Thurman v. State

• Decision Date: 26 December 1974
• Docket Number: No. 2--674A139,2--674A139
• Parties: Rian Lee THURMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 795

320 N.E.2d 795

162 Ind.App. 576

Rian Lee THURMAN, Appellant, v. STATE of Indiana, Appellee.

No. 2--674A139.

Court of Appeals of Indiana, Second District.

Dec. 26, 1974.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

This appeal is taken from denial of a 'Petition Under the Provisions of P.C. (Post-Conviction Rule) 1, § 1(a)(6) For Election of Treatment (as a drug abuser) Subsequent to Prosecution Pursuant to Burns' 9--3918'.

Appellant Thurman had been convicted upon two counts of drug possession. He was sentenced December 4, 1972 and commenced serving his concurrent sentences immediately. Direct appeal from his convictions was taken. We affirmed the judgment in an opinion entered in Cause No. 2 473 A 100 on November 27, 1974.

Pending determination of his direct appeal and more than six months subsequent to commencement of his sentence, Thurman on September 26, 1973, filed a Petition for Election to be Treated as a Drug Abuser. This initial petition was amended October 18, 1973 so as to attempt to utilize Indiana Rules of Procedure, Post-Conviction Rule 1, § 1(a)(6) as a vehicle for obtaining relief from his executed sentence in the form of drug abuse treatment under then existing Ind.Ann.Stat. § 16--13--7.5--18 (Burns Code Ed. 1973), formerly Burns Ind.Ann.Stat. § 9--3918. The section was repealed by Acts 1974, P.L. 59 but was reenacted in identical form as § 16--13--6.1--18. The pertinent provisions of this section read as follows:

'If a court has reason to believe that an individual convicted of a crime is a drug abuser or the individual states that he is a drug abuser and the court finds that he is eligible to make the election provided for under § 16 (16--13--7.5--16), the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department. . . .

If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by the department to determine whether he is a drug abuser and is likely to be rehabilitated through treatment. Within a reasonable time after receiving an order to conduct an examination, the department shall report to the court the results of the examination and recommend whether the individual should be placed on probation and supervision for treatment. If the court, acting on the report and other information coming to its attention, determines that the individual is not a drug abuser, or is a drug abuser not likely to be rehabilitated through treatment, the court shall proceed to pronounce sentence as in other cases. If the court determines that the individual is a drug abuser and is likely to be rehabilitated through treatment, the court may place him on probation and under the supervision of the department for treatment and of the proper probation authorities for probation supervision and may require such progress reports on the individual from the probation officer and the department as the court finds necessary. No individual may be placed under supervision unless the department accepts him for treatment.'

Thurman appeals the denial of his amended petition, alleging as error the court's failure to order the Department of Mental Health examination.

The portion of the Post-Conviction Rule, pursuant to which Thurman petitioned the trial court, P.C. 1, § 1(a)(6), provides that relief may be granted if the 'conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy.' It is clear from the recorded chronology of events, from Thurman's argument upon this appeal, and from his P.C. petition itself, that he does not assert that the conviction or sentence is erroneous; nor does he assert that any error was committed by the trial court prior to imposition of sentence which would require that sentence to be set aside. Rather, he seeks a belated exercise of the trial court's function with respect to ordering an examination in conjunction with the discretionary sentencing alternative provided by § 16--13--6.1--18. The validity of his appellate position is thus dependent not upon whether the sentence imposed was itself erroneous, or whether fatal error infected the sentence, but rather upon whether he may compel a § 16--13--6.1--18 examination while serving an executed sentence or in the alternative obtain suspension of the sentence after six months from its imposition.

The section of the Act with which we are here concerned deals with rehabilitative treatment after conviction and is wholly couched in terms of such treatment as a rehabilitative process taking place during probation. One may not be simultaneously on probation and serving an executed sentence. Before one may be placed on probation, his sentence must be suspended. See, State ex rel. Gash v. Morgan County Superior Court (1972), Ind., 283 N.E.2d 349. We therefore conclude that the treatment contemplated by § 16--13--6.1--18 may take place only if execution of a sentence otherwise free from error, be suspended and the applicant for treatment be placed on probation. Compare, People v. Victor (1965), 62 Cal.2d 280, 42 Cal.Rptr. 199, 398 P.2d 391.

The statutory provision for examination by the Department of Mental Health, as a necessary prelude to a court order of treatment, is quite obviously intended to be a pre-entencing examination. We do not, however, necessarily read into that provision an absolute prohibition against a post-sentence examination so long as the court retains authority to suspend or set aside the unexecuted portion of the sentence and to order treatment in the event that the examination report should recommend such. As heretofore noted, the sentence here is not asserted to be infected with error. No basis for setting it aside was therefore presented to the trial court. The relief sought by Thurman may thus obtain only if that sentence may be suspended.

As our Supreme Court noted in State ex rel. Gash v. Morgan County Superior Court, supra, 283 N.E.2d at 350:

'In Indiana, the suspension of sentences . . . is governed exclusively by statute.'

The governing statute with which we are concerned is IC 35--7--1--1, Ind.Ann.Stat. § 9--2209 (Burns 1974 Supp.). It permits suspension of a sentence which has been executed in part, only if such suspension is ordered within six months after defendant has commenced serving it. See, State ex rel. Steers v. Lake Criminal Court (1953), 232 Ind. 443, 112 N.E.2d 445 (construing the statutory predecessor of the six month limitation).

In view of the expiration here of the six month period limiting the authority of a trial court to suspend a sentence, an order by the trial court requiring examination of Thurman by the Department of Mental Health would have been a useless gesture. Regardless of the results of such examination and the findings and recommendation of the department, the court would have been powerless to exercise the discretion afforded it under § 16--13--6.1--18 and to suspend the sentence and place Thurman on probation under the care of the Mental Health Department for treatment.

Thurman concedes that he is not entitled to the statutory drug abuse treatment as a matter of right, for he acknowledges that the Department of Mental Health is not obligated to accept him for treatment merely because he may demonstrate eligibility for such treatment. Neither may it be argued that the trial court is obligated to order such treatment even in the event that the report of the department following examination recommends such treatment. Thurman, however, citing McNary v. State (1973), Ind.App., 297 N.E.2d 853, argues that the statute compels a trial court to 'order an examination by the department to determine whether he is a drug abuser and is likely to be rehabilitated' and that the failure of the trial court to do so here was error. In the McNary case, decided by the Third District of this Court, a petition for election for treatment as a drug abuser was, as here, filed after imposition of sentence, and the Third District mandated the trial court to order a § 16--13--6.1--18 examination. A distinction exists, however, between the facts in McNary, supra, and those which are before us. In McNary, the petition for election for drug abuse treatment was filed the day immediately following imposition of sentence and well within the six month period permitted by § 35--7--1--1, supra. This distinction renders it unnecessary that we adopt or reject the McNary holding with respect to a defendant obtaining relief after imposition of sentence and before such sentence is vacated or suspended. Thus, in McNary, even though the decision of the Third District did not address the question, the trial court there had the authority to utilize the results of the department examination and within the six month limitation suspend further execution of its sentence in order to afford the treatment contemplated under § 16--13--6.1--18.

Our affirmance of the denial of Thurman's petition is limited by the issues as argued. It concerns only the application of § 16--13--6.1--18 more than six months after imposition of sentence and where no error has been asserted which would require the setting aside of the sentence. We do not speculate concerning possible application of other provisions of the Act to persons incarcerated nor do we hold that treatment for drug abuse is inconsistent with or precluded by such incarceration.

The judgment is affirmed.

BUCHANAN, J., concurs.

WHITE, J., dissents with opinion.

WHITE, Judge (dissenting).

Although appellant's brief is written as if this were an appeal from the criminal judgment sentencing...