Brown v. State

• Decision Date: 10 February 1975
• Docket Number: No. 174S11,174S11
• Parties: Willie BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 708

322 N.E.2d 708

262 Ind. 629

Willie BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 174S11.

Supreme Court of Indiana.

Feb. 10, 1975.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Russell D. Millbranth, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Brown appeals here from a dismissal of his petition made pursuant to PC. Rule 1. He was convicted in the year 1969 of second degree murder upon a trial by jury on a charge of first degree murder. In 1973, he filed this petition which he has termed a Verified Petition for Time Served Prior to Judgment of Sentence. In this petition, he seeks to have the time he spent in jail awaiting trial and sentencing credited to his life sentence.

The State filed a motion to dismiss the petition. The trial judge, after hearing the argument of counsel, and without a plenary hearing, denied the petition pursuant to the authority granted by § 4(e) ¹ of the rule.

Appellant contends that he is entitled to the benefit to such credit provided for in IC1971, 35-8-2.5-1, being Burns § 9-1828, which provides:

'When sentencing any person convicted of a crime the sentencing court shall order that the sentenced person be given credit toward service of his sentence for any days spent in confinement as a result of the criminal charge for which sentence is imposed or as a result of the conduct on which such charge is based. The court shall specify in its order of commitment the number of days credit to which the person sentenced is entitled pursuant to this section.'

This statute first became effective on February 1, 1972, and consequently, the State argued in its motion to dismiss, that appellant was not entitled to the benefits of the statute since he was convicted and sentenced prior to that effective date. The trial court sustained the State's contention.

Appellant recognizes that this statutory provision has recently been construed by this Court in Fender v. Lash (1973), Ind., 304 N.E.2d 209, and that in that case this Court held that the General Assembly, in this enactment, did not intend to extend the credit benefit to persons convicted and sentenced prior to the effective date of the statute. However, moving beyond the statutory claim made in Fender v. Lash, supra, appellant contended in his postconviction petition that the General Assembly, in failing to include him in the class of those to receive such credit, denied him the equal protection of the laws guaranteed by the Fourteenth Amendment to the U.S. Constitution and Art. 1, § 23, of the Indiana Constitution. Appellant supports his claim by pointing out that he is denied the benefit of the statute simply because of the date of his conviction and sentence, and concludes that the date of conviction and sentence bears no rational relation to the purpose and policy of the statute and consequently the statute illegally discriminates against those such as appellant who may have been convicted and sentenced prior to that date. Appellant would have us conclude that the equal protection guarantee of both Constitutions require that the benefits of this statute be extended to him.

This statute does create two classes, namely a class consisting of those convicted prior to the effective date and those convicted thereafter. Only those convicted thereafter are entitled to the benefit of the statute. The fundamental right to be at liberty is affected by the decision to deny retroactive application to this statute. Under these circumstances we deem it necessary that the decision to deny credit for pre-trial confinement to those convicted prior to the effective day of the act be shown to further a compelling governmental interest. Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Sumpter v. State (1974), Ind., 306 N.E.2d 95; Sturrup v. Mahan (1974), Ind., 305 N.E.2d 877.

The State identifies the interest which supports this date classification as being that which the State has in its exercise of the authority to define crimes and penalties. However, this interest of the State is not drawn into play by this statute. No crime is defined, and no penalty for any crime is set, thereby. What is involved here is a recognition that pre-sentence confinement is a form of punishment and should serve to satisfy a criminal judgment.

The State next argues that the appellant, having been first charged with first degree murder and therefore not likely to have been released on bail, is not in the class disadvantaged by this statute. We cannot accept this reasoning, because the statute does not utilize the cause of pre-trial detention for any purpose. Thus pre-trial detention may result from a defendant's decision not to post bail, or a defendant's indigence, or in the case of a first degree murder charge, from the existence of strong evidence, and yet in each such instance, the defendant, upon sentencing, is entitled to a credit for such detention.

The State next claims that the credit for pre-trial detention provided for in § 9-1828, supra, does not apply when the sentence is for life, and since appellant's sentence was for life, he has no equal protection claim by reason of the non-retroactive application of this statute. Under the terms of this statute, it applies at the time of sentencing to 'any person convicted of a crime.' Clearly appellant was convicted of a crime. In subsequent §§ 9-1830 and 9-1831, the manner of crediting time in cases involving indeterminate and determinate sentences is dealt with, however, we do not consider them to evince a legislative intent to deny credit where the sentence is life and therefore neither indeterminate nor determinate. Statutes such as this are intended to ameliorate the practical and legal mischief discussed in this opinion and should be construed so as to fully suppress that mischief.

The State has been unable to identify or allude to any interest which could be characterized as compelling. It has even been unable to suggest what rational relation might exist between the date of sentence and the objectives of this statute. In In re...