Jewell v. State, 179S2

• Decision Date: 13 December 1979
• Docket Number: No. 179S2,179S2
• Citation: 272 Ind. 317,397 N.E.2d 946
• Parties: Robert James JEWELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 946

397 N.E.2d 946

272 Ind. 317

Robert James JEWELL, Appellant, v. STATE of Indiana, Appellee.

No. 179S2.

Supreme Court of Indiana.

Dec. 13, 1979.

Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Robert James Jewell was convicted of second degree murder by a jury in Howard Circuit Court. He was sentenced to life imprisonment. This Court affirmed the conviction and sentence. Jewell v. State, (1973) 261 Ind. 665, 309 N.E.2d 441. After appellant's trial, one of his co-defendants, Charles Young, apparently accepted a plea bargain arrangement and pleaded guilty to voluntary manslaughter and was sentenced accordingly. The other co-defendant, Frank Workman, was never tried for the crime.

On July 14, 1976, appellant filed a petition for post-conviction relief. Appellant has failed to include this petition in the transcript now before this Court, but apparently all parties and the trial court agree that this petition alleged, in part, a disparity in the sentences given appellant Jewell and Charles Young. Appellant also failed to include in the transcript the record of the hearing on this petition; however, Charles Young apparently testified at this hearing that he was the principal of the crime and that appellant Jewell was an accessory. This also appears to be one of the theories Jewell could have been convicted on at the original trial. See Jewell v. State, (1973) 261 Ind. 665, 667-68, 309 N.E.2d 441, 443. For purposes of this appeal, we shall assume Jewell was, in fact, convicted as an accessory. In response to this petition, the trial court granted partial relief on September 30, 1976. The court vacated the life sentence and resentenced Jewell to an indeterminate term of fifteen to twenty-five years. No appeal was taken from this ruling.

On June 30, 1977, appellant Jewell filed a second post-conviction relief petition. Initially, this petition alleged, Inter alia, an "unconstitutional inequality of sentencing." The State answered this claim by arguing that appellant had raised the issue of a disparity of sentences in his first petition and should not be allowed to relitigate the question in a subsequent motion. The State further argued that appellant had waived any similar issues by his failure to raise them in his first post-conviction relief petition.

At the hearing on the second petition and in his supporting memorandum, appellant asserted that the issue is actually whether his conviction as an accessory to second degree murder can stand when no person has been convicted as a principal of second degree murder. In his memorandum, appellant prayed for a vacation of the conviction of, and sentence for, second degree murder. He further requested that the trial court "correct" the conviction to one of voluntary manslaughter, and that he be resentenced accordingly. Appellant argued that this discrepancy in judgments was a "fundamental error" which could not be waived. The trial court denied appellant Jewell's request for relief.

We think the trial court properly held that appellant waived any issue concerning the disparity of sentences. Appellant's first petition allegedly raised a question concerning the disparity between his sentence and that of Charles Young. The trial court granted relief based on that allegation, and appellant chose not to appeal that decision. His second petition, in his own words, concerns an alleged "unconstitutional inequality of sentence." This alleged inequality was raised in appellant's first petition, and has been litigated and decided with finality. Appellant cannot raise the question again in a subsequent petition.

Additionally, even if appellant's second petition does raise a different question, that of an impermissible inconsistency in Judgments, we think he has waived the issue. Section 8 of Ind.R.P.C. 1 states in part: "All grounds for relief available to a petitioner under this rule must be raised in his original petition." The alleged inconsistent judgment of which appellant complains arose when Charles Young pleaded guilty to voluntary manslaughter on October 31, 1973. Appellant's first post-conviction relief petition was not filed until July 14, 1976. Thus, any issue concerning an inconsistency in judgments was available to appellant at that time. Appellant has made no showing to the contrary.

Appellant further argues that this claimed inconsistency in judgments constitutes fundamental error and therefore was not waived by his failure to raise the question in his first petition. We do not agree.

Appellant cites Davis v. State, (1977) 267 Ind. 152, 368 N.E.2d 1149, for the proposition that his conviction cannot stand when a principal was convicted of a lesser offense subsequent to his trial. In Davis v. State, the defendant was convicted as an accessory before the fact of first degree (felony) murder. Subsequently, one of Davis' co-defendants, Gentry, the alleged principal, was tried to a jury for felony murder, but was convicted only of assault and battery. In both trials, the cause of death was in dispute. The jury's verdict in Gentry's case indicated that it did not believe that Gentry's actions caused the death. In that situation, Davis stood convicted as an accessory to a murder which, legally, had not been committed.

The Court in Davis v. State pointed out that, while the conviction of a principal is not a prerequisite to the conviction of an accessory, "the law does require a degree of consistency between the convictions of principals and accessories." 267 Ind. at 158-59, 368 N.E.2d at 1152. The Court further stated:

" ' "(W)here there (have) been two separate judicial determinations on the merits of the respective cases, and where they are contradictory, the law will impose a consistency to their findings." Combs v. State, ...