Funk v. State

• Decision Date: 04 August 1999
• Docket Number: No. 79A04-9712-CR-527.,79A04-9712-CR-527.
• Citation: 714 N.E.2d 746
• Parties: Alva L. FUNK, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

714 N.E.2d 746

Alva L. FUNK, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A04-9712-CR-527.

Court of Appeals of Indiana.

August 4, 1999.

Rehearing Denied September 13, 1999.

Alva Leslie Funk, Michigan City, Indiana, Appellant Pro Se.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant Alva L. Funk (Funk), appearing pro se, appeals the trial court's denial of his motion for correction of erroneous sentence and its denial of his motion to set an evidentiary hearing thereon. His challenge involves two charges and convictions for Intimidation, as Class C felonies.

We affirm.

Funk presents two issues for consideration:

(1) Whether the trial court committed reversible error by denying Funk's motion for correction of erroneous sentence, where the charging information, jury verdict forms and abstract of judgment all referred to the non-existent crime of intimidation while armed with a deadly weapon.

(2) Whether the trial court was required to schedule an evidentiary hearing regarding Funk's motion for correction of erroneous sentence.

The underlying facts of the instant case were set forth in a memorandum decision, Funk v. State, 643 N.E.2d 1003 (1994), issued following Appellant's direct appeal of his criminal conviction. We need not restate those facts.¹ Funk filed a motion for correction of erroneous sentence, pursuant to I.C. XX-XX-X-XX (Burns Code Ed. Repl.1998), on February 9, 1995.² The State responded to the motion on March 8, 1995, claiming the title of the charge in the information was a mere "scrivener's error" and that a lesser included offense was not at issue. Record at 36. On March 13, 1995, the trial court entered an order denying Funk's "motion to modify sentence." Record at 38.

Funk thereafter moved for and was granted leave to withdraw, without prejudice, his motion for correction. A second motion for correction of erroneous sentence was submitted. On June 20, 1997, the State responded anew.

The trial court denied Funk's motion for correction of erroneous sentence on September 8, 1997.³ In part, the court reasoned as follows:

"[Funk] admits in his own pleadings that the pertinent part of the charging information, including where the State of Indiana alleges that the crime was committed while drawing and using a deadly weapon is true. The language tracks the statute. [Funk] appears to be arguing about what amounts to be a scrivener's error in the title of the information. The Court does not find that the scrivener's error is so egregious that it amounts to fundamental error. The record reflects, including the Court's instructions regarding intimidation, that the Court advised the jury as to what elements the State of Indiana must prove beyond a reasonable doubt in order to convict the petitioner of intimidation.

It is equally true, from the nature of this case, that the evidence reflects that the petitioner was not simply armed with a weapon, but rather drew and used a handgun in the commission of that offense. The testimony included facts that the petitioner pointed a weapon at Officers Kohne and Wallace, as well as other officers, during the commission of these crimes. The evidence shows that the petitioner was indeed guilty of the crime of intimidation and a scrivener's error does not altar [sic] that fact. The verdict forms used by the Court set forth the crime of intimidation while armed which was the method by which the jury could designate which count they were finding the petitioner guilty. It appears from the record that the jury relied on the elements of the counts as opposed to the title based upon the instructions of the Court. Absent strong evidence to the contrary, jury's [sic] are presumed to follow the Court's instructions.

This court finds no fundamental error issue. Even if it were an issue, this is a matter that should have been raised at trial and then later on in the petitioner's appeal. This issue was not raised, therefore, it is waived." Record at 94-95.

On March 10, 1998, Funk filed a motion to reconsider the ruling.⁴

On March 21, 1995, Funk filed a motion to set hearing and order to produce petitioner. This motion was denied on March 27, 1995. Following formal withdraw of his counsel, Funk filed a second motion requesting an evidentiary hearing on April 18, 1995. He filed several subsequent motions requesting an evidentiary hearing. Request for evidentiary hearing was denied on February 10, 1998. On February 25, 1998, Funk requested relief from the order of denial, citing various state and federal constitutional provisions and Ind. Trial Rule 60(A).⁵

Funk filed a petition for post-conviction relief on November 5, 1997. The State submitted its response in opposition to the petition on November 20, 1997. A hearing on the petition was scheduled for February 27, 1998. Upon Funk's motion, the trial court granted Appellant an extension of time in which to file the record of proceedings. In so doing, the hearing was set aside, with Funk being directed to request another hearing date at the time he filed the record. The record does not reflect that Funk requested another hearing.

Upon appeal, Funk challenges his conviction and sentencing in Counts I and III of the charges against him, Intimidation While Armed With A Deadly Weapon, as Class C felonies. He asserts that no such crime existed under Indiana law, and, thus, his due process rights were violated. The statute under which Funk was convicted in both counts, I.C. XX-XX-X-X (Burns Code Ed. Repl.1998), states in relevant part:

"(a) A person who communicates a threat to another person, with the intent that:

(1) The other person engage in conduct against his will; or

(2) The other person be placed in fear of retaliation for a prior lawful act;

commits intimidation, a Class A misdemeanor.

(b) However, the offense is a:

* * *

(2) Class C felony if, while committing it, the person draws or uses a deadly weapon."

Funk is correct that the statute does not make it an offense to be "armed" with a deadly weapon. To this extent, the title of the information, the jury verdict forms and the abstract of judgment all incorrectly label the crime as "Intimidation While Armed With A Deadly Weapon." See Record at 65-69 (emphasis supplied).

I. Motion for Correction of Erroneous Sentence

A. Fundamental Error

Funk essentially claims the variance constitutes fundamental error which should be reversed. We disagree. A petition for post-conviction relief, not use of a motion to correct erroneous sentence, is the preferred procedure for presenting a sentencing error. Jones v. State (1989) Ind., 544 N.E.2d 492, 496. However, a motion to correct erroneous sentence may be used to correct those errors "where the sentence is erroneous on its face." Id. A facially defective sentence is one "that violates express statutory authority at the time the sentence is pronounced." Poore v. State (1993) Ind. App., 613 N.E.2d 478, 480 (emphasis in original). A motion to correct erroneous sentence is proper where the error may be deemed "fundamental." Jones, supra at 496. "Such fundamental error would include illegal sentences in violation of express statutory authority or an erroneous interpretation of a penalty provision of a statute." Id.

Although incorrect, references by the prosecutor and the trial court to the offense of intimidation while armed with a deadly weapon did not constitute fundamental error. This is so, because Funk's conviction and sentence for intimidation as a Class C felony fell within the express statutory authority granted by I.C. XX-XX-X-X. The label applied to the charges may have been facially incorrect, but the substance of the intimidation charges was proper.⁶ The charging information reflected all of the statutory elements for committing intimidation as a Class C felony. Further, the evidence presented at trial supported the determination that Funk committed the offenses as described in the charging information.

Funk cites various cases supporting his contention that he was charged and sentenced for a non-existent crime, which constituted fundamental error. In Young v. State (1967) 249 Ind. 286, 231 N.E.2d 797, the defendant was convicted of assault and battery with intent to commit the felony of manslaughter. The Indiana Supreme Court noted that Indiana law provided for no such offense, because intent to commit a "felonious homicide" was specifically excluded from the statute in question. Id. at 799. The trial court did modify the judgment, replacing the intended felony of "manslaughter" with that of "aggravated assault." Id. However, the Supreme Court observed that, "we cannot ignore a fundamental error apparent on the face of the record. . . . The judgment rendered does not follow any legal authority, for the sentence of one (1) to ten (10) years under the modified judgment can in no way be justified under any statute." Id. (citation omitted).

In Coleman v. State (1975) 264 Ind. 64, 339 N.E.2d 51, disapproved of in part by Elmore v. State (1978) 269 Ind. 532, 382 N.E.2d 893, 898,

the defendant was convicted of, among other things, "armed kidnaping." Our Supreme Court found the conviction invalid, stating that "kidnaping is not encompassed within the armed felony statute. The penalty for kidnaping is life imprisonment, a penalty greater than that provided under the armed felony statute." Id. at 56. The Supreme Court further commented, "[t]o include kidnaping within the purview of the [armed felony] statute would be to reduce the penalty rather than to increase it—an absurdity which we do not ascribe to the legislative intent." Id. The Court reaffirmed its position in Moon v. State (1977) 267 Ind. 27, 366 N.E.2d 1168, noting that, "[i]f kidnaping is not encompassed within the armed felony statute, . . . then no such offense as `armed kidnaping' exists. That being so, a conviction...