Powers v. State
| Decision Date | 21 June 1989 |
| Docket Number | No. 23S00-8803-CR-339,23S00-8803-CR-339 |
| Citation | 539 N.E.2d 950 |
| Parties | Roger W. POWERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Roger W. Powers waived jury trial and in a trial to the court was found guilty of Escape for which he received a term of two (2) years, and was further found to be an habitual offender, for which his term was enhanced by thirty (30) years, for a total sentence of thirty-two (32) years.
Powers presents three issues for our review in this direct appeal:
1. insufficient evidence to support the conviction of escape;
2. imposition of the habitual offender sentence constituted cruel and unusual punishment; and
3. the habitual offender charge was filed as a result of prosecutorial vindictiveness and that the allegation and sentence constituted double jeopardy.
Roger Powers was incarcerated in the Fountain County, Indiana, jail on July 6, 1985. Powers was awaiting a sentencing hearing in the Fountain Circuit Court subsequent to his conviction for burglary in another cause identified as No. 85-S-39.
Powers and several other inmates, including Donald Vessels, were let into the exercise yard on the jail grounds in the early afternoon. Vessels and another inmate boosted Powers up along the fencing which encircled the yard. Powers was able to get through the ten foot high fence and depart from the area. Powers was subsequently apprehended and tried on these charges November 5, 1987.
Powers claims the evidence did not establish that he acted with the requisite intent for commission of the crime of escape and further believes the prosecutor failed to present sufficient evidence that he was in lawful detention at the time he left the jail grounds. There is no merit to Powers' claims on this issue. There was testimony from members of the Sheriff's Department that Powers was detained subsequent to his conviction of burglary while he awaited a sentencing hearing. Additionally, the prosecutor requested without objection that the court judicially notice its own docket with respect to the burglary charge of which Powers had been convicted in the Fountain Circuit Court and was awaiting sentencing. The fact that Powers went over the wall in the manner described above and left the area was sufficient evidence for the trial court to find or infer that Powers had intentionally fled from detention. Grimes v. State (1983), Ind., 454 N.E.2d 388, 392; Gulley v. State (1973), 156 Ind.App. 15, 16, 294 N.E.2d 630, 631.
Powers claims the imposition of the habitual offender sentence enhancing his term of incarceration by thirty (30) years constitutes cruel and unusual punishment and is manifestly unreasonable. Powers does not claim the habitual offender scheme of enhancement of sentence is unconstitutional per se, nor does he claim it was improperly done or failed in proof concerning his past criminal record. He claims the imposition of a thirty (30) year enhancement on his two (2) year term for escape, a Class D felony, constitutes cruel and unusual punishment and is manifestly unreasonable under the circumstances. In a similar claim in Craig v. State (1985), Ind., 481 N.E.2d 390, this Court noted the well established principle that enhanced sentences for repeat offenders under our habitual offender statute do not constitute cruel and unusual punishment.
So long as minimum Constitutional requirements are met, the determination of length of sentence is a matter of legislative policy. Whitacre [v. State (1980) ], 274 Ind. at 560, 412 N.E.2d [1202] at 1207.
Craig, 481 N.E.2d at 392. Powers submits that the Legislature had recently modified the habitual offender statute, Ind.Code Sec. 35-50-2-8, giving a trial court discretion in the enhanced term where the underlying conviction is a Class D felony. Powers concedes this modified statute did not apply to his sentencing. See Wilson v. State (1987), Ind., 513 N.E.2d 653, 657. The court was bound to sentence Powers to an enhanced term of thirty-two (32) years and had no discretion to reduce the habitual offender enhancement. The imposition of a thirty (30) year enhanced term to the underlying sentence was mandatory pursuant to IC 35-50-2-8(e); and Rule 2 of our Rules for the Appellate Review of Sentences, granting power to the trial court and this Court to analyze the appropriateness of the sentence, does not apply. Furthermore, the record shows Powers' prior criminal record indicates he escaped from jail while burglary and theft charges pended against him. He was ultimately convicted of these offenses and incarcerated. In 1978...
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Powers v. State
...did not challenge the sufficiency of the habitual offender adjudication. The appeal was rejected by our supreme court in Powers v. State (1989), Ind., 539 N.E.2d 950. Powers was sentenced to twenty (20) years imprisonment for the Burglary for which he had been incarcerated when he escaped f......
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Abron v. State
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Williams v. State
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