Sides v. State

• Citation: 480 N.E.2d 572
• Decision Date: 22 July 1985
• Docket Number: No. 2-284A38,2-284A38
• Parties: Anthony SIDES, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Court of Appeals of Indiana

Page 572

480 N.E.2d 572

Anthony SIDES, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 2-284A38.

Court of Appeals of Indiana Second District.

July 22, 1985.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Anthony Sides (Sides) was arrested on April 3, 1982, and charged with burglary and resisting arrest (crime one). He was released on bond pending trial and on May 12, 1982, committed unrelated offenses of burglary and theft (crime two). On July 30, 1982, Sides pleaded guilty to crime one and received a five (5) year sentence. Pursuant to a plea agreement, on September 23, 1982, Sides pleaded guilty to the burglary charge of crime two and received a three (3) year executed sentence to run consecutively with the sentence on crime one. ¹ In his petition for post-conviction relief, Sides contended that his plea of guilty on crime two was not knowing, intelligent and voluntary due to an erroneous advisement at the guilty plea proceedings. ²

Specifically, Sides argues that I.C. 35-50-1-2 does not require consecutive sentencing under these facts and that the trial court's advisement to the contrary renders Sides' guilty plea invalid. This statute provides:

"Consecutive and concurrent terms.--(a) Except as provided in subsection (b) of this section, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.

(b) If a person commits a crime:

(1) After having been arrested for another crime; and

(2) Before the date he is discharged from probation, parole, or a term of imprisonment imposed for that other crime;

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed." (Burns Code Ed.Repl.1985).

At the guilty plea proceedings, the trial court advised Sides that the court had no option but to impose consecutive sentences for crimes one and two according to the provisions of I.C. 35-50-1-2. This advisement was prompted by the prosecutor's assertion that consecutive sentencing was required because Sides was out on bond for crime one at the time he committed crime two. Sides' defense counsel did not object to the advisement. The trial court thereafter accepted the guilty plea and sentenced Sides in accordance with the plea agreement which recited that the State would recommend the three (3) year sentence to be served consecutively.

It is well established that a trial court is required to comply strictly with the advisements enumerated in I.C. 35-35-1-2, prior to accepting a defendant's guilty plea. Taylor v. State (1984) Ind., 459 N.E.2d 37; German v. State (1981) Ind., 428 N.E.2d 234. That statute requires, in part, that the trial court inform the defendant of the range of sentencing possible, the effect of prior convictions, and any possibility of the imposition of consecutive sentences. Avery v. State (1984) Ind., 463 N.E.2d 1088. Failure to properly advise the defendant vitiates the guilty plea. German, supra.

Sides, however, does not allege that a particular advisement was omitted. Rather, he alleges that the advisement he received was an erroneous and material misstatement of the applicable law. This misinformation, he argues, adversely affected the voluntariness of the guilty plea. We agree that a defendant cannot meaningfully plead guilty if he is not properly informed of the consequences of his plea. See Catt v. State (1982) 2d Dist., Ind.App., 437 N.E.2d 1001 (defendant informed he was pleading guilty to a misdemeanor when he was actually pleading guilty to a felony). Therefore, if the advisement concerning the application of the mandatory consecutive sentences provision was erroneous, Sides' guilty plea may not be held to have been voluntarily given. ³

A defendant subject to multiple sentences will ordinarily serve them concurrently. See Allen v. State (1983) Ind., 453 N.E.2d 1011; Brown v. State (1982) Ind., 442 N.E.2d 1109. In appropriate circumstances, consecutive sentences may be imposed within the discretion of the trial judge who must assess and identify the mitigating and aggravating circumstances relevant to the sentencing determination. Abercrombie v. State (1981) Ind., 417 N.E.2d 316. Consecutive sentences, as a matter of law, must be imposed upon a defendant whose multiple offenses trigger the application of I.C. 35-50-1-2(b), supra.

The State contends Sides' second crime triggered the mandatory consecutive sentences provision of I.C. 35-50-1-2 and, therefore, the trial court's advisement to that effect was proper. In support of its argument that the mandatory consecutive sentences section is not contingent upon a defendant being "on" parole, probation or serving a term of imprisonment at the time of the second offense, the State cites Ramirez v. State (1983) 2d Dist., Ind.App., 455 N.E.2d 609, aff'd by an equally divided Court (1985) --- U.S. ----, 105 S.Ct. 1860, 85 L.Ed.2d 866. In Ramirez, the defendant argued that because he was free on bond at the time he committed the second offense he was not subject to the mandatory consecutive sentences provision. This court noted that the statutory language did not expressly require that a defendant be "on" parole, probation or imprisoned, and that the statute was triggered if the second crime occurred after

(a) the arrest for crime one

(b) but, prior to discharge from parole, probation or imprisonment imposed for the earlier crime.

Although it appears from the face of the statute and the particular language employed therein, that our General Assembly intended this provision apply to offenders, like Sides, whose multiple offenses occur during a considerably brief time span, we are precluded from following the course indicated by our Ramirez decision. A very recent...