Floyd v. State

• Decision Date: 30 December 1994
• Docket Number: 45S03-9412-PC-1283,Nos. 49S02-9412-PC-1282,s. 49S02-9412-PC-1282
• Citation: 650 N.E.2d 28
• Court: Indiana Supreme Court
• Parties: Anthony FLOYD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Corinthian MANLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Wallace D. BRISCOE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. John W. DEARMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Wilbert HATCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Donald MARLETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Steven ROBY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

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650 N.E.2d 28

Anthony FLOYD, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Corinthian MANLEY, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Wallace D. BRISCOE, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

John W. DEARMAN, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Wilbert HATCHER, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Donald MARLETT, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Steven ROBY, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

Nos. 49S02-9412-PC-1282, 45S03-9412-PC-1283.

Supreme Court of Indiana.

Dec. 30, 1994.

Wallace D. Briscoe, Plainfield, pro se.

Robert C. Perry, Indianapolis, for John W. Dearman.

Anthony Floyd, Westville, pro se.

Susan K. Carpenter, Public Defender, John T. Ribble, Deputy Public Defender, Indianapolis, for Wilbert Hatcher.

Susan K. Carpenter, Public Defender, Stephen T. Owens, Deputy Public Defender, Indianapolis, for Corinthian Manley.

Susan K. Carpenter, Public Defender, Jodi Uebelhack, Deputy Public Defender, Indianapolis, for Donald Marlett.

Steven Roby, Michigan City, pro se.

Pamela F. Carter, Atty. Gen., Geoff Davis, Dana Childress-Jones, Joseph F. Pieters, Deputy Atty. Gen., Suzann Weber Lupton, Deputy Attys. Gen., for the state.

ON PETITIONS TO TRANSFER

SULLIVAN, Justice.

We address several issues concerning the authority of a court officer to enter a final appealable order and the way in which reviewing courts should handle challenges to such an officer's authority on appeal.In doing so, we comment on the failure of trial courts validly to appoint judges pro tempore and attempt to resolve several divisions that have emerged in the Court of Appeals.

I.

The Indiana Constitution requires that judicial acts be performed only by judges.Ind. Const. art. 7, § 1;State ex rel. Smith v. Starke Cir. Ct.(1981), 275 Ind. 483, 496, 417 N.E.2d 1115, 1122.See alsoShoultz v. McPheeters(1881), 79 Ind. 373, 375;State ex rel. Hovey v. Noble(1889), 118 Ind. 350, 352, 21 N.E. 244, 245.Thus, only a duly elected or appointed judge of the court or a duly appointed judge pro tempore or special judge may enter an appealable final judgment, including a criminal sentence.When a court official who is not a duly elected or appointed judge of the court purports to make a final order or judgment, that decision is a nullity.Rivera v. State (1992), Ind.App., 601 N.E.2d 445, 446.See alsoState ex rel. Smith, 275 Ind. at 496, 417 N.E.2d at 1122;Shoultz, 79 Ind. at 375.

In each of these cases, one of the issues is whether the trial court order or judgment on appeal is invalid by virtue of having been entered by a court officer who allegedly was not duly appointed.¹

A.

In the case of Briscoe v. State, appellantWallace D. Briscoe was tried and convicted of Burglary before, and sentenced by, Master Commissioner ²Andrew J. Fogle.The record shows that Fogle was referred to throughout as a "Special Judge" but in fact had never been appointed as a special judge in accordance with Indiana Rule of Criminal Procedure 13.³However, Fogle was appointed as judge pro tempore by the court's regular judge, the Hon. Webster L. Brewer, both on the date of trial, September 17, 1992, and on the date of sentencing, October 14, 1992.The record shows that Briscoe made no objection to being tried or sentenced by Fogle.Briscoe appeals his conviction and sentence on grounds that Fogle was an improperly appointed judge and therefore lacked authority and jurisdiction over him.The Court of Appeals rejected Briscoe's argument and affirmed the conviction and sentence.Briscoe v. State (1994), Ind.App., 639 N.E.2d 1058(mem.).Briscoe petitions for transfer.

B.

In the cases of Floyd v. State, Hatcher v. State, Manley v. State, and Marlett v. State, appellants all seek post-conviction relief on grounds that either their convictions or sentences were entered by court officers who allegedly were not duly appointed.

Master Commissioner Jay B. Haggerty conducted the guilty plea hearing on appellantAnthony Floyd's plea agreement admitting guilt to Conspiracy to Deal in Cocaine and, on September 15, 1989, sentenced Floyd.The State acknowledges that a Master Commissioner has no authority to enter a final appealable order unless sitting as a judge pro tempore or special judge.The State makes no claim that any such appointment was made.Floyd raised no objection to the authority of Haggerty until he filed his petition for post-conviction relief.The trial court denied the petition, but the Court of Appeals reversed, holding that no appealable judgment had been entered.Floyd v. State (1994), Ind.App., 635 N.E.2d 230(mem.).The Statepetitions for transfer.

Master Commissioner Allen Smith, Jr. conducted the guilty plea hearing on appellantWilbert Hatcher's plea agreement admitting guilt to Robbery and, on January 22, 1985, sentenced Hatcher.The parties dispute whether Smith was a duly appointed judge pro tempore or acting only as a Master Commissioner.Hatcher raised no objection to the authority of Smith until this case, an amended second petition for post-conviction relief.The trial court denied his petition, and the Court of Appeals affirmed that denial.Hatcher v. State (1994), Ind.App., 637 N.E.2d 1388(mem.).Hatcher petitions for transfer.

Commissioner T.C. Stenhouse conducted the guilty plea hearing on appellant Corinthian Manley's plea agreement admitting guilt to Theft on September 26, 1968, and then sentenced Manley.The record does not reveal whether Stenhouse was appointed special judge or judge pro tempore.Manley raised no objection to the authority of Stenhouse until filing a petition for post-conviction relief.The trial court denied his petition but the Court of Appeals reversed, holding that no appealable judgment had been entered.Manley v. State (1994), Ind.App., 638 N.E.2d 888(mem.).The Statepetitions for transfer.

Judge pro tempore Jay B. Haggerty conducted a bench trial of appellantDonald Marlett and found him guilty of Battery and also found him to be an Habitual Offender.On October 19, 1989, about one month after trial, Haggerty sentenced Marlett.While Marlett acknowledges that Haggerty was duly appointed to serve as a judge pro tempore at the time of trial, Marlett contends Haggerty lacked authority thereafter to impose sentence.Marlett raised no objection to the authority of Haggerty until filing his petition for post-conviction relief.The trial court denied the petition for post-conviction relief and the Court of Appeals affirmed that denial.The Court of Appeals rejected Marlett's argument and affirmed the conviction and sentence.Marlett v. State (1994), Ind.App., 639 N.E.2d 1056(mem.).Marlett petitions for transfer.

C.

In the cases of Dearman v. State and Roby v. State, appellants acknowledge that a validly appointed judge pro tempore presided at trial but contend that because the judge pro tempore appointment expired prior to the date of sentencing, the latter had no authority to enter sentence because he was not a judge on the date sentencing occurred.

In the case of Dearman v. State, appellantJohn W. Dearman was tried and sentenced by Master Commissioner Fogle.The record shows that Fogle was referred to throughout as a "Special Judge" but in fact had never been appointed as a special judge in accordance with Rule of Criminal Procedure 13.Fogle was appointed as judge pro tempore by the court's regular judge, the Hon. Webster L. Brewer, on the dates of trial, January 30, 1992, to February 1, 1992, but not on the date of sentencing, April 15, 1992.Dearman appealed, arguing that Fogle had no authority to enter sentence because he was not a judge on the date sentencing occurred.The Court of Appeals rejected Dearman's argument and affirmed the conviction and sentence.Dearman v. State (1994), Ind.App., 632 N.E.2d 1156.Dearman petitions for transfer.

Judge pro tempore Judge James E. Bielefeld presided over the jury trial of defendantSteven Roby, who was charged with Murder.Bielefeld was appointed as judge pro tempore by the court's regular judge, the Hon. James E. Letsinger, on the dates of trial, July 31, 1984, and August 1, 1984, but not on the date of sentencing, August 14, 1984.Roby appeals, arguing that Bielefeld had no jurisdiction to enter sentence because he was not a judge on the date sentencing occurred.The Court of Appeals rejected Roby's argument and affirmed the conviction and sentence.Roby v. State (1994), Ind.App., 635 N.E.2d 1163(mem.)(2-1 decision, Sullivan, J., dissenting).Roby petitions for transfer.

II.

Appellant Briscoe contends that the court officer who conducted the trial and sentencing was an improperly appointed judge and therefore lacked authority and jurisdiction over him.In other cases, e.g., Boushehry v. State (1993), Ind.App., 622 N.E.2d 212, aff'd on rehearing, (1993), 626 N.E.2d 497, trans. denied, the Court of Appeals has raised sua sponte the issue of the authority of a court officer to enter a final appealable order.

The proper inquiry for a reviewing court when faced with a challenge to the authority and jurisdiction of a court officer to enter a final appealable order is first to ascertain whether the challenge was properly made in the trial court so as to preserve the issue for appeal.In Survance v. State (1984), Ind., 465 N.E.2d 1076, defendant was convicted of Conspiracy to Commit Arson.On appeal, defendant argued that no proper appointment of the judge presiding at trial as judge pro tempore was made prior to trial.We stated that an improperly appointed judge pro tempore could present a problem compelling reversal but that such error was not "fundamental."Id. at 1081.We went on to observe:

Any objections to the authority of an attorney appointed to try a cause must be made at the time when he assumes to act or they will be deemed waived on appeal.Gordy v....