White v. State

• Decision Date: 20 August 2003
• Docket Number: No. 10A01-0209-PC-348.,10A01-0209-PC-348.
• Citation: 793 N.E.2d 1127
• Parties: James Ernest WHITE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

793 N.E.2d 1127

James Ernest WHITE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 10A01-0209-PC-348.

Court of Appeals of Indiana.

August 20, 2003.

James E. White, Pendleton, pro se.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

James Ernest White appeals the dismissal of his petition for post-conviction relief. The dispositive issue presented is whether White's petition for post-conviction relief is a successive petition for post-conviction relief such that he was required to receive authorization from this court pursuant to Indiana Post-Conviction Rule 1(12) before the post-conviction court had jurisdiction over his petition.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

White was found guilty of murder, a felony,¹ following a jury trial and was sentenced to a presumptive fifty-year term. In White's direct appeal, we affirmed his conviction and sentence in an unpublished memorandum decision. See White v. State, 668 N.E.2d 726, No. 10A01-9504-CR-129 (Ind.Ct.App. July 22, 1996), trans. denied.

On April 10, 1997, the Clark County Public Defender filed in the Clark Circuit Court a motion to correct erroneous sentence pursuant to Ind.Code § 35-38-1-15, arguing White's sentence was erroneous because the sentencing statute applicable to White provided for a presumptive forty-year sentence instead of the fifty-year sentence White received.² After a hearing, the trial court corrected White's sentence to reflect a presumptive forty-year sentence for murder.

On August 4, 1997, White filed a pro se petition for post-conviction relief, which he amended on January 10, 2002. The State filed a motion to dismiss arguing that White's prior motion to correct erroneous sentence had been a petition for post-conviction relief and, therefore, White's current petition for post-conviction relief was a successive petition for post-conviction relief. The State argued that the post-conviction court lacked jurisdiction to rule on the current petition because White had failed to seek leave of this court to file a successive petition for post-conviction relief under P-C.R. 1(12). The post-conviction court granted the State's motion to dismiss on June 28, 2002. White's motion to correct error was denied.

DISCUSSION AND DECISION

White argues the court erred in dismissing his petition for post-conviction relief as a successive petition. White contends that his previous motion to correct erroneous sentence should not be construed as a petition for post-conviction relief because it was filed pursuant to Ind.Code § 35-38-1-15 and did not comply with the requirements for petitions for post-conviction relief. Therefore, White argues, his current petition for post-conviction relief should not have been dismissed because it is not a successive petition requiring permission from this court.

The Indiana Rules of Appellate Procedure create procedures by which persons who have been convicted of crimes in Indiana may appeal those convictions. Bellamy v. State, 765 N.E.2d 520, 521 (Ind. 2002). If unsuccessful on appeal, there are procedures in place that allow the convicted person an opportunity to file a petition seeking post-conviction relief. Id.; see P-C.R. 1. If still unsuccessful, one of the avenues potentially open to the convicted person is to again seek post-conviction relief through a successive petition. Bellamy, 765 N.E.2d at 521; see P-C.R. 1(12). However, pursuant to P-C.R. 1(12), convicted persons filing successive petitions for post-conviction relief are required to obtain leave from either the supreme court or this court before filing a successive petition in the post-conviction court. Waters v. State, 703 N.E.2d 688, 689 (Ind.Ct. App.1998),trans. denied. If a convicted person files a successive petition in the post-conviction court without obtaining such leave, the post-conviction court is required to dismiss the petition due to lack of jurisdiction. Id.

The issue in this case is whether White's motion to correct erroneous sentence should be considered a petition for post-conviction relief such that the subsequent filing of his current petition for post-conviction relief required authorization from this court. White argues that his motion to correct erroneous sentence was not a petition for post-conviction relief because it was filed pursuant to Ind.Code § 35-38-1-15 and was not verified as required by the post-conviction rules.

P-C.R. 1(1)(a) provides in pertinent part:

Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

* * *

(3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous;

* * *

may institute at any time a proceeding under this Rule to secure relief.

P-C.R. 1(3) requires in part: "The petition shall be made under oath and the petitioner shall verify the correctness of the petition, the authenticity of all documents and exhibits attached to the petition, and the fact that he has included every ground for relief under Sec. 1 known to the petitioner."

White's motion to correct erroneous sentence was filed pursuant to Ind.Code § 35-38-1-15. That statute 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.

A petition for post-conviction relief, not a motion to correct erroneous sentence, is the preferred procedure for presenting a sentencing error. Jones v. State, 544 N.E.2d 492, 496 (Ind.1989); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App. 1999), trans. denied. However, a motion to correct erroneous sentence pursuant to Ind.Code § 35-38-1-15 "is appropriate where the sentence is erroneous on its face and that facial error occurs when the sentence violates express statutory authority." Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000).

In Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991), our supreme court discussed whether a motion to correct erroneous sentence was a proper method for challenging a sentence:

The State argues Reffett's appeal from the denial of his motion to correct sentence is the wrong way to attack his sentence. It says Reffett should have filed a petition for post-conviction relief under Indiana Post-Conviction Rule 1 § 1(a)(3).

Indiana Code § 35-38-1-15 (West 1986) permits a defendant to file a motion to correct sentence so long as it is in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence. Reffett's motion met these requirements. Although this Court has repeatedly advised that a petition for post-conviction relief is the "preferred procedure," we have been reluctant to reject appeals from denial of a motion to correct sentence on such technical grounds. In Thompson v. State, we explained that a petition for post-conviction relief was preferred because it "serves the substantial purpose of `finally closing the door to post-conviction remedies.' " 389 N.E.2d at 276 (quoting Owen v. State (1975), 167 Ind.App. 258, 263, 338 N.E.2d 715, 718). By preferring one procedure but permitting both, this Court tries to encourage conservation of judicial time and energy while at the same time affording speedy and efficient justice to those convicted of a crime. See generally id. at 276-77, 338 N.E.2d 715. In Jones v. State, we held that a motion to correct sentence is appropriate where the sentence is erroneous on its face, and that facial error occurs when the sentence violates express statutory authority. 544 N.E.2d at 496.

Under Reffett, motions to correct erroneous sentences and petitions for post-conviction relief appear to be distinct procedural vehicles by which a convicted person may challenge his sentence. Petitions for post-conviction relief are "preferred" because they "close the door" to other post-conviction challenges, but our supreme court continues to allow the filing of a motion to correct erroneous sentence. See id.

Nevertheless, the State argues, based upon State ex rel. Gordon v. Vanderburgh Circuit Court, 616 N.E.2d 8 (Ind.1993) (per curiam), that White's motion to correct erroneous sentence must be considered a petition for post-conviction relief. In State ex rel. Gordon, Gordon filed a motion to correct erroneous sentence in the Vanderburgh Circuit Court pursuant to Ind.Code § 35-38-1-15. The trial court failed to set it for hearing within 30 days and Gordon attempted to have his motion to correct erroneous sentence removed to the supreme court for appointment of a special judge pursuant to Ind. Trial Rule 53.1.³ He argued that the trial court lost jurisdiction to rule on his motion by failing to set it for hearing within 30 days. However, the 30-day time limit in T.R. 53.1 does not apply to petitions for post-conviction relief. T.R. 53.1(B)(4); State ex rel. Gordon, 616 N.E.2d at 9. After setting out the relevant parts of Ind.Code § 35-38-1-15 and P-C.R. 1(1)(a), our supreme court stated:

The Indiana Rules of Procedure for Post-Conviction Remedies "comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence and ... shall be used exclusively in place of them." P-C.R. 1, § 1(b). Therefore, a motion to correct erroneous sentence filed pursuant to I.C. XX-XX-X-XX must be considered a petition for post-conviction relief exempted from application of T.R. 53.1.

State ex rel. Gordon, 616 N.E.2d at 9. But see Thompson v. State, 270 Ind. 677, 389 N.E.2d 274, 276 n. 2 (1979)

(noting that the P-C.R. 1(1)(b)...