Hill v. State

• Decision Date: 02 June 1992
• Docket Number: No. 45S00-9103-CR-211,45S00-9103-CR-211
• Citation: 592 N.E.2d 1229
• Parties: Calvin HILL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1229

592 N.E.2d 1229

Calvin HILL, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-9103-CR-211.

Supreme Court of Indiana.

June 2, 1992.

As Amended June 8, 1992.

Marce Gonzales, Jr., Appellate Div., Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant and his codefendant, Nathan Minniefield, of Robbery, a Class A felony; in addition, appellant was found to be a habitual offender. They received sentences of thirty-five (35) years and forty (40) years, respectively; with appellant's thirty-year habitual enhancement, he received a total sentence of sixty-five (65) years. Their convictions, however, were reversed by this Court on direct appeal. Minniefield v. State (1989), Ind., 539 N.E.2d 464. Nevertheless, upon retrial, they again were found guilty of the same crime and received the same sentences. Our mandatory direct appellate jurisdiction over criminal appeals meanwhile having been restricted to those convictions with sentences greater than fifty (50) years, see Indiana Constitution, art. 7, Sec. 4; see also Ind. Appellate Rule 4, Minniefield's conviction has been appealed to, and affirmed by, the Court of Appeals. Minniefield v. State (1991), Ind.App., 569 N.E.2d 734. Hence only Hill's appeal is presently before us.

The facts, as related in our prior opinion, 539 N.E.2d at 465, are:

"Around 2:00 a.m. on September 25, 1986, as Michael Guiden was exiting his car, he was accosted by appellants and ordered at gunpoint to lie down on the front seat. Guiden was searched and relieved of the contents of his pockets, including his wallet, money, some betting slips, and other papers.

Guiden then was ordered to get into the back seat. His assailants started the car and drove away with Guiden in the back seat. A short time later, Guiden escaped by jumping from the moving car. In the process, he injured his right side and right knee, for which he later was treated at St. Margaret's Hospital and forced to walk with crutches for a month.

After hearing a radio dispatch of the crime, including a description of Guiden's car, police officers observed the car and gave chase. The chase ended abruptly when Guiden's car failed to make a turn and crashed. Both occupants fled on foot, but later were captured."

Appellant contends the trial court committed fundamental error upon retrial in denying him bond. Both appellants had bond set at $75,000 prior to their first trial. After reversal of that conviction, they petitioned for reduction of bond, with Hill testifying his family could raise only $4,000 and Minniefield, only $1500. Judge pro tempore T. Edward Page, expressing his concern that preventive detention was needed for both defendants until retrial, went on to comment that "[i]t would be intellectually immoral and dishonest of me to set a bail that the Defendants couldn't make.... I should be honest about it and say it up front and deny the Defendants bail altogether. And that is the ruling of the Court." Appellant correctly cites art. 1, Secs. 16 and 17 of the Indiana Constitution for the proposition that he has an express constitutional right to be let to bail that is not excessive.

In Minniefield, supra, 569 N.E.2d at 735, Judge Staton, writing for the Court of Appeals, observed Minniefield was correct in conceding the issue should have been appealed in an interlocutory proceeding and was moot due to the appellants' subsequent conviction and sentencing. Here, where Hill's appeal shares an identity of parties, counsel, and issues with Minniefield's, we find in congruence with Judge Staton's opinion that despite appellants' urging for guidance to trial courts in the future, we cannot go on to decide this issue. When there is no live case or controversy before us, any judgment entered upon the issue would not be dispositive of anything and thus would be advisory. Ind. Bureau of Motor Vehicles v. Zimmerman (1985), Ind., 476 N.E.2d 114. We do not provide advisory opinions. State ex rel. Goldsmith v. Super. Court of Marion County (1984), Ind., 463 N.E.2d 273.

Appellant contends the evidence is insufficient to support his conviction of robbery as a Class A felony. He notes the robbery statute, Ind.Code Sec. 35-42-5-1, provides for elevation to Class A felony status if the crime "results in serious bodily injury to any person other than a defendant," and that Ind.Code Sec. 35-41-1-25 defines "serious bodily injury" as that which "creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ." Appellant goes on to assert the injuries suffered by Guiden were not serious enough to trigger aggravation to a Class A felony. He observes the victim's testimony that once he got home, he did not take the pain medication issued him at the hospital and walked with crutches for only a short while, and concludes these facts support aggravation to only a Class B felony, which requires proof merely of "bodily injury."

Again in congruence with the Court of Appeals' treatment of the companion case, however, we find that the ill effects suffered by the victim here do rise to the level of serious bodily injury. As pointed out by Judge Staton, whether bodily injury is "serious" has been held to be a matter of degree and therefore a...