Browning v. State, No. 80A02-9004-CR-213

Docket NºNo. 80A02-9004-CR-213
Citation576 N.E.2d 1315
Case DateAugust 22, 1991
CourtCourt of Appeals of Indiana

Page 1315

576 N.E.2d 1315
Kim BROWNING, Appellant (Defendant),
v.
STATE of Indiana, Appellee (Plaintiff).
No. 80A02-9004-CR-213.
Court of Appeals of Indiana,
Second District.
Aug. 22, 1991.

Page 1316

J.J. Paul, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

ON REHEARING

BUCHANAN, Judge.

In our original memorandum decision, filed May 23, 1991, we affirmed the trial court's summary denial of defendant-appellant Kim Browning's (Browning) petition to file a belated praecipe. 571 N.E.2d 1346. 1 We concluded that the trial court's denial was proper because Browning was not entitled to a direct appeal from his guilty plea. His allegations of error did not constitute claims that his sentences were erroneous on their face.

On rehearing Browning claims that we applied the wrong standard and asks that we consider his arguments on their merits. For reasons that will hereinafter appear we will consider his arguments on their merits, and we affirm the sentences imposed by the trial court.

The facts most favorable to the trial court's judgment reveal that on September 21, 1987, Browning was charged with two counts of child molesting, 2 as class C felonies. On September 22, 1987, Browning was charged by a separate information with three additional counts of child molesting, as class B felonies. 3 The victims in the two charges were different.

Browning pled guilty to both counts of child molesting as class C felonies, and he pled guilty to two of the three counts of child molesting as class B felonies. On April 27, 1988, Browning was sentenced on both cases. He received two consecutive five-year sentences on the C felony charges and two consecutive thirteen-year sentences on the B felony charges. Three years of each of the thirteen-year sentences were suspended, and Browning was placed on probation for each of those three-year terms. The sentences in the two

Page 1317

cases were ordered to be served concurrently, giving Browning an aggregate executed sentence of twenty years, and six years of probation upon the completion of his executed term.

On September 16, 1988, Browning filed a petition for the modification of his sentence, which was denied by the trial court on November 17, 1988. Over one year later, on November 29, 1989, Browning filed a petition to file a belated praecipe in order to pursue a direct appeal of his sentence. That petition was denied on December 11, 1989, and this appeal ensued.

Browning raises two issues for our consideration:

1. Whether the trial court properly denied his petition to file a belated praecipe?

2. Whether his sentences were manifestly unreasonable?

I.

We initially decided that the trial court had properly denied Browning's petition because he was not entitled to a direct appeal from his guilty plea to allege his sentences were manifestly unreasonable. We relied upon our supreme court's decision in Jones v. State (1989), Ind., 544 N.E.2d 492, for the proposition that, when determining whether a sentence is erroneous on its face, the reviewing court will not consider issues concerning how the trial court weighed various factors when imposing sentence.

Browning argues that this standard applies only when the reviewing court is considering the denial of a motion to correct an erroneous sentence in accordance with Ind.Code 35-38-1-15 (1988).

The supreme court has limited the scope of IC 35-38-1-15 because the preferred method of raising sentencing errors is a petition for post-conviction relief. See Jones, supra; Gee v. State (1987), Ind., 508 N.E.2d 787. This court has held that an exception to the general rule that a defendant may not pursue a direct appeal from a guilty plea is when "there is an error in the imposition of a sentence on the face of the record...." Woods v. State (1981), Ind.App., 426 N.E.2d 107, 110, citing Weyls v. State (1977), 266 Ind. 301, 362 N.E.2d 481. A reading of Weyls, however, does not establish that direct appeals from sentences imposed pursuant to guilty pleas are limited to errors "on the face of the record" in the same sense that an appeal from the denial of a motion to correct an erroneous sentence is "limited to those instances where the sentence is erroneous on its face." Jones, supra at 496. In Perry v. State (1983), Ind., 447 N.E.2d 599, the supreme court considered a direct appeal from a guilty plea in which the defendant argued the trial court had not properly weighed the aggravating and mitigating circumstances when it imposed sentence. Therefore, we must conclude that the supreme court has not limited the scope of a defendant's arguments in a direct appeal from a sentence imposed pursuant to a guilty plea as it has when the defendant appeals from the denial of a motion to correct an erroneous sentence.

Thompson v. State (1979), 270 Ind. 677, 389 N.E.2d 274, discussed the three alternate avenues available to defendants for the raising of sentencing errors. This decision "was drafted partly in response to some confusion over what procedure to follow and whether a trial court should treat an unverified petition, purportedly under Ind.R.P.C. 1, Sec. 1(a)(3) and attacking only the sentence, as a motion to correct sentence pursuant to the statute." Jones, supra at 496. This view was taken:

"Of course, the defendant may also file, within sixty days of sentencing, a motion to correct errors and designate an erroneous sentence as the complained of error. See Ind.R.Tr.P. 59(A)(7) and 59(A)(9). Weyls v. State, (1977) 266 Ind. 301, 362 N.E.2d 481. But there is nothing in the statute which should preclude a defendant from raising the issue of an erroneous sentence at a time after sixty days have elapsed. The statute does require that the motion to correct erroneous sentence be in writing and be supported specifically. These requirements are not unlike those contemplated within Ind.R.Tr.P. 59."

Page 1318

Thompson, supra 270 Ind. at 679, 389 N.E.2d at 276. Because of the similarity between motions to correct erroneous sentences and arguments made on direct appeal that a sentence is erroneous, there is an appealing gloss to the argument that the same standard should apply to both. But, as the supreme court has not yet made that policy decision, we cannot so restrict a defendant's use of a direct appeal from a sentence imposed pursuant to a guilty plea.

Because any error that occurred by the summary denial of...

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6 practice notes
  • Tumulty v. State, No. 48A02-9409-CR-539
    • United States
    • Indiana Court of Appeals of Indiana
    • February 28, 1995
    ...Our appellate courts have in fact done so. Perry v. State (1983) Ind., 447 N.E.2d 599; Browning v. State (1991) 2d Dist. Ind.App., 576 N.E.2d 1315. The majority makes eminent sense when it states that our Supreme Court should allow direct appeals of a guilty plea "where warranted"......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Browning v. State, 576 N.E.2d 1315, 1317 (Ind.Ct.App.1991); Powell v. State, 574 N.E.2d 331, 333 (Ind.Ct.App. 1991). This emphasis that post-conviction proceedings are "pref......
  • Taylor v. State, No. 03A01-0203-PC-99.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 2002
    ...v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000); Funk v. State, 714 N.E.2d 746, 747 (Ind.Ct.App.1999), trans. denied; Browning v. State, 576 N.E.2d 1315, 1317 7. Taylor claims that any conclusion that his claim has been procedurally defaulted would violate his rights to equal protection. Ho......
  • Payne v. State, No. 49A02-9608-CR-482
    • United States
    • Indiana Court of Appeals of Indiana
    • November 18, 1997
    ...find that the sentence was appropriate for the crime committed and the nature of the perpetrator. Browning v. State (1991) Ind.App., 576 N.E.2d 1315, 1319, op. on To facilitate appellate review, the trial court must state its reasoning with regard to the sentence that it has imposed if more......
  • Request a trial to view additional results
6 cases
  • Tumulty v. State, No. 48A02-9409-CR-539
    • United States
    • Indiana Court of Appeals of Indiana
    • February 28, 1995
    ...Our appellate courts have in fact done so. Perry v. State (1983) Ind., 447 N.E.2d 599; Browning v. State (1991) 2d Dist. Ind.App., 576 N.E.2d 1315. The majority makes eminent sense when it states that our Supreme Court should allow direct appeals of a guilty plea "where warranted"......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Browning v. State, 576 N.E.2d 1315, 1317 (Ind.Ct.App.1991); Powell v. State, 574 N.E.2d 331, 333 (Ind.Ct.App. 1991). This emphasis that post-conviction proceedings are "pref......
  • Taylor v. State, No. 03A01-0203-PC-99.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 2002
    ...v. State, 730 N.E.2d 222, 224 (Ind.Ct.App.2000); Funk v. State, 714 N.E.2d 746, 747 (Ind.Ct.App.1999), trans. denied; Browning v. State, 576 N.E.2d 1315, 1317 7. Taylor claims that any conclusion that his claim has been procedurally defaulted would violate his rights to equal protection. Ho......
  • Payne v. State, No. 49A02-9608-CR-482
    • United States
    • Indiana Court of Appeals of Indiana
    • November 18, 1997
    ...find that the sentence was appropriate for the crime committed and the nature of the perpetrator. Browning v. State (1991) Ind.App., 576 N.E.2d 1315, 1319, op. on To facilitate appellate review, the trial court must state its reasoning with regard to the sentence that it has imposed if more......
  • Request a trial to view additional results

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