Powell v. State

Decision Date26 June 1991
Docket NumberNo. 22A01-9009-PC-369,22A01-9009-PC-369
Citation574 N.E.2d 331
PartiesLeland C. POWELL, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
CourtIndiana Appellate Court

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

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 raise these claims. Id.

Even if Powell appropriately had raised these issues, reversal would not be warranted. Powell cites no authority for the proposition that a defendant has a constitutional right to have every Justice on our supreme court participate in his appeal. Additionally, we cannot assume that Chief Justice Shepard would have voted in Powell's favor had he participated in the transfer decision. Powell's argument that he and Kelly were similarly situated, and even-handed application of the law dictates that their relief thus must be the same, also fails. The cases he cites in support of this proposition only marginally mention even-handedness, and the concept is discussed in relation to the rule that a state procedural rule does not bar federal relief if the state procedural rule is not followed strictly or regularly. Johnson v. Mississippi (1988), 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575; Wheat v. Thigpen (5th Cir.1986), 793 F.2d 621, cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759. These cases have no application here.

We thus turn to the issue properly raised by the motion to correct erroneous sentence: whether Powell's sentence is erroneous because he has been given two convictions and sentences when he should have been subject to only one conviction and sentence. 1 In Kelly, our supreme court held only one conviction and sentence may be had for OWI causing death or serious bodily injury when only one incident of operating while intoxicated has occurred regardless of how many victims were killed or seriously injured. It is clear that, had Kelly been decided prior to the imposition of Powell's conviction and sentence, Powell would be held accountable for only one conviction and sentence for OWI resulting in death. Because Kelly was decided subsequent to Powell's sentencing, however, we must determine whether to give the decision retroactive effect.

Our supreme court did not state that Kelly was to be applied retroactively. The Constitution neither requires nor prohibits a new judicial rule from being given retroactive effect. Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649; Rowley v. State (1985), Ind., 483 N.E.2d 1078. New rules for the conduct of criminal prosecutions are to be applied retroactively to cases pending on direct review or not yet final when the new rules are announced. Ramos v. State (1989), Ind.App., 541 N.E.2d 300, trans. denied. At the time our supreme court decided Kelly, Powell's case was no longer pending direct review. 2

A new rule may apply retroactively to a case on collateral review. Id. The criteria relevant in deciding whether a particular rule is to be applied retroactively to a case on collateral review include: the purpose to be served by the new standards, the extent of reliance by law enforcement authorities on the old standards, and the effect of a retroactive application of the new standards on the administration of justice. Griffith, supra; Rowley, supra; Ramos, supra. "Where a new judicial rule only tends incidentally to improve or enhance the reliability of the truth-finding process,...

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