Powell v. State, No. 22A01-9009-PC-369

Docket NºNo. 22A01-9009-PC-369
Citation574 N.E.2d 331
Case DateJune 26, 1991
CourtCourt of Appeals of Indiana

Page 331

574 N.E.2d 331
Leland C. POWELL, Petitioner-Appellant,
v.
STATE of Indiana, Respondent-Appellee.
No. 22A01-9009-PC-369.
Court of Appeals of Indiana,
First District.
June 26, 1991.
Rehearing Denied Aug. 23, 1991.

Page 332

Susan K. Carpenter, Public Defender, Darrolyn A. Ross, Deputy Public Defender, Indianapolis, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Ian A.T. McLean, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

BAKER, Judge.

Leland C. Powell appeals from the denial of his motion to correct erroneous sentence. The issue presented for our review is whether our supreme court's decision in Kelly v. State (1989), Ind., 539 N.E.2d 25, aff'g Kelly v. State (1988), Ind.App., 527 N.E.2d 1148, should be applied retroactively to Powell's convictions and sentences. We hold it should not be applied retroactively, and therefore affirm the trial court.

FACTS

In 1983, Powell, driving while intoxicated, entered a divided highway on the wrong side. He caused a head-on collision with another car, which took the lives of two people. Powell was charged with two counts of operating a motor vehicle while intoxicated resulting in death, and two counts of reckless homicide, all Class C felonies. He pled guilty to all four counts. He was sentenced to eight years on one of the OWI convictions, and eight years with four years suspended on the second OWI conviction. These sentences were to run consecutively. The trial court vacated the reckless homicide convictions.

In 1985, Powell filed a motion to correct error, which was treated as a petition for post-conviction relief. The post-conviction court overturned his convictions and sentences and set the case for a jury trial. Powell again pled guilty to all four charges. He was sentenced to consecutive eight year terms on the OWI convictions, and his reckless homicide convictions were vacated.

Powell took a direct appeal from the second judgment, claiming in part that it was error to impose two sentences for the OWI convictions. This court affirmed his sentences on February 3, 1988, in a unanimous memorandum decision. Powell v. State (1988), Ind.App., 519 N.E.2d 235, trans. denied. The Indiana Supreme Court denied transfer on September 22, 1988. Chief Justice Shepard did not participate in the transfer decision, as he was the trial judge who initially accepted Powell's guilty pleas and imposed sentence upon him. Two justices voted to deny transfer, and two voted to grant transfer on the basis that only one conviction for OWI causing death could stand based upon the single accident regardless of how many lives were taken. Powell v. State (1988), Ind., 528 N.E.2d 483 (DeBruler, J., and Dickson, J., dissenting from denial of transfer). Because our supreme court was evenly divided upon the question of whether to accept transfer, transfer was denied and the decision of the Court of Appeals was affirmed pursuant to Ind. Appellate Rule 11(B)(5).

On June 1, 1989, the Indiana Supreme Court decided the case of Kelly, supra. In Kelly, the defendant operated a motor vehicle while intoxicated, causing the death of one person and the serious injury of another. He was convicted of OWI causing death and OWI resulting in serious bodily injury. Our supreme court summarily affirmed this court's decision holding that the legislature intended multiple egregious results to increase the penalty for operating while intoxicated, and not to increase the number of crimes arising from a single incident of operating while intoxicated. Id.

Several months after the Kelly decision, Powell wrote a letter to the trial court citing Kelly and its applicability to his case. After the appointment of counsel and submission of memoranda of law, the trial

Page 333

court denied Powell's motion to correct erroneous sentence. This appeal ensued.
DISCUSSION AND DECISION

Powell argues he should be given the benefit of the Kelly decision. Because Kelly was decided after Powell's sentence was imposed, the issue in this case is one of retroactivity. Yet Powell fails even to mention retroactivity until his reply brief. Powell appears to argue, without citation to authority, that his First Amendment rights were violated when Chief Justice Shepard did not participate in the decision on Powell's petition to transfer. Powell has not chosen the appropriate vehicle to assert such a claim. A motion to correct erroneous sentence should be used only in those instances where the sentence is erroneous on its face. Jones v. State (1989), Ind., 544 N.E.2d 492. The same rule applies to Powell's argument that he has been denied his constitutional right to even-handed application of the law. A petition for post-conviction relief is the appropriate procedure to...

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16 practice notes
  • Luurtsema v. Comm'r Of Correction, SC 18383
    • United States
    • Supreme Court of Connecticut
    • January 5, 2011
    ...to benefit from a new interpretation of a criminal statute. See Bunkley v. State, 833 So. 2d 739, 743-44 (Fla. 2002); Powell v. State, 574 N.E.2d 331, 334 (Ind. App. 1991);Page 9 Clem v. State, 119 Nev. 615, 626-28, 81 P.3d 521 (2003); State v. J.A., 398 N.J. Super. 511, 519, 942 A.2d 149 (......
  • Luurtsema v. Comm'r of Correction., No. 18383.
    • United States
    • Supreme Court of Connecticut
    • January 5, 2011
    ...to benefit from a new interpretation of a criminal statute. See Bunkley v. State, 833 So.2d 739, 743–44 (Fla.2002); Powell v. State, 574 N.E.2d 331, 334 (Ind.App.1991); Clem v. State, 119 Nev. 615, 626–28, 81 P.3d 521 (2003); State v. J.A., 398 N.J.Super. 511, 519, 942 A.2d 149 (2008); Sant......
  • Gutermuth v. State, No. 10A01-0509-CR-410.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 2006
    ...a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]" Powell v. State, 574 N.E.2d 331, 334 (Ind.Ct.App. 1991), trans. denied (1992).9 To put it mildly, the retroactive application of Blakely is likely to "have a highly detrim......
  • Shoulders v. State, No. 49A02-9012-PC-726
    • United States
    • Indiana Court of Appeals of Indiana
    • September 23, 1991
    ...of new law in situations where the same issue had been previously argued on direct appeal. See Powell v. State (1991), Ind.App., 574 N.E.2d 331; Terry v. State (1990), Ind.App., 563 N.E.2d 1301 (res judicata barred petition because new rule was both announced and applied in direct appeal); ......
  • Request a trial to view additional results
16 cases
  • Luurtsema v. Comm'r Of Correction, SC 18383
    • United States
    • Supreme Court of Connecticut
    • January 5, 2011
    ...to benefit from a new interpretation of a criminal statute. See Bunkley v. State, 833 So. 2d 739, 743-44 (Fla. 2002); Powell v. State, 574 N.E.2d 331, 334 (Ind. App. 1991);Page 9 Clem v. State, 119 Nev. 615, 626-28, 81 P.3d 521 (2003); State v. J.A., 398 N.J. Super. 511, 519, 942 A.2d 149 (......
  • Luurtsema v. Comm'r of Correction., No. 18383.
    • United States
    • Supreme Court of Connecticut
    • January 5, 2011
    ...to benefit from a new interpretation of a criminal statute. See Bunkley v. State, 833 So.2d 739, 743–44 (Fla.2002); Powell v. State, 574 N.E.2d 331, 334 (Ind.App.1991); Clem v. State, 119 Nev. 615, 626–28, 81 P.3d 521 (2003); State v. J.A., 398 N.J.Super. 511, 519, 942 A.2d 149 (2008); Sant......
  • Gutermuth v. State, No. 10A01-0509-CR-410.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 2006
    ...a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]" Powell v. State, 574 N.E.2d 331, 334 (Ind.Ct.App. 1991), trans. denied (1992).9 To put it mildly, the retroactive application of Blakely is likely to "have a highly detrim......
  • Shoulders v. State, No. 49A02-9012-PC-726
    • United States
    • Indiana Court of Appeals of Indiana
    • September 23, 1991
    ...of new law in situations where the same issue had been previously argued on direct appeal. See Powell v. State (1991), Ind.App., 574 N.E.2d 331; Terry v. State (1990), Ind.App., 563 N.E.2d 1301 (res judicata barred petition because new rule was both announced and applied in direct appeal); ......
  • Request a trial to view additional results

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