Hardley v. State

• Citation: 905 N.E.2d 399
• Decision Date: 05 May 2009
• Docket Number: No. 49S05-0905-CR-209.,49S05-0905-CR-209.
• Parties: Samuel HARDLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

905 N.E.2d 399

Samuel HARDLEY, Appellant, v. STATE of Indiana, Appellee.

No. 49S05-0905-CR-209.

Supreme Court of Indiana.

May 5, 2009.

Ruth Johnson, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael G. Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0801-CR-29

DICKSON, Justice.

To address conflicting opinions from the Court of Appeals and to consider the import of recent decisions of this Court, we grant transfer and hold that the State may challenge the legality of a criminal sentence by appeal without first filing a motion to correct erroneous sentence, and that such appeal need not be commenced within thirty days of the sentencing judgment.

The defendant was convicted and sentenced for three criminal offenses¹: class D felony Theft,² class D felony Criminal Confinement,³ and class A misdemeanor Battery.⁴ His appeal presented claims of insufficient evidence and double jeopardy. Among the arguments made in the State's reply brief was that the trial court had erroneously imposed concurrent sentences in contravention of statute. As to the State's contention, the Court of Appeals, asserting the doctrine of fundamental error, refused to require such claim to be preserved by contemporaneous objection at trial, declined to require the State to challenge the allegedly erroneous sentence within thirty days of final judgment, and declared "[w]e cannot ignore an illegal sentence, even if the State did fail to properly preserve the issue." Hardley v. State, 893 N.E.2d 1140, 1145 (Ind.Ct.App.2008).

The defendant sought transfer, in part arguing that the State waived any right to challenge the sentence because it failed to raise an objection in the trial court, did not file a motion to correct an erroneous sentence, and did not raise the issue until cross-appeal. The defendant's view mirrors the dissent of Senior Judge Patrick Sullivan, who urged that, because the sentence was not facially erroneous and thus not subject to a motion to correct erroneous sentence, the State had only thirty days to challenge the sentence. Id. at 1148-49 (Sullivan, Sr. J., dissenting). This position is consistent with Hoggatt v. State, 805 N.E.2d 1281, 1284 (Ind.Ct.App.2004), aff'd on reh'g, 810 N.E.2d 737 (Ind.Ct.Ap. 2004), trans. denied. The Court of Appeals majority expressly declined to follow Hoggatt. Hardley, 893 N.E.2d at 1146. We accept jurisdiction solely to address this issue.

The Hoggatt court noted that a motion to correct an erroneous sentence is available only when the sentencing defect is apparent on the face of the sentencing judgment, applying this Court's decision in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). Finding that the claimed defect required resort to extrinsic matters, Hoggatt concluded that the State could raise its claim but only on direct appeal, for which the thirty-day deadline had passed, and thus "the State is left without a remedy to challenge Hoggatt's sentence." Hoggatt, 805 N.E.2d at 1284. For reasons explained below, we disapprove of this limitation.

The legislature has enumerated several situations in which criminal appeals by the State "may be taken," but the list does not include challenging an erroneous sentence. Ind.Code § 35-38-4-2.⁵ In McCullough v. State, 900 N.E.2d 745 (Ind.2009), we held that the State "may not by appeal or cross-appeal ... initiate a challenge to a trial court's criminal sentence that is within the court's sentencing authority," but noted a recognized exception for sentences falling outside statutory authority, for which "the State may raise such a claim for the first time on appeal." Id. at 750 (citing Stephens v. State, 818 N.E.2d 936, 939-40 (Ind.2004)). Our opinion in Stephens noted that a long line of cases permit the State to raise such a claim initially on appeal. 818 N.E.2d at 939.⁶ Most of these cases employed the "fundamental error" rationale, but this was not expressly endorsed by McCullough or Stephens.

The fundamental error doctrine serves, in extraordinary circumstances, to permit appellate consideration of a claim of trial error even though there has been a failure to make a proper contemporaneous objection during the course of a trial, which failure would ordinarily result in procedural default as to the claimed error. The doctrine applies to those errors deemed "so prejudicial to the rights of a defendant as to make a fair trial impossible." Barany v. State, 658 N.E.2d 60, 64 (Ind.1995). By its very nature, the doctrine exists to protect the fair trial rights of the defendant, not the State. And while sound judicial policy requires permitting the State to challenge an illegal sentence, the fundamental error doctrine is an inapposite rationale.

Notwithstanding the limited statutory list of permissible criminal appeals by the State and the inappropriateness of fundamental error as a rationale, a separate additional source of statutory authority empowers the State to challenge illegal sentences. As to erroneous sentences, the legislature has also specifically authorized:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

Ind.Code § 35-38-1-15. The plain language of this provision, with its requirement of notice to a defendant, is not limited only to defendants, but by clear implication is also available to the State.

This statute was narrowly confined in Robinson to apply to sentencing judgments that are facially erroneous. 805 N.E.2d at 786-87. We held that a motion seeking relief under this statute

may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority. Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence.

Id. at 787. This restrictive interpretation resulted from our analysis emphasizing that, while a motion to correct an erroneous sentence was available as an alternate remedy, it was best for defendants to assert claims of erroneous sentence by direct appeal or by petition for post-conviction relief. Id. at 786-87. But Robinson had no occasion to analyze the application of § 35-38-1-15 to the State, which has constrained access to direct appeal and post-conviction remedies. See supra n. 5; Indiana Post-Conviction Rules PC 1, Section 1(a) (limiting the remedy to "[a]ny person who has been convicted of, or sentenced for, a crime"), and PC 2, Section 1(a) (limiting the remedy to "[a]n eligible defendant"). To limit the State's use of a motion to correct erroneous sentence to facially erroneous sentencing judgments effectively circumscribes the State from seeking to correct illegal sentences imposed by a trial court contrary to statutory authorization. We thus decline to extend Robinson's "facially erroneous" requirement to restrict efforts by the State to challenge an illegal sentence.

This brings us to consider the procedural formalities needed when the State uses this legislative authorization to challenge an illegal sentence. In the present case the State's sentencing challenge was not advanced by means of a "motion to correct sentence" described in Indiana Code § 35-38-1-15. Rather, the State's reply brief merely asserts that, because two of the offenses for which the defendant was convicted were committed while he was on recognizance for other charges, the sentences imposed for these two offenses must be served consecutively, citing Indiana Code § 35-50-1-2(d)(2)(A).⁷ The State thus did not file a motion to correct erroneous sentence with the trial court, but only raised the issue in responding to the defendant's appeal. This is understandable, however, in light of clear precedent emphasized in Stephens that the State may challenge an illegal sentence "for the first time on appeal." 818 N.E.2d at 939.

The purposes and procedures of the statutory framework for correcting an erroneous sentence support permitting the State's appellate claim of sentence illegality as a substantial equivalent to the motion identified in the statute. The statutory procedure does not compel a fact-finding hearing, nor does it specifically direct whether a motion to correct an erroneous sentence is to be filed with the trial court or in an appellate proceeding.

Considering the clear unacceptability of sentences that plainly exceed or otherwise violate statutory authority and the fact that the legislature has authorized the State to challenge erroneous sentences, we hold that sound policy and judicial economy favor permitting the State to present claims of illegal sentence on appeal when the issue is a pure question of law that does not require resort to any evidence outside the appellate record.⁸ Allowing the State to challenge an illegal sentence on appeal is within the legislative intendment of Indiana Code § 35-38-1-15, and such a challenge is the substantial equivalent of a statutory motion to correct erroneous sentence.

Furthermore, we find that the timing requirements for the initiation of an appeal from final judgment under Indiana Appellate Rule 9(A) do not apply to require the State to initiate an appellate illegal sentence challenge within thirty days of a final judgment. There is no requirement that a motion to correct a sentence under § 35-38-1-15 must be made within thirty days of the final judgment. Hoggatt, 805 N.E.2d at 1284; see also Thompson v. State, 270 Ind. 677, 679, 389 N.E.2d 274, 276 (Ind.1979); Niece v....