Gee v. State, No. 785

Docket NºNo. 785
Citation508 N.E.2d 787
Case DateMay 07, 1987
CourtSupreme Court of Indiana

Page 787

508 N.E.2d 787
Clifford GEE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 785 S 295 PS.
Supreme Court of Indiana.
May 7, 1987.
Rehearing Denied July 21, 1987.

Clifford Gee, pro se.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Clifford Gee was convicted by jury of inflicting physical injury in the commission of a robbery and was sentenced to life imprisonment. This Court affirmed his conviction. Gee v. State (1979), 271 Ind. 28, 389 N.E.2d 303. Gee then filed a Petition for Post-Conviction Relief, which was denied January 25, 1983. This Court again affirmed. Gee v. State (1984), Ind., 471 N.E.2d 1115. On March 14, 1985, Gee filed a pro se Motion to Correct Erroneous Sentence, which was denied. Gee now appeals the denial of that motion, raising three issues for our review:

1. whether the trial court had jurisdiction to try Gee;

Page 788

2. whether the trial court's denial of Gee's Motion to Correct Erroneous Sentence was contrary to law; and

3. whether the trial court denied Gee's constitutional right to the assistance of counsel.

We first note that Gee filed a Motion to Correct Erroneous Sentence under Ind.Code Sec. 35-38-1-15. While a defendant may use Ind.Code Sec. 35-38-1-15 as a method to seek correction of an erroneous sentence according to Thompson v. State (1979), 270 Ind. 677, 678-81, 389 N.E.2d 274, 276-77, reh. denied, the preferred procedure in raising the issues now before us is a petition for post-conviction relief.

I

Gee, for the first time, challenges the trial court's jurisdiction to try and convict him. He asserts that because he did not formally plead to the charge against him, the court was without jurisdiction. Gee made no objection to submitting to trial without formally pleading. Absent an objection to entering on the trial for lack of arraignment or plea, any error in the failure to be arraigned or to enter a plea to the charge is waived by the personal appearance of the defendant. Blanton v. State (1953), 233 Ind. 51, 54, 115 N.E.2d 122, 123. Further, this Court has held:

A judgment of conviction shall not be invalidated because of the failure of the record to show that the indictment or information was read to the defendant at arraignment or that the defendant entered a plea, unless the record shows that the defendant objected to entering upon the trial for lack of such arraignment or plea. (Emphasis added). Ind.Code Sec. 35-4.1.1.1(d) (now repealed).

Heartfield v. State (1984), Ind., 459 N.E.2d 33, 36. Gee was arraigned and waived formal reading of the charges. The cause was set for trial and pre-trial that day. In a pre-trial filing, Appellant indicated he was pleading not guilty. Appellant raised the lack of a formal plea for the first time on this appeal and has thus waived the issue.

II

Next Gee argues that the trial court erred in not applying the ameliorative sentencing provisions of Ind.Code Sec. 35-50-2-4. Gee contends that application of the savings clause, which denied him the ameliorative sentencing, results in vindictive justice in violation of the Indiana Constitution. Gee maintains he should have been sentenced under Ind.Code Sec. 35-50-2-4, which took effect October 1, 1977, because his sentencing did not occur until October 25, 1977.

On the day the crime occurred, August 12, 1977, the crime of inflicting injury in the course of a robbery was punishable by life imprisonment if the injury was inflicted with a firearm, bludgeon, or other deadly or dangerous weapon or instrument. Ind.Code Ann. Sec. 35-13-4-6 (repealed). The new penal code provides that this act is robbery which results in bodily injury, a class A felony, and carries a fixed term of imprisonment of thirty (30) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for...

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15 practice notes
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...as permitting application of changed legal standards "wherever constitutionally permissible"). 18. See Gee v. State, 508 N.E.2d 787, 789 (Ind. 1987) ("The savings clause . . . provides that an offense . . . shall be prosecuted and remains punishable under the statute in force......
  • E.P. v. Marion County Office of Family and Children, No. 49A05-9306-JV-235
    • United States
    • Indiana Court of Appeals of Indiana
    • July 20, 1995
    ...based on his or her economic status. In re Johnson (1981), Ind.App., 415 N.E.2d 108, 112, reh'g denied; Gee v. State (1987), Ind., 508 N.E.2d 787, reh'g denied. The trial court must then satisfy itself that the litigant does not have "sufficient means to prosecute or defend the action.......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...1243 (Ind.2000); Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991); Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989); Gee v. State, 508 N.E.2d 787, 788 (Ind.1987); Thompson, 270 Ind. at 679-80, 389 N.E.2d at 276. A trial court's ruling on a motion to correct sentence is subject to appeal......
  • State v. Alcorn, No. 49S00-9305-DP-585
    • United States
    • Indiana Supreme Court of Indiana
    • August 12, 1994
    ...523 N.E.2d 737, and that a saving clause is presumed to be constitutional until that presumption is rebutted. Gee v. State (1987), Ind., 508 N.E.2d 787. In addressing an equal protection challenge, we must first determine which level of scrutiny is applicable: the traditional "rational......
  • Request a trial to view additional results
15 cases
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...as permitting application of changed legal standards "wherever constitutionally permissible"). 18. See Gee v. State, 508 N.E.2d 787, 789 (Ind. 1987) ("The savings clause . . . provides that an offense . . . shall be prosecuted and remains punishable under the statute in force......
  • E.P. v. Marion County Office of Family and Children, No. 49A05-9306-JV-235
    • United States
    • Indiana Court of Appeals of Indiana
    • July 20, 1995
    ...based on his or her economic status. In re Johnson (1981), Ind.App., 415 N.E.2d 108, 112, reh'g denied; Gee v. State (1987), Ind., 508 N.E.2d 787, reh'g denied. The trial court must then satisfy itself that the litigant does not have "sufficient means to prosecute or defend the action.......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...1243 (Ind.2000); Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991); Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989); Gee v. State, 508 N.E.2d 787, 788 (Ind.1987); Thompson, 270 Ind. at 679-80, 389 N.E.2d at 276. A trial court's ruling on a motion to correct sentence is subject to appeal......
  • State v. Alcorn, No. 49S00-9305-DP-585
    • United States
    • Indiana Supreme Court of Indiana
    • August 12, 1994
    ...523 N.E.2d 737, and that a saving clause is presumed to be constitutional until that presumption is rebutted. Gee v. State (1987), Ind., 508 N.E.2d 787. In addressing an equal protection challenge, we must first determine which level of scrutiny is applicable: the traditional "rational......
  • Request a trial to view additional results

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