Dembowski v. State, 0--871

• Decision Date: 16 October 1968
• Docket Number: No. 0--871,0--871
• Citation: 251 Ind. 250,240 N.E.2d 815
• Parties: Stanley DEMBOWSKI, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

Page 815

240 N.E.2d 815

251 Ind. 250

Stanley DEMBOWSKI, Petitioner, v.STATE of Indiana, Respondent.

No. 0--871.

Supreme Court of Indiana.

Oct. 16, 1968.

Stanley Dembowski, pro se.

ON PETITION FOR REHEARING

LEWIS, Chief Justice.

Petitioner has filed with this Court, pursuant to Supreme Court Rule 2--22(1967), a petition for rehearing on an unpublished per curiam opinion rendered by this Court under date of September 22, 1967, and said petition for rehearing is hereby granted.

Petitioner claims that his ten (10) to twenty-five (25) year indeterminate sentence for the crime of Robbery is in violation of the Eighth Amendment of the United States Constitution, andArticle I, Section Sixteen (16) of the Indiana Constitution.Petitioner's challenge on the basis of these constitutional provisions is one of first impression for this Court, and in resolving this casewe have interpreted the statutory provision in question with a strong presumption of constitutionality.Upon a careful examination of the applicable law in this area, however, we make a favorable finding on petitioner's claim.

The Eighth Amendment of the United States Constitution provides:

'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'(emphasis added)

Article I, Section 16, of the Indiana Constitution requires that:

'Excessive bail shall not be required.Excessive fines shall not be imposed.Cruel and unusual punishments shall not be inflicted.All penalties shall be proportioned to the nature of the offense.'(emphasis added)

Petitioner was convicted of Robbery pursuant to Burns' Indiana Statutes, Anno., (1956 Repl.), § 10--4101, which states:

'Whoever takes from the person of another any article of value by violence or putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years. * * *'

Burns' Indiana Statutes, Anno., (1965 Supp.), § 10--4709, provides:

'Any person who being over sixteen (16) years of age, commits or attempts to commit either the crime of rape, robbery, bank robbery, or theft while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon, or while any other person present and aiding or assisting in committing or attempting to commit either of said crimes is armed with any of said weapons, shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten (10) years nor more than twenty (20) years, to be fixed by the court: * * *'

It should be noted that the punishment established for the commission of Armed Robbery is a ten (10) to twenty (20) year determinate sentence, and the punishment set by the legislature for the commission of Robbery is a ten (10) to twenty-five (25) years indeterminate sentence.Robbery then, at the very least, carries a sentence which is, on the face of the statutes five (5) years greater than the maximum sentence permitted for the commission of Armed Robbery.

From a literal reading of the provisions of Burns' § 10--4709(supra), the offense of Robbery while Armed would appear to be a distinct offense, with Robbery a separate and not included offense.This Court, however, has consistently ruled that Robbery is a lesser included offense of Armed Robbery, and that it is error for a defendant to be convicted of both offenses stemming from the same acts.Carter v. State(1951), 229 Ind. 205, 96 N.E.2d 273;Kokenes v. State(1938), 213 Ind. 476, 13 N.E.2d 524;Polson v. State(1893), 137 Ind. 519, 35 N.E. 907;Taylor v. State (1968), Ind., 236 N.E.2d 825.

The question petitioner raises for our determination, then, is whether the legislature has abused its Constitutional power to define criminal offenses and set penalties thereof, by providing a greater maximum punishment for a lesser included offense.We conclude that in so doing it has.

This Court has several times in recent years (seeTaylor v. State, supra) considered the constitutionality of the variance in sentencing between the Armed Robbery and Robbery statutes.It must be frankly stated, that while petitioner's contentions based on the Eighth AmendmentandArticle I, Section Sixteen (16) mandate of the Indiana Constitution are of first impression, we are reversing in part previous rulings rendered on this matter.In ruling that the ten (10) to twenty-five (25) year indeterminate sentence for the crime of Robbery is constitutionally invalid, it must be kept clear what we do not question.We affirm that it is a legislative and not judicial function to set the amount of punishment for a crime, within the constitutional limitations placed on that body.As pointed out in reference to the Indiana Constitutional provisions:

'* * * While fines and penalties should not be excessive, and must be proportioned to the nature of the offense, that does not mean that this Court can set aside a conviction and sentence, within the statute, merely because on the record it may seem severe. * * *'Blue v. State(1946), 224 Ind. 394, 400, 67 N.E.2d 377, 379.

We do not challenge the right of the prosecutor to seek conviction of a lesser included offense where the facts before the Court show the commission of a greater offense.Caudill v. State(1946), 224 Ind. 531, 69 N.E.2d 549.We in no way modify our decision on the constitutionality of a determinate v. indeterminate sentencing procedure.Taylor v. State(supra).We do hold, however, that helegislature may not, consistent with the commands of the State and Federal Constitutions, provide a punishment for a lesser included offense which is greater in years on the face of the statute than the greater offense.

The Eighth Amendment of the United States Constitution has rarely come before either this Court or the Supreme Court of the United States.The Amendment has, nevertheless, been 'incorporated' through the 'due process' clause of the Fourteenth Amendment so as to be applicable to the States.Gideon v. Wainright(1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799;Robinson v. State of California(1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758;Goss v. Bomar(1964, CA6 Tenn.), 337 F.2d 341.While the usual appeal to the Supreme Court of the United States invokes the Amendment's privilege against cruel and unusual punishment to prevent the execution of sentences which are literally 'cruel and unusual', such as torture...