and we proceed to the merits.

Petitioner argues that the trial court had no authority to order the sentence imposed in No. 39471 to commence at the conclusion of the sentence imposed in Cause No. 39470.

At one time Indiana did have a provision for consecutive sentences. R.S.1843, § 72, p. 997, stated in part:

'that when any person is convicted of two or more offences at the same term of any Court, the imprisonment to which such person shall be sentenced on any second or subsequent conviction, shall commence at the expiration of the preceding term of his or her imprisonment.'

This statute was dropped in the codification of 1852 and there has never been such a provision since then. In Miller v. Allen (1858), 11 Ind. 389, this Court said:

'In the absence of any statutory provision authorizing it to be done, the Courts have no authority to order a term of imprisonment in the penitentiary to commence at a future period of time. * * *

'There being no statute in force providing that one term of imprisonment shall commence at the expiration of another, we are of opinion that both terms commence and run concurrently. We have been furnished with no authorities on the question involved, and in the absence of authority to the contrary, it seems to us that the discharge of the petitioner was correct, for the reasons above indicated.'

After the defendant in Miller was sentenced in 1857, the Legislature passed Acts 1857, ch. 56, § 6, the same now being Burns' Ind.Stat.Ann. § 13--210, which says in part:

'The term of service and imprisonment of every convict shall commence from the day of his conviction and sentence.'

This Court in interpreting that statute in Kennedy v. Howard (1881), 74 Ind. 87, said:

'The courts of this State have no authority to adjudge, on several convictions, that one term of imprisonment shall commence to run at the expiration of another. 'The term of service and imprisonment of every convict shall commence from the day of his conviction and sentence.' 1 R.S.1876, p. 646, sec. 6. The result is that where there are several convictions and several terms of imprisonment adjudged, the terms run concurrently.'

In Lawson v. State (1931), 202 Ind. 583, 177 N.E. 266, this Court stated:

'Although the weight of authority is that courts have power derived from the common law to impose cumulative sentences on conviction of several offenses charged in separate indictments, or in separate counts of the same indictment, the imprisonment under one to commence at the termination of that under the other, 8 R.C.L. 240; note 7 L.R.A. (N.S.) 125, it has long been settled to the contrary in this state, Miller v. Allen (1858), 11 Ind. 389; Kennedy v. Howard (1881), 74 Ind. 87; Peed v. Brewster (1907), 168 Ind. 51, ...