Tedlock v. State
| Decision Date | 25 September 1995 |
| Docket Number | No. 89A01-9506-CR-182,89A01-9506-CR-182 |
| Citation | 656 N.E.2d 273 |
| Parties | Blue Sky L. Rep. P 74,078 Richard E. TEDLOCK, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below. |
| Court | Indiana Appellate Court |
Richard E. Tedlock appeals the sentence imposed upon his four convictions, entered pursuant to a plea agreement, of Security Fraud, a class C felony. The sole issue raised on appeal may be restated as:
whether the trial court's imposition of consecutive sentences producing an aggregate sentence of sixteen years for four class C felony convictions violates Ind.Code 35-50-1-2 which restricts the trial court's authority to impose consecutive sentences for convictions "arising out of an episode of criminal conduct."
We affirm.
The facts in the light most favorable to the trial court's judgment reveal that Tedlock, who was not registered as a broker-agent in Indiana, sold investment securities/promissory notes styled "Declaration of Trust" to many different victims over a two-year period, having fraudulently represented the investments to be FDIC and FSLIC insured (or otherwise guaranteed) when they were not guaranteed. Apparently Tedlock invested the money he obtained from the illegal sales of securities in a real estate project which failed.
On June 2, 1989, Tedlock, operating out of his office, sold a "Declaration of Trust" security to Noah Berry for $30,000.00. Tedlock sold Mr. Berry another "Declaration of Trust" security for $20,000.00. Mr. Berry never received any of his money back. Mr Berry was over sixty-five years old. The crime against Mr. Berry was charged as Count XI of the information.
On July 24, 1989, Tedlock, operating out of his office, sold one of his "Declaration of Trust" securities to Alfred and Martha Vandevender, each of whom were over sixty-five years old, for $15,000.00. Tedlock had sold a total of four such securities to the Vandevenders representing a total investment of $65,000.00. The Vandevenders never received any of their money back. The crime against the Vandevenders was charged as Count II of the information.
On July 3, 1991, Tedlock sold a "Declaration of Trust" security to Mary Schmid at her home for $15,000.00. Schmid never received any of her money back. The crime against Schmid was charged as Count VIII of the information.
In January of 1990, Tedlock sold a "Declaration of Trust" to Janeva Jones at her home for $16,000.00. The crime against Jones was charged as Count V of the information.
Tedlock pleaded guilty to the above described counts of Securities Fraud in exchange for the dismissal of several other pending charges. The trial court sentenced Tedlock to concurrent eight year terms on Counts II and VIII. The trial court also sentenced Tedlock to concurrent eight year terms (with two years suspended) on Counts V and XI. The trial court ordered Counts V and XI to run consecutively to Counts II and VIII for an aggregate sentence of sixteen years with two years suspended.
In 1994, our general assembly amended I.C. 35-50-1-2 to impose a previously nonexistent limitation upon a trial court's discretion to impose consecutive sentences. Salone v. State (1995), Ind.App., 652 N.E.2d 552, 562. The relevant portion of the amended statute, which Tedlock argues has been violated, reads:
The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for murder and felony convictions for which a person receives an enhanced penalty because the felony resulted in serious bodily injury if the defendant knowingly or intentionally caused the serious bodily injury, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 [habitual offender statute] and IC 35-50-2-10 [], to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
I.C. 35-50-1-2 (Emphasis added). Tedlock argues that all four of his class C felony convictions arise out of one "episode" and therefore the maximum sentence that may be imposed under the above statute is the presumptive sentence for a class B felony, ten years. We disagree.
Prior to Tedlock's sentencing, there had been no definition of "episode" for the purposes of the above statute. However, in 1995 our general assembly again amended I.C. 35-50-1-2 in pertinent part as follows:
(b) As used in this section, "episode of criminal conduct" means offenses or a connected series of offenses that are closely related in time, place, and circumstance.
P.L. 304-1995 (Effective July 1, 1995).
The State initially argues that the 1994 amendment was not in effect at the time Tedlock committed the crimes and therefore, he is not entitled to the retroactive application of the amendment, citing State v. Alcorn (1994), Ind., 638 N.E.2d 1242, 1245 (). The State has correctly stated the general rule. See Rowold v. State (1994), Ind.App., 629 N.E.2d 1285, 1288. However, under the doctrine of amelioration, when the penalty for a crime is decreased by an ameliorative amendment enacted after the commission of the crime but before the defendant's sentencing, the defendant may take advantage of the ameliorative amendment. Id.
The 1994 amendment to I.C. 35-50-1-2 which imposed a previously nonexistent limitation upon the trial court's authority to impose consecutive sentences is ameliorative in nature. Therefore, it is appropriately applied in the present case.
The central issue in the present case is discerning the legislature's intention regarding the meaning of the term "episode" as used in the 1994 amendment. Determining legislative intent is foremost in construing any statute and, wherever possible, this court will give deference to that intent. Alvers v. State (1986), Ind.App., 489 N.E.2d 83, 88,...
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