Taylor v. State
| Decision Date | 22 October 2014 |
| Docket Number | No. 48A04-1405-CR-220,48A04-1405-CR-220 |
| Parties | DAVID G. TAYLOR, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE:
DAVID G. TAYLOR
Carlisle, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
David Taylor appeals the denial of his motion to correct erroneous sentence. We reverse and remand.
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.
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 othercounty." 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) (). 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.
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 becorrected 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) (), trans. denied.
The sole exception to this rule was found in subsection (b) of Indiana Code Section 35-50-1-2 as it existed in 1984, which mandated the imposition of consecutive sentences "[i]f 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," regardless of whether the trial court was contemporaneously imposing sentence for both crimes. However, our supreme court required a trial court imposing consecutive sentences to expressly indicate in the sentencing order whether the mandatory provision, subsection (b), or the discretionary provision, subsection (a), applied in order for a consecutive sentencing order to be appropriate. Bartruff v. State, 553 N.E.2d 485, 487-88 (Ind. 1990). In 1994, Indiana Code Section 35-50-1-2 was amended toeffectively overrule the Kendrick line of cases by including language allowing the discretionary imposition of consecutive sentences "even if the sentences are not imposed at the same time." I.C. § 35-50-1-2(c).
Taylor argues that Indiana Code Section 35-50-1-2, as it existed at the time of his conviction and sentencing and as interpreted by Kendrick and similar cases, made the trial court's sentencing order facially erroneous. The State makes several arguments in response, most of which do not address the merits of Taylor's claim. First, the State argues that Taylor has waived his claim regarding the illegality of the sentence by not challenging it in his direct appeal or in his post-conviction petition. We directly rejected an argument such as this in Watkins v. State, 588 N.E.2d 1342 (Ind. Ct. App. 1992). In that case, a defendant failed on direct appeal to challenge his 1983 sentence as illegally imposing consecutive sentences in violation of Kendrick, Upon later filing of a motion to correct erroneous sentence, we held the defendant was entitled to correction of the sentence because it was facially erroneous in violation of express statutory authority, despite his failure to challenge it on direct appeal. Watkins, 588 N.E.2d at 1344-45. We noted our duty to correct facially erroneous sentences and also stated, "[t]he length of time intervening between an original erroneous sentence and the correction thereof does not affect the power of the courts to correct the sentencing error." Id. at 1344. Per Watkins's clear holding, Taylor has not waived his facial challenge to his sentence by failing to challenge it earlier. We also note that the only situation under which our supreme court has found that a defendant may waive objection to an illegal sentence is where a defendant pleads guilty under an agreement that expressly specifies imposition of an illegal sentence;there has been no other situation in which our supreme court has found waiver of a challenge to an illegal sentence. See Crider v. State, 984 N.E.2d 618, 625 (Ind. 2013).
The State makes a second argument that we rejected in Watkins. Specifically, the State notes that the earliest case Taylor cites, Frazier, was not decided until three years after Taylor was sentenced and, therefore, Taylor cannot rely upon it in challenging his sentence. In Watkins, the State made a similar argument, namely, that the defendant could not retroactively rely upon the 1988 Kendrick opinion in challenging his sentence imposed in 1983. We disagreed, holding that Kendrick did not create a "new rule" whose retroactive...
To continue reading
Request your trial