Menifee v. State
| Decision Date | 19 October 1992 |
| Docket Number | No. 48A02-9201-CR-16,48A02-9201-CR-16 |
| Citation | 601 N.E.2d 359 |
| Parties | Steven R. MENIFEE, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Geoffrey B. Yelton, Anderson, for appellant-defendant.
Linley E. Pearson, Atty. Gen. of Indiana, Office of Atty. Gen., Indianapolis, for appellee.
Steven Menifee appeals the trial court's revocation of his in-home detention, 1 and its deviation from a previous plea agreement in imposing consecutive sentences upon three separate convictions which were rendered at different times.
We affirm.
Upon appeal, Menifee presents three issues for our review, which we restate.
I. Whether the trial court improperly revoked Menifee's in-house detention upon Notice of Probation Violation when it had not issued an order advising him of the terms of his in-house detention;
II. whether the trial court erred by ordering consecutive sentences upon three convictions which were rendered in separate proceedings, when a previous plea agreement upon probation violation required that Menifee serve the three sentences as two four-year sentences to be served consecutively, concurrent with a six-month sentence followed by one year of probation;
III. whether there was sufficient evidence to sustain the trial court's finding that Menifee violated the terms of his in-home detention?
On October 30, 1989, Menifee was convicted of Burglary, a Class B felony, 2 upon his plea of guilty. The court sentenced Menifee as follows:
On October 15, 1990, Menifee pleaded guilty to violation of probation. The bases for the probation violation were his convictions of Theft, a Class D felony, 3 and Criminal Mischief, 4 and his failure to: 1) keep the Probation Department advised as to his address; 2) complete a court-ordered community service restitution program; 3) pay restitution to the victim of the burglary; and 4) participate in a vocational rehabilitation program, participate in an alcohol dependency program, and submit to a urine test upon the request of the Probation Department. Menifee's sentence upon violation of his probation was reflected in the trial court's docket entry:
Menifee had received a sentence of one year upon the Theft conviction, and a sentence of six months upon the Criminal Mischief conviction. Also relevant to the resolution of the issues herein presented is Menifee's conviction of Attempted Robbery, a Class C felony, 5 for which he received an eight-year sentence, which was suspended. 6
Upon finding Menifee guilty of probation violation, the trial court ordered that four years of his original six-year sentence be executed, and further ordered that it be served consecutive to the sentences for Theft and Criminal Mischief. Six months of the sentence for Theft and Criminal Mischief was executed and one year was suspended. The court further ordered that four years of a previously suspended eight-year sentence for Attempted Robbery be executed, with the remaining four years suspended. Finally, the court ordered that the two four-year executed terms be served concurrently, and that they be served consecutive to the six-month executed sentence.
On June 21, 1991, the trial court held a hearing on Menifee's Petition to Modify Sentence, in which he requested that his sentence be changed to in-home detention. The court granted his request, ordering that Menifee be placed on in-home detention and probation for the balance of his sentence.
On September 25, 1991, the Probation Department filed another Notice of Probation Violation, 7 based upon allegations of domestic violence between Menifee and his girlfriend. A hearing was held on September 30, 1991, regarding the violation, after which the court issued the following order:
"The Court finds after hearing evidence that the defendant has violated the conditions of probation.... The Court revokes defendant's suspended sentence and probation and finds as follows:
1) Defendant was previously sentenced to the Indiana Department of Correction on Cause No. 48DO3-8909-CF-123 for the Crime of Burglary, a Class B Felony, for a term of six (6) years;
2) Defendant was previously sentenced to the Indiana Department of Correction on Cause No. 48DO3-8911-CF-156 for the crime of Attempted Robbery, a Class C Felony, for a term of eight (8) years;
3) Defendant was previously sentenced to the Indiana Department of Correction on Cause No. 48DO3-9008-CF-106 for the crime of Theft, a Class D Felony, for a term of one-and-a-half (1 1/2) years.
The Court now executes said suspended sentences and runs them consecutively resulting in the defendant's incarceration at the Indiana Department of Correction for a period of fifteen-and-a-half (15 1/2) years for violating conditions of probation." Record at 40.
Menifee appeals from the above Order.
We note at the outset that this appeal arises in a somewhat unique posture. Menifee has prosecuted three separate appeals in challenging the trial court's Order. The three appeals are virtually identical, differing only in that they are premised upon the three separate convictions (Theft/Criminal Mischief, Attempted Robbery, and Burglary) upon which the probation violation hearing was held. The legal issues presented and the arguments supporting those issues are the same in each appeal. Our Fourth District has affirmed the trial court's Order in a consolidated appeal combining separate appeals premised upon the Attempted Robbery conviction, Cause No. 48A05-9201-CR-11, and the Theft/Criminal Mischief conviction, Cause No. 48A04-9201-CR-11. See Menifee v. State, (1992) 4th Dist. Ind.App., 600 N.E.2d 967; see footnote 6, supra.
As stated previously, the issues in the instant case are identical to the issues presented in the appeals brought upon the Attempted Robbery and Theft/Criminal Mischief convictions. We agree with the prior resolution of the issues concerning the substantive and procedural correctness of the trial court's revocation of Menifee's in-house detention, and discern no need to restate herein our Fourth District's capable treatment of those issues. Accordingly, we incorporate by reference the portions of the Fourth District's Menifee v. State, supra, which discuss and decide the issues identified therein as issues "1" and "3".
We treat separately, however, the trial court's imposition of consecutive sentences upon the three separate convictions. The Fourth District identified this as issue "2", and phrased it as: "whether the trial court erred in sentencing him." 600 N.E.2d at 968. That opinion addresses the sentencing issue narrowly--in the context of the variation between the plea agreement and the sentence imposed. However, we examine the sentencing more broadly; specifically, we examine the trial court's judgment for fundamental error committed in imposing consecutive sentences.
Menifee argues that the imposition of consecutive sentences was improper because the sentence pronounced by the trial court at the October 15, 1990 hearing effectively superseded the respective sentences he had initially received upon conviction of the three separate offenses.
Trial courts may order that sentences be served consecutively only when expressly authorized to do so by statute. Kendrick v. State (1988) Ind., 529 N.E.2d 1311. Statutory authority for imposition of consecutive sentences is contained in I.C. 35-50-1-2 (Burns Code Ed.Supp.1992):
"Consecutive and concurrent terms.--(a) Except as provided in subsection (b), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.
(b) If, after being arrested for one (1) crime, a person commits another crime:
(1) Before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or
(2) While the person is released:
(A) Upon the person's own recognizance; or
(B) On bond;
the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed."
Section (b) requires that a court impose consecutive sentences in instances in which a defendant commits a crime while on probation or parole for another crime. Section (a) confers discretion upon the court when imposing consecutive sentences. This discretion is limited, however, to cases in which a court is contemporaneously imposing two or more sentences. Bartruff v. State (1990) Ind., 553 N.E.2d 485, 488.
We begin with recitation of the principle that a trial court may not order that a sentence be served consecutive to another sentence which the defendant has already received in a different proceeding at a different time. In Kendrick v. State, supra, the defendant had charges pending against him in two separate divisions of the Marion County Superior Court. He pleaded guilty and was sentenced upon the charges in one division. He subsequently pleaded guilty to the charges in the other division. Upon his guilty plea to the second set of charges, the trial court sentenced him and ordered that the sentence be served...
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Scott v. State
...that its sentence run consecutively to an as-yet, non-existent sentence. In this regard, our case is dissimilar to Menifee v. State (1992) 2d Dist.Ind.App., 601 N.E.2d 359. In Menifee, we approved the imposition of a sentence consecutive to a sentence already imposed as a result of a probat......
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...greater depth. However, we note that home detention has heretofore been viewed as a condition of probation. See Menifee v. State (1992) 2d Dist.Ind.App., 601 N.E.2d 359, 360 n. 1 ("In addition to placing Menifee on in-home detention, the order also placed him on 'probation for the balance o......
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Weaver v. State, 30S00-9506-CR-640
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