Ben-Yisrayl v. State

• Decision Date: 10 July 2009
• Docket Number: No. 49A02-0806-CR-512.,49A02-0806-CR-512.
• Citation: 908 N.E.2d 1223
• Parties: Chijoike Bomani BEN-YISRAYL, f/k/a Greagree Davis, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

908 N.E.2d 1223

Chijoike Bomani BEN-YISRAYL, f/k/a Greagree Davis, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0806-CR-512.

Court of Appeals of Indiana.

July 10, 2009.

Elizabeth A. Gabig, Ann M. Sutton, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Following dismissal of his death penalty, Appellant-Defendant Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis, appeals his aggregate sentence of 150 years in the Department of Correction. Upon appeal, Ben-Yisrayl claims that the trial court erred by adopting and imposing the alternative term-of-years sentence provided for in the original sentencing order rather than conducting a new sentencing hearing. In addition, Ben-Yisrayl challenges the appropriateness of his sentence and the trial judge's recusal from his case. We affirm in part, reverse in part, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

In 1984, Ben-Yisrayl was convicted in Marion Superior Court, Criminal Division, Room Five ("Court Five"), of the murder, rape, burglary, and criminal confinement of Debra Weaver. See Ben-Yisrayl v. State (Ben-Yisrayl I), 738 N.E.2d 253, 257 (Ind.2000). The trial court imposed the death penalty for Ben-Yisrayl's murder conviction and also provided for an alternative sentence of sixty years in the event that the death penalty was set aside.¹ The trial court also imposed consecutive terms of fifty years, twenty years, and twenty years, for Ben-Yisrayl's rape, criminal confinement and burglary convictions, respectively. In the event that Ben-Yisrayl did not receive the death penalty, therefore, his aggregate term-of-years sentence was 150 years.

The Indiana Supreme Court affirmed Ben-Yisrayl's convictions and death sentence on direct appeal. Id. (citing Davis v. State, 598 N.E.2d 1041, 1044 (Ind.1992)). Ben-Yisrayl's direct appeal did not challenge his sentences for rape, criminal confinement, and burglary.

In subsequent post-conviction proceedings, the post-conviction court, the Honorable Cynthia S. Emkes, Special Judge, presiding, granted Ben-Yisrayl partial relief with respect to the death sentence, but it denied him relief with respect to the verdicts and 150-year aggregate sentence. The post-conviction court specifically ordered that the death sentence be set aside but that the "sentence imposed of 150 years total on Counts I, II, III, and V remain as imposed."² App. p. 277.

Ben-Yisrayl appealed, and the State cross-appealed, the post-conviction court's judgment. Ben-Yisrayl I, 738 N.E.2d at 257. Among his claims, Ben-Yisrayl challenged the post-conviction court's adoption of what it alleged was the trial court's "inadequate and improper sentencing order." App. p. 346. On November 8, 2000, the Supreme Court, viewing the post-conviction court's action as "a remand to the trial court for a new penalty phase trial and sentencing proceeding," affirmed the post-conviction court and remanded to the trial court for this "new penalty phase trial and sentencing proceeding." Ben-Yisrayl I, 738 N.E.2d at 267-68. The Supreme Court concluded that its affirmance and remand "render[ed] moot" the parties' challenges to the sentencing order. Id. at 268 n. 12.

On November 1, 2001, Ben-Yisrayl moved to dismiss the death penalty on constitutional grounds. On June 27, 2003, the trial court, the Honorable Grant W. Hawkins presiding, concluded that Indiana's death penalty statute was unconstitutional based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and granted Ben-Yisrayl's motion. On May 25, 2004, the Supreme Court reversed the trial court's judgment and remanded for reinstatement of the death penalty request and for the penalty phase proceedings which it had previously ordered. State v. Ben-Yisrayl (Ben-Yisrayl II), 809 N.E.2d 309, 311 (Ind.2004).

On May 26, 2005, Judge Hawkins recused himself. The case was randomly reassigned to Room G03 of the Marion Superior Court ("Court Three"), the Honorable Sheila A. Carlisle presiding. On June 27, 2005, Ben-Yisrayl moved to set aside Judge Hawkins's recusal or for a hearing on the matter, which Judge Hawkins denied.

On January 16, 2008, following multiple hearings in Court Three, the State moved to dismiss its request for imposition of the death penalty based upon the inadvertent destruction of physical evidence. The trial court granted the State's motion on January 18, 2008. On January 22, 2008, the trial court issued an amended abstract of judgment reflecting the dismissal of the death penalty but otherwise adopting the 150-year sentence originally imposed by the trial court.

On February 12, 2008, Ben-Yisrayl filed a motion to correct error, challenging the trial court's amended abstract of judgment adopting the 150-year sentence. The trial court held a hearing on March 28, 2008, after which Ben-Yisrayl filed a motion to transfer his case back to Criminal Court Five, which the trial court denied. The trial court denied Ben-Yisrayl's motion to correct error on May 22, 2008. This appeal follows.

DISCUSSION AND DECISION

Ben-Yisrayl first claims that the trial court erred upon remand when it adopted, without a sentencing hearing, the 150-year sentence originally imposed by the trial court in the event that the death penalty was set aside. Ben-Yisrayl argues that such action contravened the Supreme Court's orders upon remand. Ben-Yisrayl further challenges his alternative sentence on the grounds that it is unauthorized by Indiana law, and he requests a resentencing proceeding which conforms to the dictates of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The State responds by first arguing that Ben-Yisrayl's challenge to his sentence is barred by waiver and res judicata.

I. Waiver/ Res Judicata

A. Sentences for Burglary, Criminal Confinement, and Rape

Ben-Yisrayl's only death-penalty-eligible conviction was murder, so the trial court's original imposition and subsequent adoption of an alternative sentence to the death penalty implicates Ben-Yisrayl's sixty-year murder sentence only. See Ind. Code § 35-50-2-9 (1983). Ben-Yisrayl's separate sentences for his burglary, criminal confinement, and rape convictions, in contrast, were fully imposed at the time of Ben-Yisrayl's direct appeal. Ben-Yisrayl did not challenge these sentences on direct appeal, nor did he target them in his collateral attack during post-conviction proceedings. Furthermore, although the post-conviction court granted relief, this was only with respect to Ben-Yisrayl's death penalty. To the extent, therefore, that Ben-Yisrayl's 150-year sentence reflects the ninety-year aggregate sentence imposed for the separate convictions of burglary, criminal confinement, and rape, his claim is waived. See Becker v. State, 719 N.E.2d 858, 860 (Ind.Ct.App.1999) ("On an appeal from resentencing, the appellate court is confined to reviewing only the errors alleged to have occurred as a result of the resentencing. If an issue was available for litigation in direct appeal but was not in fact raised, then the issue has been waived.").

B. Sentence for Murder

Ben-Yisrayl's sixty-year sentence for murder, in contrast, was not available for review at the time of his direct appeal. At that time, Ben-Yisrayl's sentence for his murder conviction, which the Supreme Court affirmed, was the death sentence. Davis, 598 N.E.2d at 1044, 1046. Because Ben-Yisrayl's sixty-year sentence was merely a contingent sentence at the time of his direct appeal, his failure to challenge this sentence on direct appeal cannot be construed as waiver. See Ben-Yisrayl I, 738 N.E.2d at 258 (observing, as a general matter, that post-conviction issues are forfeited in the event that they were available and not presented on direct appeal).

In his post-conviction petition, Ben-Yisrayl challenged the permissibility of his alternative sentence by claiming that appellate counsel had rendered ineffective assistance on multiple grounds, including by failing to challenge the trial court's imposition of "multiple sentences." App. p. 208. The post-conviction court later found that appellate counsel had rendered ineffective assistance on several grounds and that Ben-Yisrayl had been prejudiced with respect to the imposition of the death penalty, which it set aside. The post-conviction court did not address the issue of alternative sentences and ordered that the 150-year sentence, including the sixty-year sentence for murder, "remain as imposed." App. p. 277.

In his post-conviction appellate brief, Ben-Yisrayl challenged the post-conviction court's adoption of what it alleged was the trial court's "inadequate and improper sentencing order." App. p. 346. The Supreme Court did not address this claim, concluding that challenges to the sentencing order were moot, given its remand order on the penalty proceedings. Ben-Yisrayl I, 738 N.E.2d at 268 n. 12.

The death penalty proceedings did not conclude until January 18, 2008, when the trial court dismissed the State's request for imposition of the death penalty. Following the trial court's amendment of the abstract of judgment to reflect the dismissal of the death penalty and adoption of the term of years, Ben-Yisrayl filed a timely motion to correct error.

Ben-Yisrayl challenged his term-of-years sentence in the post-conviction proceedings as soon as his death penalty was set aside, and the Supreme Court dismissed this challenge as moot given its remand order with respect to proceedings which did not conclude until 2008. We therefore cannot say that Ben-Yisrayl waived his challenge to this sentence. Similarly, because the Supreme Court did not address Ben-Yisrayl's sentencing challenges on their merits, ...