Riffe v. State, 92A03-9606-CR-197

• Citation: 675 N.E.2d 710
• Decision Date: 23 December 1996
• Docket Number: No. 92A03-9606-CR-197,92A03-9606-CR-197
• Parties: Jackie RIFFE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 710

675 N.E.2d 710

Jackie RIFFE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 92A03-9606-CR-197.

Court of Appeals of Indiana.

Dec. 23, 1996.

Rehearing Denied Feb. 25, 1997.

Transfer Denied April 29, 1997.

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

HOFFMAN, Judge.

Appellant-defendant Jackie Riffe appeals the sentence imposed for his convictions for robbery, as a Class A felony; battery, as a Class A misdemeanor; rape, as a Class A felony; and two counts of criminal deviate conduct, as Class A felonies.

The facts as set forth by our supreme court in Riffe v. State, 464 N.E.2d 333 (Ind.1984), are as follows:

After meeting and drinking in a bar, [Riffe] and the alleged victim, D. J., bought some beer and drove together to a secluded area, where [Riffe] beat her with his fists, stole approximately $140 from her purse, burned her breast with his cigarette, forced a tire iron or other metal object into her vagina and struck her repeatedly with it, forced his penis into her vagina and anus, and abandoned her, nude and beaten in a cornfield.

Id. at 334.

On September 30, 1981, Riffe was charged by information with robbery, battery, rape, and two counts of criminal deviate conduct. Riffe was tried before a jury, convicted of all five offenses, and sentenced to a total term of sixty years. At the time of Riffe's conviction and sentencing, IND.CODE § 35-50-1-2 (1981 Supp.), the sentencing statute governing consecutive and concurrent terms, provided that "the court shall determine whether terms of imprisonment shall be served concurrently or consecutively" and placed no limitation upon the court's authority to impose consecutive sentences.

At Riffe's sentencing hearing, held on April 26, 1982, the trial court imposed thirty years for each of his convictions for robbery, rape, and criminal deviate conduct, and one year for his battery conviction. The trial court ordered Riffe's robbery and battery convictions served concurrently. Riffe's convictions for rape and criminal deviate conduct were also ordered served concurrently to each other, but consecutive to the rape and battery sentences. Upon direct appeal, our supreme court affirmed Riffe's convictions.

On February 14, 1991, Riffe filed a Petition for Post-Conviction Relief alleging, inter alia, that the trial court failed to provide a statement of reasons for the sentence imposed. The post-conviction court denied Riffe's petition; however, it also vacated the portion of the original sentencing order requiring the rape and criminal deviate conduct sentences be served consecutive to the robbery and battery sentences, finding that the trial judge failed to include a statement "identifying the aggravating and mitigating circumstances found or the reasoning for the selected sentence."

On April 10, 1995, the trial court held a new sentencing hearing to determine solely whether the sentences originally imposed upon Riffe for his convictions for rape and criminal deviate conduct should run consecutive to the sentences imposed for his convictions for robbery and battery. Thereafter, the trial court reinstated Riffe's original sentence and provided a statement, identifying no mitigating circumstances and several aggravating circumstances, supporting its decision that Riffe's sentences should be served consecutively.

On July 1, 1994, the amended version of IND.CODE § 35-50-1-2 (1994 Supp.) became effective. The amendment imposed a previously nonexistent restraint upon the trial court's discretion to impose consecutive sentences. On February 9, 1996, Riffe filed a Verified Petition for Permission to File a Belated Praecipe in order to appeal the sentence imposed by the trial court in 1995. The trial court granted Riffe permission to file a belated praecipe. Thereafter, the State filed with this Court a Verified Motion to Dismiss, arguing that the trial court lacked the authority to grant Riffe permission to file a belated praecipe. ¹ We denied the State's motion to dismiss. This appeal ensued.

On appeal, Riffe raises the following issue: whether, upon his resentencing, he was entitled to the benefit of the amended version of IND.CODE § 35-50-1-2 (1994 Supp.) which limits the consecutive sentencing a trial court may impose.

Riffe argues that the trial court erred when it failed to resentence him pursuant to the amended version of IND.CODE § 35-50-1-2 which imposed a previously nonexistent restraint upon the trial court's discretion to impose consecutive sentences. Riffe maintains that he is entitled to be resentenced under the amended version of the statute that was in effect at the time of his resentencing, because the amended statute reduces the maximum sentence to which he would be subjected.

The legislature fixes penalties for crimes, and a trial court's discretion in sentencing does not extend beyond the limits prescribed by statute. Elkins v. State, 659 N.E.2d 563, 564 (Ind.Ct.App.1995). Within statutory boundaries, sentencing is conducted at the discretion of the trial court, and a sentence will not be disturbed on appeal unless it amounts to a manifest abuse of discretion. Id. However, where a court imposes an erroneous sentence, courts have a duty to correct it. Id.

As a general rule, the law in effect when the crime was committed controls sentencing. Rowold v. State, 629 N.E.2d 1285, 1288 (Ind.Ct.App.1994). An exception to the general rule is that when the penalty for a crime is decreased by an ameliorative amendment enacted after the commission of the crime but prior to the defendant's sentencing, the defendant may take advantage of the ameliorative provisions. Id. (Emphases added.)

Under the version of IND.CODE § 35-50-1-2 in effect at the time Riffe committed the offense, there was no limitation as to the trial court's authority to impose consecutive sentences. The relevant portion of the amended statute, which Riffe argues he is entitled to be sentenced under, reads that a court "may order terms of imprisonment to be served consecutively" but--except for murder and certain felonies resulting in serious bodily injuries--

the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

IND.CODE § 35-50-1-2(c). The 1994 amendment to IND. CODE § 35-50-1-2, which imposed a previously nonexistent limitation upon the trial court's authority to impose consecutive sentences, is ameliorative in nature. Tedlock v. State, 656 N.E.2d 273, 276 (Ind.Ct.App.1995). Nevertheless, the trial court was correct in resentencing Riffe under the version of the statute in effect at the time Riffe committed his offenses.

In State v. Messenger, 650 N.E.2d 702 (Ind.Ct.App.1995), where this Court was faced with the issue of whether the underlying offense of operating while intoxicated (OWI) remained intact after the OWI with a prior conviction was vacated, we likened an enhanced conviction of OWI with a prior to the habitual offender statute. In so doing, we stated that:

In the habitual offender context, once a defendant has been adjudicated an habitual offender, he does not receive a separate sentence for that status. Rather, the felony for which the defendant is convicted is enhanced by a number of years. [Citations omitted.] A defendant's successful challenge to the habitual offender determination does not affect the predicate offense. Rather, the enhancement is vacated but the underlying charge remains undisturbed.

Id. at 704.

Applying this reasoning to Messenger, we found that the same result was required where a defendant successfully challenges the enhancement of his conviction of OWI. We held that though the advanced portion of Messenger's enhancement may be vacated, the underlying offense is left undisturbed. Id. Further:

Although the [trial court's] order [vacating Messenger's conviction for OWI with a prior] is dated August 13, 1993, we do not interpret it as a judgment of conviction for a new charge as of that date. Rather, Messenger was convicted of the predicate offense of OWI as a Class A misdemeanor on April 19, 1991. Only the enhanced portion of the offense was set aside on August 13, 1993. Because Messenger's 1991 conviction of OWI was not affected by the [trial court's] order, Messenger had a prior conviction of OWI when the State filed the instant charges.

Id. at 704-05.

Furthermore, in Davidovic v. State, 408 N.E.2d 647, 651 (Ind.Ct.App.1980), this Court stated that "[i]n Indiana, sentencing is a final judgment. [Citation omitted]. If the defendant's judgment is final prior to the effective date of the [ameliorative] statute, then he cannot obtain the advantages of the ameliorative sentencing provisions." This Court stated in Dowdell v. State, 166 Ind.App. 395, 399, 336 N.E.2d 699, 701, n. 4 (1975), trans. denied, that when final judgment was entered at the time of sentencing, the statutory amendments effective after final judgment had no effect on the sentence imposed.

Here, Riffe committed the offenses for which he was convicted in September 1981, and was sentenced for the convictions in April 1982. Thereafter, Riffe filed a postconviction relief petition challenging, inter alia, his sentence on the ground that at the sentencing, the trial judge failed to include a statement of his reasons for selecting the sentence imposed. The post-conviction court denied Riffe's petition; however, the court also determined that the trial court failed to provide a statement of reasons supporting the sentence imposed. Upon making the determination, the post-conviction court...