Sims v. State
| Decision Date | 06 April 1988 |
| Docket Number | No. 1185S444,1185S444 |
| Citation | 521 N.E.2d 336 |
| Parties | James SIMS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Indianapolis, Carolyn J. Fitch, Sp. Asst. to the Public Defender of Indiana, Ft. Lupton, Colo., for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in appellant's conviction of Commission of a Felony (robbery) While Armed, for which he received a ten (10) year sentence, Involuntary Manslaughter, and First Degree Murder, for which he received a life sentence. The trial court vacated the Involuntary Manslaughter charge. Upon direct appeal to this Court, his conviction and sentence for Felony Murder were affirmed and his conviction for armed robbery was vacated. Sims v. State (1977), 267 Ind. 215, 368 N.E.2d 1352.
Appellant now asserts that four errors occurred in the denial of his petition for post-conviction relief. Appellant believes he has been convicted of the wrong crime. He asserts that the facts in his case justify a finding of involuntary manslaughter as defined in Ind.Code Sec. 35-13-4-2 (repealed), and not felony murder. Therefore, the trial court should not have vacated his involuntary manslaughter charge but should have dismissed the felony murder charge instead.
The purpose of the post-conviction relief process is for raising issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Appellant did not pursue this argument on direct appeal, though it was available to him at that time. Therefore, this issue has been waived for post-conviction review. Kimble v. State (1983), Ind., 451 N.E.2d 302.
Further, we held in Holland v. State (1976), 265 Ind. 216, 352 N.E.2d 752 that when a defendant is sentenced on both a murder and felony murder charge when only one homicide occurred, the trial court should impose a sentence on the greater offense only. Therefore, we find the trial court did not err in vacating appellant's involuntary manslaughter charge.
Appellant argues that the application of the felony murder rule stated in Ind.Code Sec. 35-13-4-1 and the accessory rule of Ind.Code Sec. 35-41-2-4 was unconstitutional in his case and amounted to fundamental error.
Appellant asserts that as the driver of the getaway car, he neither knew or expected that his accomplice would shoot the victim. Because he was convicted of felony murder without any proof of his mens rea or actus reus, he contends his convictions violate his constitutional rights. He believes his life sentence is manifestly excessive because of his relatively minor role in the robbery and killing and because his sentence is substantially greater than the plea bargain agreement offered to him which he refused and his confederate accepted.
Again, this issue was known to appellant upon direct appeal but not asserted by him. Therefore, this issue was waived. Kimble, supra.
Appellant has not alleged reversible error even if the issue were not waived. Upon the same complaint about the felony murder statute, this Court has held that the intent to kill is not an element of felony murder, and the only intent required to be proven is the intent to commit the underlying felony. Brown v. State (1983), Ind., 448 N.E.2d 10.
Further, the acts of one accomplice are imputed to the others. It is not necessary for an accused to know of each separate action of a confederate which resulted in the offense. Tessely v. State (1978), 267 Ind. 445, 370 N.E.2d 907. Appellant was offered a plea bargain agreement and unlike his accomplice, he turned it down. When one defendant proceeds to trial and his accomplice pleads guilty, their sentences need not be identical. McDonald v. State (1982), Ind., 439 N.E.2d 588.
Considering the above-stated authority, we cannot agree with appellant that his role in the offense and the plea bargain he refused should be considered in determining whether his sentence is manifestly unreasonable.
Appellant believes the trial court committed reversible error in granting the State's oral motion for continuance. Appellant's first trial date was April 14, 1976. On April 13, 1976, appellant's motion for continuance was granted and his trial was reset for August 4, 1976. The granting of the State's oral motion for continuance delayed the trial until August 9, 1976, at which time one of the victims returned from vacation and was available to testify.
Appellant argued on direct appeal that the trial court erred in granting the State's oral motion for continuance because the State failed to submit a written motion pursuant to Ind.Code Sec. 35-1-26-2 (repealed). We held the statute required a written motion for continuance only when so requested by the defendant. Because the record disclosed no such request, appellant's argument was without merit. Sims, supra 368 N.E.2d at 1355.
Appellant now asserts that he did in fact request that the State submit a written motion for continuance, but due to his appellate counsel's inadequacy, a transcript of the hearing on that motion was not placed in the record for our review on direct appeal. The record shows the State's motion for continuance was taken under advisement and the hearing continued two days later. Though no transcript was included in the record which contains appellant's request for a written motion, he has included for our review a transcript of the second half of the hearing. The transcript shows that defense counsel was awaiting the State's written motion for continuance, but the State did not submit one and their oral motion for continuance was granted.
During the post-conviction relief hearing, appellant's trial counsel testified that after the State made its oral motion for continuance, he did request the continuance be reduced to writing.
The ruling on a motion for continuance falls within the discretion of the trial court when a statute has not...
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...Where an item was available to the defendant on direct appeal but not pursued, it is waived for post-conviction review. Sims v. State (1988), Ind., 521 N.E.2d 336, 337. An issue which is raised and determined adverse to petitioner's position is res judicata. Ingram v. State (1987), Ind., 50......
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