State v. Williams
| Decision Date | 18 January 1982 |
| Docket Number | No. 880S345,880S345 |
| Parties | STATE of Indiana, Appellant, v. James Junior WILLIAMS, Appellee. |
| Court | Indiana Supreme Court |
Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Michael Gene Worden, Deputy Attys. Gen., Indianapolis, for appellant.
Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellee.
On February 7, 1980, appellee was tried on a two-count indictment. Count One was for Forgery and Count Two was a charge of habitual offender. Appellee was found guilty on both counts.
On March 3, the trial court sentenced appellee to eight (8) years' imprisonment on the forgery charge and suspended the thirty (30) year sentence called for under the habitual offender statute. In so doing, the trial judge stated that in his opinion the term of thirty (30) years' imprisonment was an unconstitutional cruel and unusual punishment. The trial judge also stated he did not see the offense of habitual offender listed in I.C. 35-50-2-2 (Burns' 1979) as one of those offenses for which the sentence could not be suspended, so he believed the penalty was suspendible. The trial court erred in both respects. In this opinion we hold the habitual offender statute is not unconstitutional nor is the enhanced penalty provided in that statute suspendible.
Following Motions to Correct Error, both by the State and the appellee, the court on May 22 entered a written opinion relative to its rulings on the parties' motions. At that time the court stated that it erred by not instructing the jury as requested by both defendant and the jury itself in regard to the penalty assessed following an habitual offender conviction. Such error, the court said, necessitated the habitual offender conviction be set aside. Shortly thereafter, the court set a new trial date of August 27, 1980, for defendant to be retried on the habitual offender charge. That case was continued by the trial court while the defendant perfected his appeal to the Court of Appeals on the forgery conviction. The Court of Appeals affirmed the forgery conviction in an unpublished memorandum decision handed down on March 24, 1981.
The first issue presented is whether this Court may assume jurisdiction in this case. We hold this Court does have jurisdiction under Appellate Rule 4(A) (8), which gives the Supreme Court exclusive jurisdiction of all cases in which a lower court has declared a statute unconstitutional, although in the usual instance the State may appeal upon a reserved question only where a defendant has been acquitted of a crime charged. We held in State v. Palmer, (1979) Ind., 386 N.E.2d 946, that this Court would entertain an appeal by the State in a criminal case in which the trial court had declared a sentencing statute unconstitutional, and refused to follow it after the jury had returned a guilty verdict on the charge. In considering whether or not we would assume jurisdiction, Justice Pivarnik stated:
In the case at bar, we assume jurisdiction under Appellate Rule 4(A)(8), as this is a case in which a lower court has declared a statute unconstitutional. On this authority alone we thus assume jurisdiction to decide all the issues raised by this appeal, not just the constitutionality issue.
Appellee contends that (1) we should not hear this appeal because the question is moot, and (2) we are engaging in speculation to issue an advisory opinion. The issue certainly is not moot. The appellee has had his conviction on the forgery count affirmed. The appellee now stands convicted of forgery and has been found to be an habitual offender. Thus, it follows that our opinion in the case is more than advisory. There is an actual controversy here regarding the rights of a trial court to suspend an habitual offender enhanced sentence and to vacate an habitual offender conviction for the reason stated by the trial court. We view a decision on these other issues raised in this appeal as necessary to render a complete and final disposition of this cause.
We next consider the issue of whether the trial court had the authority to suspend appellee's sentence on the habitual offender charge. In Wise v. State, (1980) Ind., 400 N.E.2d 114, 117, this Court stated: (Emphasis added.) A sentence enhanced under I.C. 35-50-2-8 is not for a conviction for an independent felony. The status of habitual offender is not a felony in itself. The statute provides an additional penalty for the last felony committed and is an enhanced sentence for that felony and no other.
I.C. 35-50-2-2 (Burns' 1979) reads in part as follows:
The thirty (30) year enhancement brought about by the habitual offender statute cannot be invoked unless there is, in fact, a prior unrelated felony conviction. The trial court apparently erred in its belief that the finding that appellee was an habitual offender was a finding of a separate felony. This is not the case. The appellee was convicted of a felony and was a person with a prior unrelated felony conviction. Under the statute above quoted, the trial court had no authority to suspend the sentence. We hold when a criminal defendant receives an enhanced sentence under the habitual offender statute, such sentence may not be suspended.
The State claims the trial court erred in granting appellee's Motion to Correct Errors and setting aside the judgment against him in the habitual offender count. The trial court stated his reason for doing so was that it erred in not instructing the jury as to the enhanced penalty assessed against a defendant convicted under the habitual offender statute.
It is appellee's contention that this Court is precluded from assuming jurisdiction to decide this issue by I.C. 35-1-47-2 and State v. Sierp, (1973) 260 Ind. 57, 292 N.E.2d 245. He also contends neither Appellate Rule 4(A)(8) nor the exception developed in State v. Palmer, (1979) Ind., 386 N.E.2d 946, can be applied to bring this issue before this Court at this time. The Palmer exception is stated in this language: "We have the same jurisdiction to do, in the case of an appeal, that which we may do in a case raised by an original...
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