Goodwin v. State, 372A157

• Decision Date: 01 September 1972
• Docket Number: No. 372A157,372A157
• Citation: 153 Ind.App. 203,286 N.E.2d 703
• Parties: Burdell GOODWIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 703

286 N.E.2d 703

153 Ind.App. 203

Burdell GOODWIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 372A157.

Court of Appeals of Indiana, Third District.

Sept. 1, 1972.

Harriette Bailey Conn, Public Defender, Paul J. Baldoni, Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

STATON, Judge.

Burdell Goodwin, age twenty years, waived arraignment on February 11, 1963 and entered his plea of guilty to entering to commit a felony. The affidavit charged him with first degree burglary. He was placed on probation. Several months later, he violated his probation and was sentenced to the Indiana State Reformatory for a term of not less than one nor more than ten years. He filed a petition for post conviction relief on May 5, 1971 which was denied. Only one question of error is presented by this appeal: Should Burdell Goodwin's sentence be corrected to a term of not less than one nor more than five years?

In our opinion which follows, we reverse the trial court's judgment with instructions to enter a corrected judgment for not less than one nor more than five years. There is only one indeterminate sentence for entering to commit a felony. This sentence is a term of not less than one year nor more than five years. Entering to commit a felony is a lesser includable offense of second degree burglary, which provides for a sentence of not less than two nor more than five years.

An indeterminate sentence is for the Maximum time prescribed by statute. Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498; Heathe v. State (1971), Ind., 274 N.E.2d 697. Burdell Goodwin pleaded guilty to entering to commit a felony. The penalty for entering to commit a felony is one to five years since it is a lesser includable offense of second degree burglary. Assessing a penalty of not less than one nor more than ten years for the offense of entering to commit a felony is error. The ten year maximum is greater than the maximum of five years for second degree burglary. Assessing such a penalty violates the Eighth Amendment to the United States Constitution and Art. 1, § 16 of the Indiana Constitution. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815.

In Heathe v. State, supra, our Supreme Court stated:

'The State in this case makes no attack on these prior rulings, but attempts to limit their application to the situation, as in Hobbs, where the higher offense was in fact charged and the defendant was found guilty of a lesser included offense. However, such a limitation would lead to the result that the statute in question would have two different maximum sentences depending on the manner in which the State proceeded to trial, and would allow the State to systematically increase the Maximum penalty for second degree burglary by charging the lesser included offense of entering with intent to commit a felony in every case. We cannot condone such a result. Entering to commit a felony in this case is a lesser included offense of second degree burglary whether or not second degree burglary was charged in the case. The constitutional mandate that 'all penalties shall be proportioned to the nature of the offense' requires that the maximum for a lesser offense be less than the maximum for a higher offense. This same result is mandated by the Constitution of the United States. Dembowski v. State, supra; Willoughby v. Phend, 301 F.Supp. 644 (N.D.Ind.1969).' 274 N.E.2d at 698--699.

In Easton v. State (1972), Ind., 280 N.E.2d 307, 311, our Supreme Court stated in an opinion written by Justice Prentice in which the entire court concurred:

'The defendant's sentence, however, is excessive and unconstitutional. We have previously held that the sentence for a lesser included offense may not exceed that provided for the greater offense. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815; Hobbs v. State (1969), 250 Ind. 195, 252 N.E.2d 498. We have also previously determined that an indeterminate sentence is for the maximum time prescribed by the statute. Hobbs v. State (supra). Entering to commit a felony is a lesser included offense of second degree burglary under the test set forth in Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405, recently reaffirmed in Hobbs v. State (supra)...