Richardson v. State
| Decision Date | 14 April 1983 |
| Docket Number | No. 1179S329,1179S329 |
| Citation | 447 N.E.2d 574 |
| Parties | Bruce Anthony RICHARDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
This cause is before us upon the trial court's statement of reasons for having ordered
a consecutive sentence, filed in response to our remand of December 22, 1981. Richardson v. State, (1981) Ind., 429 N.E.2d 229, 232. In response to the order, Defendant filed a Motion to Correct Errors, which raises two issues:
(1) Whether the trial court, who had neither tried the case nor imposed the sentence, erred in assuming jurisdiction upon our remand to carry out the mandate of this Court.
(2) Whether the trial court's statement of aggravating circumstances is adequate to support imposition of a consecutive sentence.
* * *
* * *
Defendant was sentenced to a total of twenty (20) years imprisonment upon convictions for five (5) counts of Robbery. The trial court imposed a ten year term of imprisonment per count with the term upon Count V to run consecutively to the concurrent terms imposed upon Counts I through IV. Prior to this Court's final disposition of Defendant's appeal, the judge, Judge Hall, who had imposed the original sentence, retired from the bench. Judge Hall's successor, Judge Hunt, following our remand, held a hearing at which Defendant objected to his assumption of jurisdiction. He argued that the judge, who had imposed the original sentence, should enter any statement of aggravating circumstances. Judge Hunt agreed, but found that Judge Hall was "not available," see Ind.R.Tr.P. 63(A), to perform this task. From the record, it appears that counsel did not contest this finding:
"BY MR. LOCKWOOD, COUNSEL FOR DEFENDANT: Your Honor, we would contend respectfully first of all that--uh--Judge Hall, who has retired and is not available now to do this, is the proper person, we say this with, of course, I hope the Court knows no disrespect to your Honor, but we believe that the term--the Court--as used in Indiana Code 35-4.1-4-3 would--uh which would be 35-50-1(A)-3 in Burns of 1979, should be interpreted to mean the Judicial officer who presided at the trial and the sentencing. * * *." R. at 15. (Emphasis added).
We agree with the general proposition that, after a remand for an adequate statement of aggravating circumstances to support an enhanced sentence, the judge who imposed the sentence should enter any subsequent orders. However, this case turns upon the facts and not the law. The record is devoid of anything to show that Judge Hall was either available or willing to carry out the order of this Court. Consequently, under Trial Rule 63(A) Judge Hunt properly assumed jurisdiction.
Judge Hunt stated on the record that he had read the transcript of the trial and had considered the presentence investigation report. He then confirmed Judge Hall's sentence for the following reasons:
Defendant first argues that finding No. 2 is inaccurate, claiming that he was free on an appeal bond. Even if the finding is inaccurate, as alleged, if the other finding constitutes an adequate statement of an aggravating circumstance, there is no error. Forrester v. State, (1982) Ind., 440 N.E.2d 475, 487; McNew v. State, (1979) Ind., 391 N.E.2d 607, 612. Consequently, Defendant also argues that the findings are too conclusory to comply with our decision in Page v. State, (1981) Ind., 424 N.E.2d 1021. We do not agree. The trial court may rely upon the defendant's history of criminal activity to enhance a sentence. Ind.Code Sec. 35-4.1-4-7(c)(2) (35-50-1A-7(c)(2) (Burns 1979)). In this case the trial court has set out Defendant's criminal record in sufficient detail to comply with the requirements of Page v. State, supra. Farina v. State, (1983) Ind., 445 N.E.2d 84 (opinion after remand); Reed v. State, (1982) Ind., 441 N.E.2d 441.
Defendant also faults the trial court for having failed to consider assertedly mitigating circumstances, i.e., his youth (he was...
To continue reading
Request your trial
-
Terry v. State
...have convened the grand jury. Under the plain language of T.R. 63(E), a judge pro tempore may convene a grand jury. See Richardson v. State (1983), Ind., 447 N.E.2d 574 (replacement judge may hold sentencing hearing and impose sentence); State ex rel. Indiana-Kentucky Elec. Corp. v. Knox Ci......
-
Wilson v. State
...of the successor judge will not be disturbed for failure to specifically find that the first judge is unavailable. 2 Richardson v. State (1983), Ind., 447 N.E.2d 574, 575. In this case the record does not indicate that Judge Bower was available. There is no reversible error on this portion ......
-
Cary v. State
...to support the trial court's enhancement of Defendant's sentences, we decline to address Defendant's contentions. See Richardson v. State, (1983) Ind., 447 N.E.2d 574, 575. With respect to Defendant's claim that the trial court failed to give effect to the mitigating factors, this Court has......
-
Beard v. State, 282S47
...and overly broad statutory provisions, the sentence was not otherwise supported by constitutionally valid criteria. See Richardson v. State, (1983) Ind., 447 N.E.2d 574 (Opinion after remand, at 3); Forrester v. State, (1982) Ind., 440 N.E.2d 475, 487; McNew v. State, (1979) Ind., 391 N.E.2......