Taylor v. State, 48A04-1405-CR-220

Citation48A04-1405-CR-220
Case DateOctober 22, 2014
CourtCourt of Appeals of Indiana

DAVID G. TAYLOR, Appellant-Defendant,
v.

STATE OF INDIANA, Appellee-Plaintiff.

No. 48A04-1405-CR-220

Court of Appeals of Indiana

October 22, 2014


NOT FOR PUBLICATION

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-8404-CF-34

APPELLANT PRO SE: DAVID G. TAYLOR Carlisle, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana, LYUBOV GORE Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

BARNES, Judge.

Case Summary

David Taylor appeals the denial of his motion to correct erroneous sentence. We reverse and remand.

Issue

The restated issue before us is whether the consecutive sentencing portion of Taylor's sentence is facially erroneous and illegal in light of the law that existed at the time of sentencing.

Facts

On April 10, 1984, Taylor committed an armed robbery in Madison County at about 1:22 a.m. See Taylor v. State, 506 N.E.2d 468, 469 (Ind. 1987). At about 4:30 a.m. on the same date, Taylor committed another armed robbery in Johnson County. See id.; Taylor v. State, 496 N.E.2d 561, 563 (Ind. 1986). After the Johnson County robbery, Taylor and his accomplice abducted two women; Taylor sexually assaulted one of the women while his accomplice assaulted the other. See Taylor, 496 N.E.2d at 563-64. In the Johnson County case, Taylor was convicted of armed robbery, rape, criminal deviate conduct, and two counts of criminal confinement. See id.

On July 26, 1984, Taylor was found guilty by a jury of one count of Class B felony robbery and one count of Class B felony conspiracy to commit robbery in the Madison County case. On August 21, 1984, the trial court imposed sentences of twenty years for each conviction and ordered "that the sentences shall run consecutive to each other and to any other sentences that the defendant may have received or may receive from any other county." App. p. 1.[1] Taylor appealed his convictions, arguing only that the trial court had erred in allowing the State to introduce evidence of the Johnson County robbery. Our supreme court affirmed.

Taylor subsequently filed a petition for post-conviction relief. Among the arguments raised, Taylor claimed appellate counsel in his direct appeal had been ineffective for not challenging the trial court's order that his sentences be served consecutive to "any other sentences that the defendant may have received or may receive from any other county." Id. This court rejected that argument, finding appellate counsel's performance was not deficient because caselaw at the time of the direct appeal did not yet exist that would have supported the consecutive sentencing argument. See Taylor v. State, No. 48A02-0008-PC-527, slip op. pp. 9-11 (Ind.Ct.App. Apr. 6, 2001) (citing Kendrick v. State, 529 N.E.2d 1311 (Ind. 1988) and McCurry v. State, 718 N.E.2d 1201 (Ind.Ct.App. 1999), trans. denied). Our supreme court denied transfer.

On September 20, 2012, Taylor filed a motion to correct erroneous sentence, again attacking the consecutive sentencing language of the sentencing order. The trial court denied the motion without conducting a hearing. Taylor now appeals.

Analysis

Indiana Code Section 35-38-1-15 provides:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence

Motions to correct erroneous sentence are appropriate only to address sentencing errors that are clear from the face of the sentencing judgment in light of applicable statutory authority. Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004). "Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct sentence." Id. Additionally, a motion to correct sentence based on clear facial error is not the equivalent of a post-conviction petition and does not require the seeking of prior authorization necessary for a successive post-conviction relief petition in the event a defendant already has pursued such relief. Id. at 788.

A trial court must sentence convicted criminals within statutorily prescribed limits, and any sentence that is contrary to, or violative of, the penalty mandated by the applicable statute is an illegal sentence. Ben-Yisrayl v. State, 908 N.E.2d 1223, 1228 (Ind.Ct.App. 2009), trans. denied. A sentence that exceeds statutory authority constitutes fundamental error and is subject to correction at any time. Id. We are duty bound to correct an illegal sentence and cannot ignore such an illegality. Hull v. State, 799 N.E.2d 1178, 1181 (Ind.Ct.App. 2003); see also Puckett v. State, 843 N.E.2d 959, 963 (Ind.Ct.App. 2006).

A trial court generally cannot order consecutive sentences in the absence of express statutory authority to do so. Lee v. State, 816 N.E.2d 35, 37 (Ind. 2004). At the time Taylor committed these offenses, the discretionary consecutive sentencing statute, Indiana Code Section 35-50-1-2(a), stated, "Except as provided in subsection (b) of this section, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively." This language only allowed trial courts to impose consecutive sentences in cases where a trial court was meting out two or more terms of imprisonment contemporaneously. Lee, 816 N.E.2d at 37 (citing Kendrick v. State, 529 N.E.2d 1311, 1312 (Ind. 1988). In other words, as interpreted by Kendrick and like cases, it was well-settled that a trial court generally could not order a sentence to be served consecutive to another sentence entered by another court. Davidson v. State, 763 N.E.2d 441, 445 (Ind. 2002), cert. denied; see also Seay v. State, 550 N.E.2d 1284, 1289 (Ind. 1990); Frazier v. State, 512 N.E.2d 215, 217 (Ind.Ct.App. 1987) (holding trial court lacked authority under Indiana Code Section 35-50-1-2(a) to order sentence to be served consecutive to sentence yet to be imposed in a different case in which defendant had pled guilty but not yet been sentenced), trans. denied.

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