Gee v. State
| Decision Date | 07 May 1987 |
| Docket Number | No. 785,785 |
| Citation | 508 N.E.2d 787 |
| Parties | Clifford GEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 295 PS. |
| Court | Indiana Supreme Court |
Clifford Gee, pro se.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
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 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.
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.
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 mitigating circumstances. Ind.Code Ann. Sec. 35-50-2-4 (Burns 1985). The savings clause, Indiana Acts 1977, P.L. 340, Sec. 150, provides that an offense committed before October 1, 1977, shall be prosecuted and remains punishable under the repealed law. The defendant, if found guilty, shall be sentenced under the statute in force at the time the offense was committed. Bonner v. State (1979), 271 Ind. 388, 393, 392 N.E.2d 1169, 1171, reh. denied. Thus, Gee was properly sentenced under the law in effect on August 12, 1977, even though his sentencing occurred after the new penal code became effective. Morris v. State (1980), 273 Ind. 614, 624, 406 N.E.2d 1187, 1194; Holder v. State (1979), 272 Ind. 52, 56-7, 396 N.E.2d 112, 115.
Gee argues that application of the savings clause results in vindictive justice in violation of the Indiana Constitution, Art. 1, Sec. 18. However, "... the application of prior law to those who committed crimes and were convicted and sentenced under that prior law does not constitute vindictive justice." Vicory v. State (1980) 272 Ind. 683, 687, 400 N.E.2d 1380, 1383. A savings clause is an enactment of the Legislature and, as such, is cloaked with the presumption of constitutionality which continues until rebutted. Sidle v. Majors (1976), 264 Ind. 206, 209, 341 N.E.2d 763, 766, reh. denied. Gee contends that Art. 1, Sec. 18, which provides that "[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice," mandates that he be re-sentenced in accordance with the new statute. However, in a case presenting an almost identical situation, this Court held:
When the Legislature decided in enacting the new criminal code that the penalties for some crimes should be modified or reduced, it chose to decide the question of when and under what circumstances the new penalties shall be given. Its decision to meet this issue must be regarded as highly appropriate. Appellant is, of course, correct in asserting that in doing so, the Legislature relied heavily upon the broad, general and long-standing rule of law that the law in effect at the time a crime is committed should be controlling. Watford v. State, supra. The time of a crime is selected as an act of the free will by the offender. Penal consequences are frozen as of that event. Alteration of them through subsequent events, both the uncontrollable and the manipulable, by the offender or the State, is foreclosed. The rule has decided marks of neutrality and fairness. Its use by the Legislature for this purpose cannot be fairly characterized as rendering the penal code without reformative purpose.
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