Russell v. State

• Decision Date: 11 October 1979
• Docket Number: No. 3-277A37,3-277A37
• Parties: Jeffery A. RUSSELL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 791

395 N.E.2d 791

182 Ind.App. 386

Jeffery A. RUSSELL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-277A37.

Court of Appeals of Indiana, Third District.

Oct. 11, 1979.

Harold W. Myers and Thomas L. Ryan, Fort Wayne, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Jeffery A. Russell appeals from a judgment entered by Steuben Circuit Court upon a jury verdict of guilty of the offense of illegal possession of marijuana of an aggregate weight of more than 30 grams. ¹

The jury verdict read, in part:

"We, the Jury, find the defendant, Jeffery A. Russell, guilty of possession of a controlled substance as charged in the Information, and that he be imprisoned in the State Prison for a determinate period of two (2) years . . ."

The trial court initially sentenced the defendant as follows:

"IT IS NOW ORDERED AND ADJUDGED by the Court that the defendant, Jeffery A. Russell, having been adjudged guilty of a crime of Possession of a Controlled Substance as charged by the information subject to suspended execution of sentence hereafter set forth, that he is and is hereby committed to the Custody of the Department of Correction for classification and confinement for a period of two years. . . . The Court finds that by reason of the character of defendant and the facts and circumstances surrounding the commission of the crime, the interests of society does not demand or require that the defendant shall suffer the full penalty imposed by law.

"IT IS THEREFORE ORDERED that the execution of the sentence of imprisonment be suspended during defendant's good behaviour and so long as he complies with all terms and conditions except for a period of six months during which period the defendant shall be imprisoned at the Indiana State Farm. The conditions of probation are . . ."

The defendant filed a motion to correct errors, alleging various errors at trial and in sentencing. The State also filed a motion to correct errors, alleging errors in sentencing. The State contended, Inter alia, that the trial court had no authority to suspend a part of a sentence but was constrained by statute to suspend all or none. The State requested correction of the sentence accordingly.

The court denied the defendant's motion to correct errors, granted the State's motion, and modified its earlier judgment as follows:

"Hearing held on State's Motion to Correct Errors and/or Sentence. Motion granted and that portion of the sentencing judgment entered on August 16, 1976, which suspends part of the two year sentence and the probation provisions are now vacated. The defendant is therefore committed to the custody of the Department of Correction for two years less three days good time credit."

Defendant then filed a supplemental motion to correct errors based on this modification of the court's earlier judgment.

In his appeal, Russell raises seven issues for review:

(1) whether the trial court erred in sustaining the State's motion to correct errors and in modifying its initial judgment;

(2) whether the trial court erred in sentencing him under the penalty provisions effective when the offense occurred rather than the amended penalty provisions effective when he was tried and sentenced;

(3) whether the trial court erred in overruling his motion to suppress and in admitting into evidence marijuana seized pursuant to a search warrant (4) whether the trial court erred in admitting State's Exhibits Nos. 1, 2 and 3;

(5) whether the trial court erred in giving court's Final Instruction No. 7;

(6) whether the trial court erred in giving Final Instructions Nos. 8 and 9 and in overruling his motion for judgment on the evidence at the close of the State's case; and

(7) whether the evidence was sufficient to support the verdict.

The conviction is affirmed and the cause remanded with instructions to reinstate the original sentence as to the term of imprisonment.

Issue I

Whether the trial court erred in granting the State's motion to correct errors and modifying the sentence.

Defendant initially argues that the State was not authorized under IC 1971, 35-1-47-2 (Burns 1979 Repl.) ² and IC 1971, 35-1-43-2 (Burns Code Ed.) ³ to file its motion to correct errors because these statutes confine appeals by the State in criminal causes to reserved questions of law upon an acquittal. Defendant here was convicted and he characterizes the issue raised by the State's motion as a question of fact, whether the trial court abused its discretion in its initial sentencing decision. This argument fails for two reasons.

First, the State's motion to correct errors alleged, not that the trial court abused its discretion, but that it had no discretion in sentencing under the applicable statutes, clearly a question of law.

Second, while it is true that the State can appeal reserved questions of law under IC 1971, 35-1-47-2 only upon a defendant's acquittal, State v. Eakins (1976), Ind.App., 348 N.E.2d 681, the State in this case did not appeal nor attempt to appeal the judgment. A motion to correct errors is merely a condition to appeal under Ind. Rules of Procedure, Trial Rule 59(G).

The proper procedure to be followed by the State in challenging the alleged error in sentencing the defendant in the case at bar would have been to seek a writ of mandate. See : State v. Palmer (1979), Ind., 386 N.E.2d 946; State ex rel. Palmer et al. v. Circuit Court etc. (1963), 244 Ind. 297, 192 N.E.2d 625; Ware v. State (1963), 243 Ind. 639, 189 N.E.2d 704; But see: State v. Kuczynski (1977), Ind.App., 367 N.E.2d 8. A precondition to the application for a writ is a written motion brought to the attention of the trial court. Ind. Rules of Procedure for Original Actions, Rule (B)(1).

The trial court in the case at bar denominated the State's motion a "motion to correct errors and/or sentence", treated it as a motion under Rule (B)(1), and properly addressed it on the merits.

Defendant next contends the trial court did have the discretion to suspend part of his sentence and that the trial court abused its discretion in modifying the original sentence.

Under IC 1971, 35-24.1-4-1(c) (1974 Burns Supp.), the penalty for illegal possession of more than 30 grams of marijuana is a determinate prison term of not less than two nor more than ten years. The penalty is one that may be suspended. IC 1971, 35-7-1-1 (Burns Code Ed.). ⁴

The State first argues that the trial court and the defendant are bound by the jury verdict which assessed a two-year term of imprisonment. The ultimate sentence received by a defendant, however, rests with the court and not with the jury in trials by jury. Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305.

The State's second contention, that IC 1971, 35-7-1-1 does not allow suspension of part of a sentence, was raised in State v. Kuczynski, supra, a case in which the defendant was convicted of second-degree burglary and sentenced to two to five years, with all but one year suspended. The Court found the trial court's action to be within its authority, saying, at 367 N.E.2d 9-10:

"The State's second issue questions the trial court's authority to suspend only a portion of the sentence for the reason that the then existing statute relating to suspended sentences, IC 1971, 35-7-1-1 (Burns Code Ed.), did not expressly allow such a procedure. The State, citing State ex rel. Gash v. Morgan County Superior Court (1972), 258 Ind. 485, 283 N.E.2d 349, argues that the suspension of sentences and the revocation thereof is strictly governed by statute.

"In defining the parameters of judicial authority in sentencing, we observe that there is no serious objection to the proposition that, under the facts of this case, the trial judge could have properly suspended all or none of the sentence pursuant to IC 1971, 35-7-1-1 (Burns Code Ed.). See: Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305.

"Furthermore, the then existing IC 1971, 35-7-2-1 (Burns Code Ed.) permits the trial court to impose conditions on probation 'as it may deem best'. Given the general rules stated in Ewing v. State (1974), Ind.App., 310 N.E.2d 571, that probation, if granted, should serve the best interests of society and the individual and that a trial judge has '. . . broad power to impose conditions designed to serve the accused and the community . . .', we cannot condemn the trial court's action in this case.

"If the requirement that Kuczynski serve a year in prison is viewed as a condition of probation, any error that may exist is minimized, especially when one considers that no error would have existed if all or none of the sentence was served."

Under Grzesiowski and Kuczynski, the trial court, in its discretion, may, after considering the presentence report, suspend any sentence or penalty or part thereof fixed by a jury, or place the defendant on probation.

Following the filing of a presentence report, the trial court in the case at bar conducted a sentencing hearing and observed for the record:

"I have decided, Mr. Russell, that you should be imprisoned for a period of six months. Therefore, the formal entry will be that you will be sentenced to two years. The court will suspend all except six months. The six months will be served at the Indiana State Farm. I do not want you to be at other institutions and that's the reason I am not going toward shock probation, which would be a two year with probation after six months."

Whereupon, the court entered its original sentence, basing its decision upon "the character of defendant and the facts and circumstances surrounding the commission of the crime", and "the interests of society."

After hearing argument on the State's motion to correct errors and prior to modifying the sentence, the court observed:

"As to the State's motion I don't really know how to solve the dilemma. I've tried to...