Hensley v. State

• Decision Date: 01 October 1986
• Docket Number: No. 86S00-8603-CR-241,86S00-8603-CR-241
• Citation: 497 N.E.2d 1053
• Parties: Raymond HENSLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1053

497 N.E.2d 1053

Raymond HENSLEY, Appellant, v. STATE of Indiana, Appellee.

No. 86S00-8603-CR-241.

Supreme Court of Indiana.

Oct. 1, 1986.

Rehearing Denied Dec. 2, 1986.

Dennis L. Woods, Fowler, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Raymond Hensley was found guilty by a jury in the Warren Circuit Court of the crime of theft and was also found to be an habitual offender. The trial court sentenced him to a term of two (2) years on the theft conviction, enhanced by thirty (30) years on the habitual offender finding, for a total term of thirty-two (32) years.

Appellant presents five issues for our consideration in this direct appeal:

1. improper sentencing in the habitual offender finding;

2. unreasonable sentence imposed;

3. sufficiency of the evidence;

4. improper verdict forms; and

5. prosecutorial misconduct.

The evidence showed that in the fall of 1984, during the night or early morning, Appellant Raymond Hensley, together with Robert Stoker and one or two other persons, went to the residence of J. Hall Crone, north of Attica, Indiana, and siphoned gasoline from a truck at that residence. The gasoline was siphoned into a can and poured into Hensley's automobile.

I

Appellant urges us to find the trial court erred in sentencing him on Count II, Habitual Offender, pursuant to Ind.Code Sec. 35-50-2-8. It is his position that the enactment and promulgation of Ind.Code Sec. 35-50-2-7.1, as an ameliorative statute, requires the trial court to sentence Appellant to a lesser enhanced period. Ind.Code Sec. 35-50-2-8 provides that all persons found to be habitual offenders are to have their sentence enhanced by a term of thirty (30) years. In 1985 the Legislature enacted Ind.Code Sec. 35-50-2-7.1, to be effective September 1, 1985, providing that where the defendant was found guilty of a class D felony, and the unrelated prior felonies supporting the habitual offender finding were also class D felonies, lesser penalties could be given, the maximum of which would be eight (8) years. Appellant Hensley was charged on March 18, 1985 for an offense allegedly committed on or about October 26, 1984. He had prior unrelated class D felony convictions for crimes committed by him from 1978 to February, 1984. His trial commenced on September 12, 1985, and he was found to be an habitual offender on September 13, 1985, and sentenced on September 25, 1985. He now claims he should have been sentenced under the newly enacted ameliorative statute, Ind.Code Sec. 35-50-2-7.1.

Sec. 3 of the newly enacted statute contains the following saving clause:

"SECTION 3. (a) The addition of I.C. 35-50-2-7.1 and the amendment of I.C. 35-50-2-8 by this act do not affect any:

(1) rights or liabilities accrued;

(2) penalties incurred; or

(3) proceedings begun;

before September 1, 1985. The rights, liabilities, and proceedings are continued and punishments, penalties, or forfeitures shall be imposed and enforced under I.C. 35-50-2-8 as if this act had not been enacted.

(b) If all of the felonies that are relied upon for sentencing a person as an habitual offender under I.C. 35-50-2-8 are felonies that were committed before September 1, 1985, the felonies shall be prosecuted and remain punishable under I.C. 35-50-2-8 as if this act had not been enacted."

Indiana P.L. 328-1985, Sec. 3.

The Legislature's intent is directly and clearly expressed. It is not uncertain or ambiguous as to its application. It excludes any felonies committed before the effective date of September 1, 1985. The Legislature's intent therefore does not require any construction or interpretation. It, in fact, places us under a duty to enforce the statute according to its obvious meaning. Parsley v. State (1980), 273 Ind. 46, 48, 401 N.E.2d 1360, 1361, cert. denied 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79. The trial court properly sentenced Appellant pursuant to the provisions of I.C. Sec. 35-50-2-8.

II

Appellant's next contention is that the sentence of thirty-two years for the offense of theft in light of the circumstances of the underlying felony and the Appellant's history, consisting of what he refers to as non-violent petty thefts, was so disproportionate to the offense that it constitutes unconstitutionally disproportionate and/or cruel and unusual punishment. Appellant concedes that, although Art. 1, Sec. 16 of the Indiana Constitution prohibits sentencing a defendant to a penalty not proportionate to the offense, it has been held by this Court that the sentencing of an habitual offender to an enhanced sentence is not, per se, unconstitutional. Davis v. State (1985) Ind., 472 N.E.2d 922, 925; Wells v. State (1982), Ind., 441 N.E.2d 1366, 1368. In Traylor v. State (1981), Ind., 420 N.E.2d 887, 890, this Court held: "We affirm the rule that a sentence imposed pursuant to a proper habitual offender finding is neither disproportionate nor cruel and unusual." In Rummel v. Estelle (1980), 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, the United States Supreme Court affirmed the imposition of a life sentence upon Defendant Rummel under a Texas recidivist law for his having been thrice convicted of property related felonies. Defendant Rummel had been imprisoned twice following felony convictions in Texas courts for fraudulent use of a credit card and passing a forged instrument. The underlying felony for which Rummel was sentenced was felony theft for obtaining money by false pretenses. The United States Supreme Court held that the imposition of the life sentence pursuant to the recidivist statute did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Id. at 285, 63 L.Ed.2d at 397, 100 S.Ct. at 1145.

Appellant urges us to find that his sentence is unreasonable pursuant to our rules for the appellate review of sentences. Those rules provide that we will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender. Such sentence is not manifestly unreasonable unless no reasonable person could find the sentence appropriate to the particular offense and offender for which the sentence was imposed. Rules for the Appellate Review of Sentences Rule 2. Indiana Rules of Court, (West,1986). Appellant's conviction was for stealing gasoline from a truck. This is a class D felony and for it he received a term of two years imprisonment. The thirty years was an enhancement of that sentence based on the fact that Appellant had committed two other thefts going back to 1978 and as recent as 1984. Under these circumstances we cannot say that the sentence was so disproportionate that no reasonable person could find it appropriate to the particular offense and offender.

III

Appellant claims there was insufficient evidence introduced at trial to sustain the jury's verdict finding him guilty of theft since there was not proof beyond a reasonable doubt that the gasoline was stolen from J. Hall Crone's property. We review this challenge to sufficiency as any other and that is; we do not weigh or judge credibility but rather, examine the evidence most favorable to the State together with all reasonable inferences which can be drawn therefrom. If there is substantial evidence of probative value to support the conclusion that defendant is guilty beyond a reasonable doubt, the verdict will not be set aside. Gatewood v. State (1982), Ind., 430 N.E.2d 781, 782. In Williams v. State (1983), Ind.App., 451 N.E.2d 700, 701, the Court of Appeals held: "Although the name of the owner or possessor of stolen property is a material allegation, that allegation may be proven by circumstantial evidence." This is a correct statement of the law. In the instant case, Robert Stoker testified that he, Hensley, and two other persons went to the property identified as Mr. Crone's on October 26, 1984, and committed the crime charged. Stoker identified the property by its location and by identifying pictures of it. He also identified a picture of the Ford Bronco truck that was in the driveway and from which the gasoline was taken. His testimony was supported by Sheriff James T. Brier. Brier testified over Hensley's objection that on October 26, 1984, at about 10:00 a.m., he received a telephone call from a person known to him as J. Hall Crone, who reported that gasoline had been taken from his truck parked in a shed, and from his Ford Bronco, which was sitting in front of his home in the driveway. Crone further reported to Brier that the caps were gone from the gasoline tanks of both vehicles. This testimony was admitted by the court, " ... not to prove the matter but for the fact that the report was made and the nature of that report." Brier further testified, however, that he was personally acquainted with Crone and had known him for forty (40) years, during which time he had become familiar with Crone's property, including the Bronco truck. Brier identified, again over Hensley's objection, thirteen photographs which depicted Crone's property, including his house, garage, tool shed, another shed, the Bronco vehicle, another truck and tractor, and an automobile. These photographs were admitted over Hensley's objection. They also were used by Stoker to identify the scene. There also was testimony by Brier that Crone was known to be out of town at the time of the trial and probably did not even know the trial was going on. The Sheriff testified that no investigation was made at the time the theft was reported to him, and it was not until January 5, 1985, when Stoker gave his statement to Brier, that Brier was able to follow up on Crone's theft report made on October 26, 1984. There was, therefore, sufficient evidence here, although circumstantial, that Crone owned the gasoline that was taken. Stoker's testimony sufficiently established the...