Floyd v. State, No. 684S248

• Docket Nº: No. 684S248
• Citation: 503 N.E.2d 390
• Case Date: January 28, 1987
• Court: Supreme Court of Indiana

Page 390

503 N.E.2d 390 Michael J. FLOYD, Appellant,
v.
STATE of Indiana, Appellee. No. 684S248. Supreme Court of Indiana. Jan. 28, 1987.
Rehearing Denied March 30, 1987.

Page 391

Loren J. Comstock, Lohmeier, Reed & Comstock, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

A jury trial resulted in a conviction of Conspiracy, a Class A felony, for which appellant received forty (40) years, Rape, a Class A felony, for which he received fifty (50) years, and Confinement, a Class B felony, for which he received twenty (20) years, all sentences to be served consecutively.

The facts are: In the early morning of July 13, 1983, the victim left her summer job at Stone City Products in Bedford, Indiana. When she reached her car, in the parking lot, she discovered Ron Deckard in the back. She had previously met Deckard and conversed with him. On the occasion in question, she engaged Deckard in conversation for approximately twenty minutes. During this time, Deckard asked the victim to drive to Road 446 to meet some friends. She refused to do this because of the late hour; however, she did agree to take him to another location.

As she was driving with Deckard in the car beside her, he produced a gun and grabbed her around the neck. He then forced her to drive to the Road 446 location. During this drive, she noticed that another automobile was following them. When they arrived at Road 446, Deckard required her to stop the car. He then handcuffed the victim and made her lie face down on the seat. Deckard went to the other automobile which had stopped behind them and talked to the person in that automobile. Deckard then came back and placed a toboggan mask over the victim's head and put her in the trunk of the automobile. Deckard then drove the car, advising the victim that they were going to Kentucky.

Shortly thereafter he stopped the car, put the victim in the back seat and covered her with a blanket. After driving a little farther, he stopped, gagged her with a bandanna and again put her in the trunk. A short time later he stopped the car, removed the victim from the trunk, took off her pants and underwear and pushed her down on the blanket. During this period, the victim could not see because of the toboggan mask over her head.

At that point, another person came to where the victim was lying on the blanket. She heard him unzip his trousers as he got on top of her. When this person talked to Deckard, she recognized his voice as that of appellant whom she had met on a previous occasion. As appellant started to rape the victim, Deckard clicked the gun and told her to cooperate, after which she testified she did not resist. Following the rape, Deckard drove the victim a short distance, gave her back the keys to her car and told her they were in Kentucky; however, the victim recognized that she was on old State Road 37 and drove home where she called the Sheriff.

The victim was examined by Dr. Gareth Morgan who found evidence of sperm in her vagina. The gun used was a BB gun

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which looked like a forty-five pistol. Deckard told the victim that it was in fact a forty-five pistol.

The first question we will dispose of is a question raised by appellant for the first time in his reply brief. He claims the State was late in filing appellee's brief and for that reason the State's brief should not be considered by this Court. However, appellant cites only Ind.R.App.P. 8.1(A), which provides that an appellee's brief shall be filed within thirty days of the filing of appellant's brief. He neglects to cite Ind.R.App.P. 12(D) which provides, among other things, when briefs are served upon opposing counsel by mail, the time for response is automatically extended for a period of five days from the date of mailing. Appellant's proof of service of a copy of his brief in this case states that he served a copy of the brief by mailing it by first-class mail on the 19th day of October 1984 to the Attorney General.

An examination of the 1984 calendar shows the thirty day period for the filing of the State's brief would have started to run on October 24. Thus the time for the filing of the State's brief expired at midnight on the 23rd of November. The Court takes judicial knowledge that this was the day after Thanksgiving and that the State House was closed for business on that day; therefore, under Ind.R.App.P. 13(4) the State's time for filing its brief would automatically be extended to November 26, 1984. An examination of the records in this case shows that the State's brief was in fact filed at 2:00 p.m. on November 26, 1984. We therefore hold the State's brief was timely filed and should be fully considered by this Court.

Appellant claims the trial court's sentence, which equaled one hundred and ten (110) years, lacks proportionality, is excessive and constitutes cruel and unusual punishment. Ind.R.App.Rev.Sen. 2 provides as follows:

"(1) The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.

(2) A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed."

Ind. Code Sec. 35-50-1-2(a) provides in part:

"[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively."

The trial judge in this case first...