Leavell v. State
| Decision Date | 18 June 1979 |
| Docket Number | No. 2-178A1,2-178A1 |
| Citation | 181 Ind.App. 69,391 N.E.2d 246 |
| Parties | Michael LEAVELL, Appellant (Defendant Below) v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Indianapolis, for defendant-appellant.
Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., for plaintiff-appellee.
Leavell was charged with Commission of a Felony While Armed, to wit, Robbery. IC 35-12-1-1 (Burns Code Ed. 1975) He was convicted as charged and sentenced to a determinate term of ten (10) years imprisonment. 1
His appeal presents two issues for review: (1) whether there was sufficient evidence linking him to the armed robbery; and (2) whether the trial court erred in ordering that he not be given any good time credit for his presentence confinement. We affirm Leavell's conviction, but remand the case for correction of part of the judgment.
Citing Gaddis v. State, (1968) 253 Ind. 73, 251 N.E.2d 658, Leavell argues that the victim's in-court identification was so tainted by an overly suggestive pretrial photographic display that the testimony had no probative value.
According to the victim's testimony at trial, the robbery occurred during daylight hours and must have taken at least several minutes to complete. The perpetrator, who did not wear a mask, stood for some time no more than an arm's length away from the victim.
Where, as here, the victim had ample opportunity to observe his assailant, there exists a sufficient basis, independent of any pretrial photographic identification, to support his unequivocal in-court identification. Emerson v. State, (1972) 259 Ind. 399, 287 N.E.2d 867.
Nor was the pretrial photographic display unnecessarily suggestive. A few days after the robbery, the victim viewed a display of photographs at the police station. He went through a series of mug books, but was unable to identify any of the photographs. Then, as the police officer was going through a drawer of additional mugshots, several photographs fell out. One of the photographs was of Leavell, which photograph the victim identified as being that of the person who had robbed him at gunpoint.
Although it is better practice not to use mugshots, or at least to cover any police identification markings on them if used, there is no strict rule against the display of such photographs to witnesses. In determining the suggestiveness of a photographic display, the totality of the circumstances surrounding the display should be considered and the nature of the photographs is only one of the factors to be considered. Whitt v. State, (1977) Ind., 361 N.E.2d 913.
Here, Leavell's mugshot photograph was shown along with other mugshot photographs. In view of that fact, and also the fact that Leavell's photograph was displayed fortuitously, we find that the pretrial photographic display was not unnecessarily suggestive. Leavell's related challenge to the testimony of Anderson Freshwater, an admitted accomplice who served time for his participation in the armed robbery, is also without merit. Although Freshwater apparently agreed to testify in order to get out of prison and was subsequently released on shock probation, such evidence was before the jury to consider in evaluating Freshwater's overall credibility. It is the trier of fact's function, not ours, to weigh the evidence and determine the credibility of witnesses. Downing v. State, (1978) Ind.App., 381 N.E.2d 554.
Contrary to Leavell's claim, therefore, the record discloses ample evidence from which the jury could have inferred that he was the perpetrator.
Following the jury verdict, the trial court sentenced Leavell to imprisonment for a determinate term of ten (10) years. The trial court also entered two related orders under IC 35-8-2.5-1 et seq. (Burns Code Ed. 1975) concerning the credit Leavell was to receive for his presentence confinement.
IC 35-8-2.5-1 requires that an individual be given credit toward service of his sentence for any days spent in confinement on that charge prior to sentencing. 2 See also, Williams v. State, (1978) Ind.App., 381 N.E.2d 1256. Pursuant to IC 35-8-2.5-3 which deals specifically with determinate sentences, 3 the trial court ordered that Leavell be given credit toward service of his sentence for the 300 days he spent in presentence confinement.
The trial court's second order, which is the one we are concerned with here, involved Leavell's good time allowance under IC 35-8-2.5-5. By statute, an individual may earn a diminution of time from his sentence in the form of a "good time" allowance. Good time is earned at varying rates up to a maximum of thirty (30) days a month, depending upon the individual's time earning class. See, IC 11-7-6.1-1 et seq. (Burns Code Ed. 1977 Supp.). 4 The trial court specifically ordered that Leavell not be given any good time allowance for the 300 days he spent in confinement prior to sentencing. 5 Leavell maintains that the trial court had no authority to enter a binding order in this regard.
IC 35-8-2.5-5, the statute under which the trial court was proceeding, provides:
Credit for time served Good time allowance. Whenever a person has been given credit pursuant to section 1 (35-8-2.5-1) of this chapter, any good time allowances to which such person is entitled under the laws of this state shall be computed as if the time for which credit has been allowed had been served after the sentence was imposed and in the place of confinement designated in such sentence or order of commitment. The sentencing judge shall make recommendations as to credit for good time conduct for time spent in confinement prior to sentencing.
A plain reading of this statute indicates that the sentencing judge only has the authority to make Recommendations with respect to good time allowances. 6 The trial judge cannot, as was done here, enter a binding order and thereby circumvent the procedure specified by IC 11-7-6.1-1 et seq.
IC 11-7-6.1-1 et seq. contains the following provisions:
11-7-6.1-1. Definitions (Repealed effective October 1, 1977). As used in this chapter (11-7-6.1-1 11-7-6.1-8) unless otherwise provided:
(a) "Inmate" means those persons who are either actually within the walls of the various state correctional institutions or upon the grounds thereof, or are elsewhere working or under the control of the department of correction including, but not limited to, those persons on work release, academic and vocational study release, and temporary leaves. The term shall not be applicable to any person who has been released on parole or placed on probation.
(b) "Good time" means earned diminution of time from the sentence as provided in section 2(11-7-6.1-2) of this chapter and is to be earned only while the person is an inmate in a state correctional institution.
(c) "Time earning class" means any one (1) of the four (4) categories to which an inmate may be assigned according to his conduct and performance, each category offering a different rate of good time accumulation for each individual month of sentence served.
(d) "Director" means the director of the division of classification and treatment created by IC 1971, 11-1-1.1-24, (IC 1971, 11-7-6.1-1, as added by Acts 1974, P.L. 43, § 1, p. 181.)
11-7-6.1-2. Classification of inmates Schedule of good time earned (Repealed effective October 1, 1977). Every inmate who is now or hereafter may be confined, upon conviction of a felony, in a correctional institution under the supervision of the Indiana department of correction, except those inmates under sentence of death or life imprisonment, shall at all times during such confinement be assigned to one (1) of the following four (4) time earning classes and shall be entitled to a diminution of time from his or her sentence as indicated in the following table for the respective months of his or her sentence, prorated for any part of a month, including time being served for unpaid fines or costs. Class assignments shall be made in accordance with the procedure provided in this chapter (11-7-6.1-1 11-7-6.1-8). This good time shall apply both toward an inmate's discharge date and his parole eligibility date.
RATE OF GOOD TIME
DIMINUTION FROM EACH
TIME EARNING INDIVIDUAL MONTH
CLASSES OF GOOD OF SENTENCE WHILE
TIME IN CONFINEMENT
Class one (1) Thirty (30) days
Class two (2) Twenty (20) days
Class three (3) Ten (10) days
Class four (4) Zero (0) days
(IC 1971, 11-7-6.1-2, as added by Acts 1974, P.L. 43, § 1, p. 181.)
11-7-6.1-3. Classification of inmates Procedure Criteria Records Powers of director of division (Repealed effective October 1, 1977). The director of the division of classification and treatment shall have the power and duty to:
(a) develop and implement an efficient and impartial procedure for evaluating inmates and classifying them into the four (4) time earning classes created by this chapter (11-7-6.1-1 11-7-6.1-8). This procedure shall include the formulation of criteria for each individual class and the level of performance necessary for advancement to a higher time earning class. Criteria for class composition shall be devised so that each class will reflect a different level of performance based on, but not limited to, an inmate's conduct record, work and/or instructional program reports, involvement in rehabilitative programs, willingness and ability to accept responsibility, and cooperative attitude (b) keep an accurate and complete record of all good time earned by an inmate, including a record of his time earning class at all times during his confinement and a record of any good time taken away from and restored to an inmate;
(c) facilitate the institution of the diminution of sentence procedure provided by this chapter by classifying all...
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Robinson v. State
...with respect to good time allowances." Kindred v. State, 771 N.E.2d 760, 763 (Ind.Ct.App.2002), citing Leavell v. State, 181 Ind.App. 69, 73, 391 N.E.2d 246, 248 (1979). We disapprove of this In Campbell v. State, 714 N.E.2d 678 (Ind.Ct.App.1999), our Court of Appeals confronted a claim tha......
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Kindred v. State
...allowances and cannot enter a binding order circumventing the statutory process for calculating credit time. Leavell v. State, 181 Ind. App. 69, 73, 391 N.E.2d 246, 248 (1979).1 Here, the trial court entered an order purportedly granting Class I credit time classification to Kindred, effect......
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Crouch v. State
...recommendations and could not enter a binding order. See, e.g., Garrett v. State, (1980) Ind.App., 411 N.E.2d 692; Leavell v. State, (1979) 181 Ind.App. 69, 391 N.E.2d 246. However, the record here shows that the trial judge merely recommended that petitioner be denied any good time allowan......
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Robinson v. State
...make recommendations as to credit for good time conduct for time spent in confinement prior to sentencing. Leavell v. State, 181 Ind.App. 69, 73, 391 N.E.2d 246, 248 (1979) (quoting Ind.Code § 35-8-2.5-5) (emphasis added). Our current good time credit statutes do not contain this language. ......