Cottingham v. State

• Decision Date: 21 July 1981
• Docket Number: No. 679S152,679S152
• Citation: 424 N.E.2d 105
• Parties: Henry Wesley COTTINGHAM, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 105

424 N.E.2d 105

Henry Wesley COTTINGHAM, Appellant, v. STATE of Indiana, Appellee.

No. 679S152.

Supreme Court of Indiana.

July 21, 1981.

Rehearing Denied October 9, 1981.

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Cottingham was convicted of armed robbery in the Allen Superior Court and was sentenced to twenty-five (25) years in prison on March 16, 1973. Upon appeal to this Court, his conviction was affirmed. Cottingham v. State, (1973) 261 Ind. 346, 303 N.E.2d 268. After filing a petition for post-conviction relief, appellant was allowed to file a belated motion to correct errors. Cottingham v. State, (1977) 266 Ind. 64, 360 N.E.2d 189. The denial of his petition, which had alleged incompetency of counsel, was affirmed in Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. Another trial court hearing was held on appellant's motion for post-conviction relief under Ind. R.P.C. 1; such motion was denied in March, 1979. The present appeal follows from that denial.

The sole question presented by appellant for review is whether the 1977 change in the Penal Code, which, among other things, awarded good time credit for presentence incarceration, should be applied retroactively. The State raises an additional issue: namely, whether appellant failed to follow the proper procedure for post-conviction relief.

In Dunn v. Jenkins, (1978) 268 Ind. 478, 377 N.E.2d 868, petitioners sought modification of their sentences pursuant to the provisions of the new good time statute. This Court held that the trial court had correctly treated the petitions for habeas corpus as being "in fact petitions for post-conviction relief pursuant to Indiana PC. 1, § 1(a)(5)...." Id. at 479, 377 N.E.2d at 870. Appellant here also seeks modification of his sentence pursuant to the new good time statute.

Appellant was sentenced to twenty-five years in prison on March 16, 1973. From the time of his arrest, up to and including the day of sentencing, appellant was confined in the county jail for 213 days. The trial judge credited the 213 days to appellant's sentence. In October, 1977, the Penal Code was amended so that a person imprisoned for a crime or confined awaiting trial or sentencing is entitled to good time credit. (Ind. Code § 35-50-6-4, as added by Acts 1976, P.L. 148, § 8; 1977, P.L. 340, § 135; 1979 P.L. 120, § 12). There are three classifications for awarding good time credit: class I earns one (1) day of credit time for each day a person is imprisoned or confined; class II earns one (1) day of credit time for every two (2) days a person is imprisoned or confined; and class III earns no credit time. Ind. Code § 35-50-6-3 (Burns 1979). Appellant wants the new good time statute applied retroactively so that he is awarded good time credit based upon one of the available classes and the 213 days he was confined prior to sentencing.

Appellant cites Brown v. State, (1975) 262 Ind. 629, 322 N.E.2d 708 in support of his request. Brown dealt with the 1972 change in the criminal code that credited any time spent in confinement, prior to sentencing, towards service of sentence. Ind. Code § 35-8-2.5-1 et seq. (Burns 1972), repealed by Acts 1978, P.L. 2, § 3555. In Brown, this Court sustained an equal protection challenge by holding that persons serving time prior to the enactment of the statute were entitled to credit for time spent in jail awaiting trial, as well as persons who received their sentences after passage of the statute. Appellant argues that failure to retroactively apply the new good time statute to persons in his situation is also a denial of equal protection. We disagree.

There are major differences between Brown and the case at bar. First of all, an inmate has no constitutional right to receive good time credit. Wolff v. McDonnell, (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935; Dunn v. Jenkins, (1978) 268 Ind. 478, 377 N.E.2d 868. This differs greatly from the constitutional right to "liberty" found in Brown. This Court felt that presentence confinement was a form of punishment and should serve to satisfy a criminal judgment. Brown, 262 Ind. at 633, 322 N.E.2d at 711. The statute in Brown created two classes: one class consisting of persons convicted prior to the effective date and the other class consisting of persons convicted after the effective date. The fundamental right to be at liberty was affected by the decision to deny retroactive application of the statute unless the State could show a compelling governmental interest which the State failed to do. Id., citing Shapiro v. Thompson, (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Sumpter v. State, (1974) 261 Ind. 471, 306 N.E.2d 95. In addition, the legislature had been entirely silent as to any retroactive effect of the statute in Brown and had merely made a general statement of public policy in giving credit for time spent in jail awaiting trial. Dunn, supra, 268 Ind. at 488, 377 N.E.2d at 875.

In the case at bar we have an entirely different situation. Initially no good time credit was awarded for the amount of days imprisoned until after sentencing. In contrast to the legislative silence as to retroactive effect in Brown, the legislature stated in Acts 1977, P.L. 340, § 149 at 1610:

"(e) Neither this Act nor Acts 1976, P.L. 148 affects the amount of good time a person has earned under diminution of sentence statutes in effect before October 1, 1977. After September 30, 1977, a person imprisoned under statutes in effect before October 1, 1977, is entitled to diminution of his sentence according to the credit time class to which he is assigned by this SECTION or to which he may be...