Sides v. State, 49S02-8603-PC-309

• Decision Date: 26 March 1986
• Docket Number: No. 49S02-8603-PC-309,49S02-8603-PC-309
• Parties: Anthony SIDES, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 318

490 N.E.2d 318

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

No. 49S02-8603-PC-309.

Supreme Court of Indiana.

March 26, 1986.

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.

SHEPARD, Justice.

As part of a series of cases before the Court, we return to the construction of a section of the Indiana Code which requires that criminal sentences be served consecutively under certain situations. Ind.Code Sec. 35-50-1-2.

Anthony Sides was arrested on April 3, 1982, and charged with burglary and resisting arrest. While out on bond awaiting trial on these charges, he committed the offenses of burglary and theft. Subsequently, he pleaded guilty to the first burglary and received a sentence of five years. Later, he pleaded guilty to the second burglary and received a three year sentence to run consecutively.

Sides filed a petition for post-conviction relief, claiming that his plea to the second crime was involuntary, unknowing, and unintelligent, on the basis that the advisement he received from the trial judge was erroneous. The trial judge told him that if he pleaded guilty to the second burglary the sentence for that offense would be ordered served consecutive to the sentence for the first burglary sentence because the law required it. Martin's plea agreement with the prosecutor also provided that the second sentence would be consecutive.

The court hearing his petition denied relief. The Court of Appeals initially reversed finding that the advisement was deficient under Hutchinson v. State (1985), Ind., 477 N.E.2d 850. Sides v. State (1985), Ind.App., 480 N.E.2d 572. On rehearing, the Court of Appeals concluded that the advisement correctly stated the law as it existed at the time of Sides plea and affirmed the decision of the trial court. Sides v. State (1985), Ind.App., 482 N.E.2d 757.

We grant transfer in order to explore further the construction of this statute.

The language under consideration, Ind.Code Sec. 35-50-1-2, provides as follows:

(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 the sentences imposed.

In Hutchinson, supra, this Court considered a case in which the defendant committed a second crime while in custody awaiting trial on an earlier offense. The trial court had determined that consecutive sentences were required under the Code. We concluded that such was not the case because Hutchinson was not "on probation, parole, or serving a term of imprisonment at the time the other offenses were committed." Hutchinson, 477 N.E.2d at 857.

In a more recent case, we have held that the defendant need not have entered into his term of probation, parole, or imprisonment in order to come under the mandatory sections of the statute in a case in which the perpetrator was on appeal bond when he committed the second offense. Groff v. State (1986), Ind., 488 N.E.2d 711. As Justice Dickson wrote for the Court:

[W]here the subsequent offense occurs after sentencing for a prior crime, IC Sec. 35-50-1-2 applies to require mandatory consecutive terms. The use of the phrase "discharge from probation, parole, or a term of imprisonment" was not intended to limit application of the mandatory provision. The phrase is all inclusive. It covers all the possible ways in which a sentence finally terminates. This application of the statute is consistent with the actual holdings in both Hutchinson and Haggard [v. State (1983) Ind. 445 N.E.2d 969].

Groff, supra at 712,

Thus, while the language cited above from Hutchinson was too broad, the holding of the case is still good law. A defendant who has not been sentenced for offense one at the time he commits offense two does not fall under the mandatory sentences provision of the Code. Of course, the trial court still has the authority to sentence such an offender to consecutive terms upon review of any aggravating and mitigating circumstances.

Sides committed his second crime while he was awaiting trial on his first; thus, we conclude that, as in Hutchinson, the statute does not require that the sentences be served consecutively.

We now turn to Sides' request that his plea and conviction be set aside. Sides urges that his plea be found involuntary and unintelligent because he was misadvised on a material matter of law.

The prevailing case law has held that a defendant who is not advised according to the provisions of Ind.Code Sec. 35-35-1-2 is automatically deemed to have given an unintelligent and involuntary plea. German v. State (1981), Ind., 428 N.E.2d 234; Ford v. State (1985), Ind., 479 N.E.2d 1307.

The Court of Appeals found that the advisement given Sides was correct at the time it was rendered, citing Ramirez v. State (1983), 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 113. The Second District did note that another district had reached an opposite conclusion in dicta. Garrett v. State (1980), Ind.App., 411 N.E.2d 692. At a minimum it may be said that the advisement given Sides by the trial judge had a substantial basis in...