Johnston v. State
| Decision Date | 09 December 1998 |
| Docket Number | No. 64A04-9801-PC-32,64A04-9801-PC-32 |
| Citation | 702 N.E.2d 1085 |
| Parties | James JOHNSTON and Judy Johnston, Appellants-Intervenors, and Richard Allen Dobeski, Appellee-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellants-intervenors James Johnston and Judy Johnston ("Johnstons") appeal from the trial court's denial of their motion to vacate Richard Allen Dobeski's ("Dobeski") sentence modification.
Dobeski murdered the Johnstons' two children in Michigan City, Indiana on August 31, 1964. On October 22, 1965, Dobeski was sentenced to two consecutive life terms of imprisonment for two convictions of murder in the first degree. Pursuant to a sentence modification agreement between Dobeski and the LaPorte County deputy prosecuting attorney in which Dobeski agreed to dismiss his petition for post-conviction relief, the trial court modified Dobeski's sentence to two consecutive 40-year terms on July 12, 1989. The Johnstons received no official notice of the sentence modification and remained unaware of it until a family friend informed them that a notice of parole hearing for Dobeski had appeared in the Michigan City newspaper. The Johnstons filed a motion to vacate Dobeski's sentence modification on May 14, 1997. Hearings were held on the motion on June 27, 1997 and October 3, 1997. Dobeski filed a motion to strike the Johnstons' motion on October 7, 1997. On October 9, 1997, the trial court issued an order granting Dobeski's motion to strike and declaring the Johnston's motion null and void, having found that the Johnstons lacked legal standing to file their motion to vacate Dobeski's sentence modification. The Johnstons now appeal.
Pursuant to Ind. Appellate Rule 2(B), the attorney general is the representative of the State in this appeal, rather than the LaPorte County prosecuting attorney. The attorney general agrees with the Johnstons that the trial court had no authority to accept Dobeski's sentence modification agreement and that the modification should be vacated. 1
The Johnstons raise one issue on appeal which we restate as two:
(1) Whether the trial court erred in ruling that the Johnstons lacked standing to file their motion to vacate Dobeski's sentence modification; and
(2) Whether the trial court erred in modifying Dobeski's sentence.
With respect to the issue of standing, we note that plaintiffs must demonstrate a personal stake in the outcome of the lawsuit and must show that they have sustained or were in immediate danger of sustaining some direct injury as a result of the conduct at issue in order to invoke a court's jurisdiction. Higgins v. Hale, 476 N.E.2d 95, 101 (Ind.1985). Notwithstanding any emotional impact suffered by the Johnstons during these proceedings and their obvious desire to compel the defendant to serve his original sentence, Dobeski correctly asserts that he and the State are the only two parties with legal standing in this case. The State prosecuted Dobeski during the original trial, and both are parties to the sentence modification agreement that is the basis for the Johnstons' appeal. The Johnstons cite no cases or statutes to support their claim of standing, nor has this Court discovered any authority that would enable them to intervene and mount a legitimate appeal.
Having determined that the Johnstons lacked standing to file their motion to vacate Dobeski's sentence modification and therefore standing to bring this appeal, this Court would ordinarily be required to dismiss their appeal without further ado. However, the State as a party with standing asserts for the first time on appeal that the trial court lacked authority to accept the sentence modification agreement. A judgment may be void for want of a court's authority to render the particular judgment, though the court may have had jurisdiction over both the subject matter and the parties. Beanblossom v. State, 637 N.E.2d 1345, 1349 (Ind.Ct.App.1994), trans. denied. 2 A void judgment can be attacked directly or collaterally at any time. Id. Moreover, "a trial court's failure to sentence a defendant in accordance with statutory requirements constitutes fundamental error, and may therefore be presented by the State for the first time on appeal." 3 Abron v. State, 591 N.E.2d 634, 638 (Ind.Ct.App.1992), trans. denied.
It may be argued that the issue of Dobeski's sentence modification would never have been presented to this Court but for the Johnstons' appeal, for which they can claim no standing. However, "a court of review cannot ignore a fundamental error which is apparent on the face of the record, such as an incorrect sentence." Kleinrichert v. State, 260 Ind. 537, 543, 297 N.E.2d 822, 826 (1973). To attain the level of fundamental error, " 'the error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively.' " Turner v. State, 682 N.E.2d 491, 497 (Ind.1997). Fundamental error may encompass illegal sentences in violation of express statutory authority, as the State has alleged in this case. Thompson v. State, 634 N.E.2d 775, 777 (Ind.Ct.App.1994). Although the issue of fundamental error is primarily raised by defendants attacking purportedly illegal sentences, correction of fundamental error is not intended for the advantage of the accused. Moon v. State, 267 Ind. 27, 29, 366 N.E.2d 1168, 1169 (1977). Finally, "[i]t is the duty of appellate courts to bring illegal sentences into compliance ... 'even if such correction increases the punishment.' " Golden v. State, 553 N.E.2d 1219, 1223-1224 (Ind.Ct.App.1990), trans. denied, quoting United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987).
Returning to the threshold questions of standing and this Court's ability to address the merits of this appeal, we note that the State would be the proper party to attack the trial court's sentence modification; in this case, however, the parents of Dobeski's victims filed the motion to vacate the modification and appealed the trial court's nullification thereof for lack of standing. As we noted in Abron, the State ordinarily may appeal only those matters specifically authorized by IND. CODE § 35-38-4-2, but may allege fundamental error regarding an illegal sentence for the first time on appeal. Abron, 591 N.E.2d at 638. 4 As a further consideration, this Court has been empowered to review sentences pursuant to Article 7 § 6 of the Indiana Constitution and Ind.App. Rules 17(A)(1) and (3). Nevertheless, "we cannot revise a sentence unless we are left with a firm conviction that a mistake has been made which is readily apparent and not subject to reasonable dispute." Hardebeck v. State, 656 N.E.2d 486, 490 (Ind.Ct.App.1995), trans. denied. The State has alleged fundamental error that is glaringly apparent on the face of the record, and our disposition of the contested issue substantially affects the rights and interests of both the State and Dobeski as parties with standing currently before this Court; therefore, we assert jurisdiction over the interested parties and the subject matter sua sponte and will address the issue of Dobeski's sentence modification on the merits.
This Court has traditionally granted trial courts broad discretion in sentencing and has been reluctant to modify a sentence on appeal, "provided it falls within the statutory boundaries and there is no clear evidence of abuse." Id. IND. CODE § 35-38-1-17 provides one of the very few statutory avenues available to a trial court for reducing or modifying a criminal defendant's sentence. "After final judgment, a court retains only such continuing jurisdiction as is permitted by the judgment itself or as is given the court by statute or rule." Beanblossom, 637 N.E.2d at 1347. The statute reads in relevant part as follows:
35-38-1-17 Reduction or suspension of sentence
* * * * *
(b) If more than three hundred sixty-five (365) days have elapsed since the defendant began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney. The court must give notice of the order to reduce or suspend the sentence under this section to the victim (as defined in IC 35-35-3-1) of the crime for which the defendant is serving the sentence.
(c) The court may suspend a sentence for a felony under this section only if suspension is permitted under IC 35-50-2-2. 5* * * * *
(e) Notwithstanding subsections (a) and (b), the court is not required to conduct a hearing before reducing or suspending a sentence if:
(1) the prosecuting attorney has filed with the court an agreement of the reduction or suspension of the sentence; and
(2) the defendant has filed with the court a waiver of the right to be present when the order to reduce or suspend the sentence is considered.
In both the record and his appellate brief, Dobeski makes the curious argument that the sentence modification agreement he signed with the deputy prosecutor is the "functional equivalent of a plea agreement." Prosecuting attorneys are granted wide latitude in drafting plea agreements, but those agreements must comply with statutory requirements, specifically IND. CODE § 35-35-3-1 through § 35-35-3-7 and any relevant sentencing provisions. See Badger v. State, 637 N.E.2d 800, 802 (Ind.1994) (...
To continue reading
Request your trial
-
Williamson v. Psychiatric Sec. Review Bd.
...brought to trial; questions of whom to indict and how soon to proceed to trial are at discretion of prosecution); Johnston v. State, 702 N.E.2d 1085, 1088 (Ind. App. 1998) transfer granted, opinion vacated, 714 N.E.2d 167 (Ind. 1999) and opinion adopted in part, vacated in part sub nom. Joh......
-
Kelley v. State
...are the only two parties with standing in a criminal sentencing proceeding. Haltom v. State, 832 N.E.2d 969. See also Johnston v. State, 702 N.E.2d 1085 (Ind.Ct.App.1998) (explaining that victims' family had no standing to contest a criminal court's modification of defendant's sentence beca......
-
Johnston v. Dobeski
...because "[i]n 1964, the only sentences authorized for murder in the first degree were death and life imprisonment." Johnston v. State, 702 N.E.2d 1085, 1090 (Ind.Ct.App.1998). The Court of Appeals vacated the 1989 agreement between the State and Dobeski. Id. at Discussion I We agree with th......
-
Jackson v. State
...State's argument that the post-conviction court lacked authority to accept the sentence modification agreement. See Johnston v. State, 702 N.E.2d 1085, 1088 (Ind.Ct.App.1998), trans. granted by Johnston v. Dobeski, 739 N.E.2d 121, 123 (Ind.2000). This court held that the sentence contained ......