St. John v. State
| Decision Date | 20 October 1988 |
| Docket Number | No. 84A04-8802-PC-50,84A04-8802-PC-50 |
| Citation | 529 N.E.2d 371 |
| Parties | Barry ST. JOHN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, State Public Defender, John T. Ribble, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Defendant-appellant, Barry St. John, appeals the Vigo County Superior Court's denial of his second pro se petition for post-conviction relief. This appeal concerns St. John's 1978 burglary conviction. In May of 1978, St. John was charged with Burglary, a Class B felony. He pled guilty to this charge pursuant to a plea agreement, and received a suspended six year sentence with two years probation. While on probation, St. John committed a second burglary in May of 1980. He was found guilty of this offense by a jury and received an enhanced eight year sentence. After his second conviction, St. John's probation for the 1978 burglary was revoked and he received a three year sentence for the 1978 offense; the term to run consecutive to the eight year sentence. In September of 1983 St. John filed a pro se petition for post-conviction relief challenging his 1978 guilty plea and conviction. His petition was granted and St. John's 1978 guilty plea and conviction were vacated. Pursuant to a new plea agreement, St. John again pled guilty to the 1978 burglary in exchange for a reduced sentence of two years to be served concurrently with his eight year sentence. In September of 1986
St. John filed this pro se petition for post-conviction relief challenging his 1983 guilty plea and sentencing. After a hearing this petition was denied.
The main thrust of St. John's argument on appeal is that his 1983 guilty plea for the 1978 burglary was tainted. He claims that the sentence he received was erroneous in that the court was required by statute to impose consecutive rather than concurrent sentences for his 1978 and 1980 offenses. He argues that since his sentence is erroneous, he is continually at risk of having the State correct his sentence to a more severe consecutive sentence at some point in the future. Thus, St. John claims that the court must correct his sentence. Since the court must impose a more severe sentence than it originally imposed pursuant to the 1983 plea agreement, St. John claims that the court must allow him to withdraw his guilty plea. St. John claims that the prosecutor's action of entering into this agreement constituted misconduct and that his 1983 guilty plea was not knowingly or intelligently entered as he was not apprised that the sentence he would receive was erroneous. St. John also claims that he was denied effective assistance of counsel, and the right against double jeopardy because he received multiple punishment for the same offense.
We affirm.
On May 1, 1978, St. John was charged with Burglary, a Class B felony. He pled guilty to this charge on September 20, 1978, pursuant to a plea agreement, and received a suspended six year sentence with two years probation. While on probation, St. John committed a second burglary in May of 1980. On September 8, 1980, he was found guilty of this offense in a trial by jury and on October 1, 1980, the court sentenced St. John to an enhanced eight year term of imprisonment.
After St. John's second arrest and conviction, the court revoked St. John's probation and sentenced him to a three year term of imprisonment (for the 1978 offense) to be served consecutively to the eight year sentence. On September 6, 1983 St. John filed a pro se petition for post-conviction relief on the ground that his 1978 guilty plea was not knowingly, intelligently and voluntarily entered. A post-conviction relief hearing was held on October 31, 1983. At this hearing, pursuant to a new plea agreement, his petition was granted, his 1978 guilty plea was vacated, and he repled guilty to the 1978 burglary as a Class C felony--a lesser included offense to the crime charged in the information--in exchange for a reduced two year sentence to be served concurrently with his eight year term.
This appeal concerns St. John's second pro se petition for post-conviction relief filed on September 4, 1986. This petition challenged his 1983 guilty plea and sentence. At the hearing on August 3, 1987, the evidence revealed that after the filing of St. John's first petition for post-conviction relief in September of 1983, the State contacted St. John's counsel, Kathy Kelley, a Deputy State Public Defender, and offered not to oppose the granting of post-conviction relief if St. John would agree to plead guilty again and accept a two year sentence to run concurrently with his eight year sentence. Kelley informed St. John of the State's offer by letter dated October 3, 1983. Kelley then met with St. John on October 21, 1983 and thoroughly discussed the State's plea offer with him, emphasizing that the decision whether to pursue post-conviction relief or to agree to the plea agreement was his and that she could not make that decision for him.
The evidence at the 1987 hearing also revealed that shortly before the October 31, 1983 hearing was to commence, he questioned Kelley about the plea agreement. Kelley discussed St. John's options with him and explained that he could either plead guilty pursuant to the agreement or proceed with the post-conviction relief hearing. St. John advised Kelley at this time that he would plead pursuant to the plea agreement. At the October 31, 1983 hearing, St. John stated to the court that he
wanted the court to accept the plea agreement, that he was making his plea voluntarily, and that he was satisfied with the representation which he received from the State Public Defender's Office. After this hearing, the court denied St. John's second petition for post-conviction relief and this appeal ensued.
Before we discuss the issues we note that in a post-conviction proceeding the petitioner bears the burden of proving his grounds for relief by a preponderance of the evidence. Johnson v. State (1986), Ind., 502 N.E.2d 90; McHugh v. State (1984), Ind., 471 N.E.2d 293, 294. The judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and to determine the credibility of witnesses. McHugh, supra. Thus, we will not set aside the post-conviction court's ruling unless the evidence is without conflict and leads unerringly to a result not reached by the trial court. Id.; Johnson, supra.
St. John first contends that the sentence he received pursuant to his October 1983 plea agreement was erroneous. He claims that (1) since he received an erroneous concurrent sentence instead of a consecutive sentence, the court has a duty, upon request, to correct his sentence and (2) since the court must impose a more severe sentence than it originally imposed pursuant to the plea agreement, the court must allow him to withdraw his guilty plea.
On October 31, 1983, St. John pled guilty to the 1978 burglary and the court sentenced him to a two year term of imprisonment to be served concurrently with his eight year sentence imposed for his 1980 burglary conviction. St. John argues that the court was required by statute to impose consecutive, rather than concurrent sentences. Specifically, St. John argues that his concurrent sentences violate I.C. Sec. 35-50-1-2(b). This statute requires consecutive sentences for crimes that are committed in a certain sequence. At the time of this case, 1 the relevant provisions of I.C. Sec. 35-50-1-2(b) provided:
(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.
Our supreme court has interpreted this statute as requiring mandatory consecutive sentences where a subsequent crime occurs after sentencing for a prior crime. Groff v. State (1986), Ind., 488 N.E.2d 711, 712. Further, the statute does not require consecutive sentences where the subsequent crime is committed during the time period between arrest and sentencing for the prior crime. Id. Hutchinson v. State (1985), Ind., 477 N.E.2d 850; Haggard v. State (1983), Ind., 445 N.E.2d 969.
St. John contends that this statute applies to his situation because he committed the 1980 burglary after being arrested and convicted for the 1978 offense and before he was discharged from probation for the 1978 offense. Thus, St. John argues that the court was required to impose consecutive terms for the 1978 and 1980 offenses, despite the fact that he was sentenced for the 1978 crime after he was sentenced for the 1980 crime.
The State argues that the concurrent sentence imposed by the court was not erroneous and not in violation of I.C. Sec. 35-50-1-2(b). It contends that the effect of setting aside St. John's 1978 conviction rendered the prior proceedings null and void. Thus, when St. John committed the 1980 burglary he was not on a valid term of probation and the statute does not apply.
The State cites Brown v. State (1983), Ind.App., 458 N.E.2d 245 to support the proposition that setting aside a prior conviction renders that conviction void. Although Brown does not specifically so hold, it does state "that the effect of an appellate court's reversal of a judgment is to vacate and nullify the trial court's judgment, restoring the parties to the position they held before judgment." Id. at 250. (citing Doughty v. State Dept. of Public Welfare (1954), 233 Ind. 475, 121 N.E.2d 645 and Hunter v. Hunter (1973), 156 Ind.App. 187, 295 N.E.2d 834). In Brown, defendant Brown, while on probation, committed the crime of involuntary...
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