Lunsford v. State

• Decision Date: 31 May 1994
• Docket Number: No. 20A05-9310-CR-392,20A05-9310-CR-392
• Citation: 640 N.E.2d 59
• Parties: Ronald D. LUNSFORD, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 59

640 N.E.2d 59

Ronald D. LUNSFORD, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A05-9310-CR-392.

Court of Appeals of Indiana,

Fifth District.

May 31, 1994.

Ordered Published Sept. 1, 1994.

Mark A. Armstrong, Hartzog Barker Hepler & Saunders, Goshen, for appellant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee.

SHARPNACK, Chief Judge.

Ronald D. Lunsford, Jr., appeals the sentence imposed by the trial court after determining that Lunsford was a habitual offender following his convictions of battery resulting in bodily injury and of robbery resulting in bodily injury. We affirm.

Lunsford presents one issue for our review, which we restate as whether the court erred in sentencing Lunsford on the basis of the habitual offender statute in force at the time of the offense and Lunsford's conviction rather than on the basis of the amended version in force at the time of Lunsford's sentencing.

Lunsford's convictions resulted from an incident on November 17, 1992, in which Lunsford physically assaulted Robert and Marjorie Pedzinski and stole Marjorie Pedzinski's purse. After a jury trial on May 11-13, 1993, Lunsford was found guilty of battery resulting in bodily injury as a class A misdemeanor and robbery resulting in body injury as a class B felony. The court then proceeded to the habitual offender phase of the trial, after which the jury returned its verdict finding Lunsford to be a habitual offender.

On July 12, 1993, Lunsford appeared for sentencing. Following arguments of counsel, the court sentenced Lunsford to one year on the battery count and twenty years on the robbery count, the latter enhanced by thirty years pursuant to the habitual offender statute. The court suspended ten years of the sentence for robbery and ordered that the sentences run concurrently. The net result was a total sentence of forty years.

Prior to July 1, 1993, the habitual offender statute required the court to add a fixed term of thirty years to the sentence imposed on the underlying offense unless certain specific conditions were met. On July 1, 1993, the newly amended habitual offender statute went into effect. ¹ The new version requires the court to sentence the offender to

"an additional fixed term that is not less than the presumptive sentence for the underlying offense nor more than three (3) times the presumptive sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years."

I.C. § 35-50-2-8(e). Under the new version, the court has far greater flexibility in imposing habitual offender enhancements. In the present case, based on a presumptive sentence of ten years for an underlying class B felony [I.C. § 35-50-2-5], the enhancement of Lunsford's sentence could have been anywhere from ten to thirty years.

Lunsford argues that the "doctrine of amelioration" should apply, requiring the court to employ the newer, more flexible standard. Under the doctrine of amelioration, a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime. See Vicory v. State (1980), 272 Ind. 683, 400 N.E.2d 1380, 1381-82. Application of the doctrine of amelioration was explained by Judge Staton of this court as follows:

"The general rule is that the law in effect at the time the crime was committed is controlling. Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Dembowski [v. State (1968), 251 Ind. 250, 240 N.E.2d 815]. This rule is constitutionally required in the case that a penalty is increased ex post facto by amendment after the commission of the crime. Dembowski, supra. An exception to the general rule is recognized, in other jurisdictions and at least in dicta in previous Indiana cases, when punishment is lessened by amendment after the commission of the crime.

If a statutory amendment mitigates the punishment, there is no constitutional obstacle in the way of applying an amendment effective after the commission of the crime. However, it is a legislative function and not a judicial function to set the amount of the punishment for a crime, within the constitutional limitations. Dembowski, supra. While the penalty must not be excessive and must be proportioned to the nature of the offense, this does not mean that this Court can alter a penalty merely because it seems harsh or merely because we feel a different penalty would be more appropriate. We are bound by the legislature's determination of the appropriate penalty, so long as that penalty is constitutional.

We must determine whether the legislature intended that the statute as amended ... should be applied to an offense committed before its enactment....

One source of legislative intent is the general savings statute, which by law is imported into all subsequent repealing or amending acts and obviates the necessity for individual savings clauses. State v. Hardman (1896), 16 Ind.App. 357, 45 N.E. 345. This section was enacted to indicate the legislative intent when no intent is expressed or...