Dotson v. State, 871S223

• Decision Date: 02 June 1972
• Docket Number: No. 871S223,871S223
• Parties: James Garfield DOTSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 812

282 N.E.2d 812

258 Ind. 581

James Garfield DOTSON, Appellant, v. STATE of Indiana, Appellee.

No. 871S223.

Supreme Court of Indiana.

June 2, 1972.

Harriette Bailey Conn, Public Defender of Ind., Paul J. Baldoni, Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty, Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This case is presented to us as an appeal from a denial of a Petition for Post-Conviction Relief filed in the St. Joseph County Superior Court.

Appellant has raised but one issue for our consideration, that being whether appellant's indeterminate sentence of not less than ten (10) nor more than twenty-five (25) years for the crime of Robbery by Putting in Fear, received on December 23, 1960, should be corrected nunc pro tunc to an indeterminate term of not less than ten (10) nor more than twenty (20) years or to a determinate term of ten (10) years.

On January 13, 1960, appellant was charged by affidavit with two counts; count one, Robbery by Putting in Fear, and count two, Automobile Banditry. Upon arraignment appellant entered a plea of not guilty on both counts. On December 23, 1960, the defendant in person and by counsel withdrew his plea of not guilty to count one, Robbery by Putting in Fear and entered a plea of guilty to that charge. The State then dismissed the Automobile Banditry charge. Appellant was sentenced to the Indiana State Reformatory for a term of not less than ten (10) nor more than twenty-five (25) years. This sentence was suspended by the court and the appellant was placed on probation for a period of five years. The following is a verbatim statement of the judgment:

'It is therefore, considered, ordered and adjudged by the court that the defendant, James Garfield Dotson, be and he hereby is declared guilty of the crime of Robbery by Putting in Fear, and that he be and hereby is sentenced to the custody of the Superintendent of the Indiana State Reformatory for a period of not less than ten or more than twenty-five years, and that he be and hereby is fined in the cost of the action herein laid out and expended, taxed at $_ _.'

'It is further considered, ordered and adjudged by the court that the above and foregoing prison sentence be and the same hereby is suspended, and that the defendant be and he hereby is placed on probation for a period of five years.

'It is further ordered by the court that the defendant be and he hereby is remanded to the custody of the sheriff until the costs and expense the County has had in returning the defendant to this jurisdiction are paid in full.

'It is further considered, ordered and adjudged by the court that the sureties on the defendant's bond be and they hereby are released and discharged.'

On November 29 1966, the court entered an order revoking appellant's suspended sentence since appellant had committed a violation of the rules of probation and ordered appellant to serve his sentence of ten to twenty-five years in the Indiana State Reformatory. On December 1, 1970, appellant filed a petition for Post-Conviction Relief alleging, inter alia, that his sentence of not less than ten nor more than twenty-five years was unconstitutional, in that it is violative of Article I, § 16 of the Indiana Constitution and the Eighth Amendment of the United States Constitution. The court granted appellant's petition and entered the following 'Conclusions of Law' and ordered a change in sentence as follows:

'CONCLUSIONS OF LAW'

'1. The Indiana Supreme Court has held that a sentence of not less than ten (10) nor more than twenty-five (25) years for the crime of Robbery is unconstitutional and should be corrected to a term of not less than ten (10) nor more than twenty (20) years.

'Woods v. State (1970) --- Ind. ---, 265 N.E.2d (244) 245.

'Sergeant v. State (1970) --- Ind. ---, 263 N.E.2d 525.

'McDougall v. State (1970) --- Ind. ---, 257 N.E.2d 674.

'Hobbs v. State (1969) 253 Ind. 195, 252 N.E.2d 498.

'Dembowski v. State (1968) 251 Ind. 250, 240 N.E.2d 815.

'IT IS, THEREFORE, ORDERED AND DECREED that defendant-movant's sentence of not less than ten (10), nore (sic) more than twenty-five (25) years for Robbery is corrected nunc pro tunc to a term of not less than ten (10) nor more than twenty (20) years.'

A Motion to Correct Errors was filed and overruled and on September 9, 1971, the court approved counsel's agreed statement of the proceedings pursuant to A.P. 7.2(C).

Appellant contends that the reduction in his sentence should have resulted in a determinate sentence of ten years flat because he argues, the statutes of Indiana have provided that 'good time' diminution of sentence requires that one serving a determinate sentence will receive a discharge while a person serving the same amount of time but on an indeterminate sentence will only be eligible for parole.

In support of his allegations appellant first quotes from the Indiana Constitution, Article I, § 16, which provides 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)

He next quotes from similar cases in support of the proposition that the punishment for a lesser included offense can not be greater than the punishment imposed for the greater offense. In appellant's particular case the penalty imposed for Robbery by Putting in Fear (indeterminate 10--25 years), may not be greater than the penalty imposed for Armed Robbery (determinate 10--20 years). It was in recognition of this principle that the lower court ordered the reduction of appellant's sentence from indeterminate ten to twenty-five years to indeterminate ten to twenty years. See Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815.

Appellant now arrives at the substance of his argument, that being that his modified indeterminate sentence of not less than ten nor more than twenty years, is per se greater than the maximum determinate penalty of twenty years for Armed Robbery, as provided in Acts of 1929, ch. 55, § 1, as found in Burns' Ind. Stat. Ann. (1956 Repl.) § 10--4709, IC 1971, 35--12--1--1. He states that the Supreme Court in past cases dealing with the differences between determinate and indeterminate have based their holdings on an unfounded legal assumption, to wit: that both a determinate and an indeterminate sentence permit parole, while in fact they do not. Acts of 1955, ch. 160, § 1, as...