Kennedy v. State
| Decision Date | 19 December 1974 |
| Docket Number | No. 2--474A80,2--474A80 |
| Citation | 162 Ind.App. 518,319 N.E.2d 883 |
| Parties | Carl W. KENNEDY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, William B. Bryan, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant (Kennedy) appeals from a denial of post conviction relief, and challenges the constitutionality of the 'Good Time' statute as it applies to indeterminate stentences. Kennedy had been found guilty of Aggravated Assault and Battery and on October 24, 1969, was sentenced to an indeterminate term of not less than one nor more than five years.
After contending that certain findings by the court were erroneous, Kennedy launches into a constitutional argument, pointing out the unfairness of the application of 'good time' statutes where indeterminate sentences are concerned. He emphasizes that a person serving a five year determinate or 'flat' sentence with good time off would be entitled to discharge after serving three years and nine months, while a person such as himself, serving a one to five indeterminate sentence is not eligibile for discharge after three years and nine months, but may only receive parole consideration. He contends that this amounts to a violation of the Equal Protection clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 23 of the Indiana Constitution.
The 'good time' statutes applying to determinate and indeterminate sentences are respectively:
IC 1971, 11--7--6--1 (Burns Code Ed.)
IC 1971, 11--7--7--1 (Burns Code Ed.)
The contrasting result produced by these two statutory enactments has been noted before. In Dotson v. State (1972), Ind., 282 N.E.2d 812, our Supreme Court observed:
'A reading of these two statutes reveals that one who is serving an indeterminate sentence may have a good time diminution of his minimum sentence in order to make him eligible for parole while one serving a determinate sentence is entitled to a good time diminution off of his sentence leading to a discharge.'
Our examination of the record reveals that Kennedy has failed to preserve his argument for our consideration. His motion to correct errors asserts only the alleged erroneous findings of the court and completely omits any reference to the unconstitutionality of the operation of the good time statutes. See, Ind. Rules of Procedure, Trial Rule 59(B) and (G). In Clardy v. State (1973), Ind.App., 294 N.E.2d 807, it was held that an argument is unavailing if not preserved by the motion to correct errors. Moreover, a constitutional question not specifically presented to the trial court is not properly raised for review on appeal. Saloom v. Holder (1973), Ind.App., 304 N.E.2d 217; Hamblen v. State (1973), Ind.App., 299 N.E.2d 211.
Even had appellant preserved his constitutional question it would be of no avail. Originally the good time law was expressly limited in its application to persons serving determinate sentences. Even this distinction was held to be constitutional. Hinkle v. Dowd (1944), 223 Ind. 91, 58 N.E.2d 342.
In McVea v. State (1973)...
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Kail v. State
...to correct errors are not properly preserved for appellate review. Indiana Rules of Procedure, Trial Rule 59; Kennedy v. State (1974), 162 Ind.App. 518, 520, 319 N.E.2d 883, 884. Kail has waived any complaint that he was denied due process because the trial judge was not under Kail is corre......
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Barrientos v. State
...to correct errors and therefore were not properly preserved for appeal. Ind.Rules of Procedure, Trial Rule 59(G); Kennedy v. State (1974), Ind.App., 319 N.E.2d 883. ...