McVea v. State
| Decision Date | 14 March 1973 |
| Docket Number | No. 472A202,472A202 |
| Citation | 293 N.E.2d 786,155 Ind.App. 499 |
| Parties | Edgar McVEA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn., Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellant.
Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.
Petitioner-appellant Edgar McVea (McVea) appeals from denial of his Petition For Post-Conviction Relief in which he sought to modify his indeterminate sentence of from ten to twenty years for the crime of Robbery to a determinate sentence of ten years.
We affirm.
McVea was charged by Affidavit on April 20, 1967, with the crime of Robbery of a Kroger supermarket in the City of Indianapolis. The case was tried before a jury in the Marion Criminal Court, Division One, and McVea was found guilty as charged on December 19, 1967. On December 28, 1967, the court sentenced McVea to an indeterminate sentence of from ten to twenty-five years in the Indiana State Prison.
On June 2, 1971, McVea filed a Petition for Relief under Post-Conviction Rule 1. After a hearing on August 11, 1971, the trial court ordered the sentence modified to ten to twenty years, rather than then to twenty-five years, in accordance with the
Supreme Court holding in Dembowski v. State, (1968) 251 Ind. 250, 240 N.E.2d 815. From that ruling defendant-appellant McVea appeals.
McVea presents us with only one issue:
Should the trial court have reduced McVea's sentence to a determine term of ten years?
McVea argues that the ten to twenty year sentence which he received for Robbery is not 'proportioned to the nature of the offense,' as requred by the Indiana Constitution, Art. 1, § 16, and the recent line of 'Robbery/Armed Robbery' cases descending from Dembowski, supra.
The State replies that:
(1) the maximum severity of the penalty is the measure to be used in determining whether the penalty for one crime is greater than the penalty for another;
(2) the qualitative difference between a determinate and an indeterminate sentence is not sufficient to allow relief under the Indiana Constitution, Article 1, § 16 provision;
(3) the entire argument presented by the appellant is hypothetical and speculative.
CONCLUSION--It is out opinion that the trial court's amended indeterminate sentence of not less than ten nor more than twenty years imprisonment was proportioned to the nature of the offense.
McVea formulates a hypothetical situation in which one inmate receives the minimum determinate sentence for Armed Robbery of ten years, and another inmate receives a ten to twenty year indeterminate sentence for Robbery. Assuming both are model prisoners, after the passage of six years and eight months, the recipient of the determinate sentence for the greater offense will be discharged (Burns Ind.Ann.Stat., 1956 Repl., § 13--116, IC 1971 11--7--6--1), while the prisoner serving the indeterminate sentence for a lesser offense would only be eligible for parole at that time. (Burns Ind.Ann.Stat., 1956 Repl., § 13--119a, IC 1971 11--7--7--1). It is this qualitative difference in the sentences after 'good-time' reduction which McVea assigns as the disproportionality which violates the Indiana Constitution, Article 1, § 16. Parole from the lesser Robbery sentence is disproportional, he says, to discharge from the sentence for the greater crime of Armed Robbery.
As thus posed, the question is almost identical to the issue decided in Dotson v. State, (Ind.1972) 282 N.E.2d 812, in which the Supreme Court used a similar hypothetical in its analysis of the determinate-indeterminate dichotomy to conclude that speculative assumption of variances in good time release from imprisonment for determinate and indeterminate sentences, does not...
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