Golden v. State

• Citation: 553 N.E.2d 1219
• Decision Date: 07 May 1990
• Docket Number: No. 19A01-8911-PC-474,19A01-8911-PC-474
• Parties: Robert GOLDEN, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 1219

553 N.E.2d 1219

Robert GOLDEN, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.

No. 19A01-8911-PC-474.

Court of Appeals of Indiana First District.

May 7, 1990.

Transfer Denied July 6, 1990.

Richard Culley, Indianapolis, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Margarett L. Knight, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

BAKER, Judge.

Petitioner-appellant, Robert Golden (Golden), appeals the denial of his petition for post-conviction relief. ¹ We affirm the denial of post-conviction relief. We sua sponte reverse the sentence and remand for resentencing.

After a jury trial, Golden was found guilty on two counts of forgery, each a Class C felony, ² on August 24, 1983. On September 21, 1983, the jury found Golden to be an habitual offender. ³ On September 22, 1983, the trial court sentenced Golden to a term of five years imprisonment on each of the forgery convictions. The court also sentenced Golden to an additional 30 years on each forgery count because of the habitual offender conviction. The trial court ordered the sentences be served concurrently, and gave Golden an aggregate sentence of 30 years imprisonment.

Our supreme court affirmed Golden's conviction on direct appeal in Golden v. State (1985), Ind., 485 N.E.2d 51. Golden filed a pro se petition for post-conviction relief on August 4, 1986. After Golden subsequently retained private counsel, the trial court held hearings on Golden's petition on January 25 and Feburary 27, 1989. On July 27, 1989, the trial court denied Golden's petition. This appeal followed.

In this appeal, Golden presents two issues for our review: first, whether there was sufficient evidence to find Golden was an habitual offender; and second, whether the trial court's sentencing scheme subjected Golden to double jeopardy in violation of the fifth amendment of the United States Constitution and art. I, Sec. 14 of the constitution of the State of Indiana.

Golden first argues there was insufficient evidence to support the habitual offender conviction. The State introduced evidence that Golden had been convicted of three prior felonies, two of which were contained in a single plea agreement. One of the convictions in the plea agreement had been vacated prior to the habitual offender proceeding. Golden now argues the other conviction was also vacated because IND. CODE 35-35-3-3(d) binds a trial court to the terms of plea agreements it accepts. We note initially that this argument could have been raised on direct appeal. It is well settled that post-conviction proceedings are not a substitute for direct appeal. A petitioner may not raise issues in a post-conviction proceeding which could have been raised on direct appeal. Combs v. State (1989), Ind., 537 N.E.2d 1177, 1179. At the post-conviction hearing, however, the State chose to respond to Golden's argument on its merits. Record at 162-165. Accordingly, we are compelled to respond to the merits as well. Id.

IND. CODE 35-35-3-3(d) exists to prohibit trial courts from increasing or decreasing sentences after accepting a plea agreement because both the defendant and the public benefit from expeditious resolution of criminal cases. Disney v. State (1982), Ind.App., 441 N.E.2d 489, 493; State ex rel. Goldsmith v. Marion County Superior Court (1981), 275 Ind. 545, 419 N.E.2d 109, 114. Here, the court that accepted the plea agreement did not alter Golden's sentence but set aside a conviction. The separate sentence for the remaining conviction under the plea agreement was never altered, the trial court remained bound to the plea agreement, and the conviction was properly before the habitual offender jury. ⁴ There was sufficient evidence to find Golden an habitual offender. Golden's only other reviewable argument ⁵ is that the trial court's sentencing scheme subjected him to double jeopardy.

At trial, Golden was convicted of two counts of forgery. He received a five-year sentence for each forgery conviction and two 30-year sentences for being an habitual offender. All the sentences were ordered to be served concurrently, with a total term of imprisonment of 30 years. This was an illegal sentence in two respects.

First, the facts leading to Golden's forgery convictions allow habitual offender enhancement on only one of the forgery sentences. Golden had received two checks from a neighbor for repair services he performed on her home. Each of the checks was to be for $50 but Golden added an extra zero to the sums so they appeared to be written for $500 apiece. ⁶ The forgeries stemmed from a single transaction and were intimately related with each other, both in content and in time.

While the State may use the same prior convictions to support two habitual offender convictions, the felonies underlying those two habitual offender convictions must be distinct and unrelated. Kelly v. State (1983), Ind., 452 N.E.2d 907; Williams v. State (1982), Ind., 430 N.E.2d 759, appeal dismissed, 459 U.S. 808, 103 S.Ct. 33, 74 L.Ed.2d 47, reh. denied, 459 U.S. 1059, 103 S.Ct. 479, 74 L.Ed.2d 626; see also Starks v. State (1988), Ind., 523 N.E.2d 735. Here, as we have noted, Golden's two forgery convictions were intimately related to one another. Accordingly, the trial court erred in fixing both forgery sentences with additional habitual offender sentences, and one of those habitual offender sentences must be vacated. ⁷

Second, the trial court erred by sentencing Golden to an aggregate term of 30 years imprisonment. IND. CODE 35-50-2-8 mandates trial courts to "sentence a person found to be an habitual criminal to an additional fixed term of thirty (30) years imprisonment to be added to the term of imprisonment imposed ..." for the underlying felony. The trial court lacked any discretion here. The legislature alone possesses the prerogative of fixing penalties for crimes. The broad discretion afforded trial courts in sentencing does not extend beyond statutorily prescribed limits. "[A] sentence which is contrary to, or violative of, the penalty mandated by the applicable statute is an illegal sentence." Niece v. State (1983), Ind.App., 456 N.E.2d 1081, 1083-84.

Golden correctly points out that the trial court's imposition of an additional sentence was also a violation of the double jeopardy clauses of both the Indiana and the United States Constitutions. As our supreme court has often stated, "[t]he status of being an habitual criminal does not establish a separate crime. It merely provides for the imposition of an enhanced penalty for the instant crime." Beesley v. State (1989), Ind., 533 N.E.2d 112, 113 (citing Henson v. State (1985), Ind., 467 N.E.2d 750, 752). Moreover,

[i]f the status of being an habitual offender were to be considered a separate crime, conviction would be unconsitutional as double jeopardy. However, the Indiana statute is not unconstitutional because it provides for an enhancement of the penalty for the instant crime because the defendant is found to be an habitual criminal. To punish for the status of habitual criminal would also violate the Eighth Amendment of the United States Constitution.

Pinkston v. State (1982), Ind., 436 N.E.2d 306.

Here, the trial court did exactly that which the double jeopardy clauses and IND. CODE 35-50-2-8 prohibit. It gave Golden an additional sentence (indeed, two additional sentences) for being an habitual offender. This it could not do. The trial court was within its discretion to give Golden concurrent presumptive sentences for the two forgery convictions. After that, however, it was required to enhance one of those sentences by 30 years, giving Golden a 35-year term of imprisonment. See Williams v. State (1989), Ind., 541 N.E.2d 921; Bowens v. State (1986), Ind., 496 N.E.2d 769; Wagner v. State (1984), Ind., 471 N.E.2d 669; Wilson v. State (1984), Ind., 465 N.E.2d 717; Johnson v. State (1984), Ind., 432 N.E.2d 1358. Accord, Baker v. Duckworth (7th Cir.1985), 752 F.2d 302, cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985) (interpreting IND. CODE 35-50-2-8).

Golden argues we cannot remand for resentencing because to do so would merely exacerbate the double jeopardy problem. He makes two specific arguments here. First, he has completed serving the five-year concurrent forgery sentences and has produced a certificate of final discharge from the Department of Correction. Record at 24, 141. Golden therefore reasons he has fulfilled his obligation to the state because the habitual offender sentences were illegal. He is mistaken. As Golden himself earlier argued, "the habitual offender statute does not set forth a separate offense." Appellant's Brief at 16. In the only other Indiana case addressing this question, this court stated:

If the statute were read to define a separate crime, its application would constitute a violation of the double jeopardy clause. Short v. State (1982), Ind., 443 N.E.2d 298, 301. Rather, the statute provides for the enhancement of a sentence imposed upon conviction for an underlying felony. [Edwards v. State (1985), Ind., 479 N.E.2d 541]. The trial court must specify the underlying felony to which the enhanced sentence applies where there are two or more underlying felonies; the enhancement is not a separate sentence which is to be served either consecutively or concurrently with another sentence. Plummer v. State (1985), Ind., 485 N.E.2d 1367; Wilson v. State (1984), Ind., 465 N.E.2d 717. Thus, although the habitual offender finding is made subsequent to conviction, the thirty year enhancement is an integral part of the sentence imposed for the felony conviction.

Williams v. State (1986), Ind.App., 494 N.E.2d 1001, 1003, trans. denied, cert. denied 481 U.S. 1054, 107 S.Ct. 2191, 95 L.Ed.2d 846 (emphasis added). There is no severability. Golden has not yet completed his sentence.

Second, Golden cites Ex parte Lange (1874), 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 for the proposition...