Woodson v. State, 2-478

• Decision Date: 29 December 1978
• Docket Number: No. 2-478,2-478
• Citation: 383 N.E.2d 1096,178 Ind.App. 692
• Parties: Samuel WOODSON, Appellant, v. STATE of Indiana, Appellee. A 123.
• Court: Indiana Appellate Court

Page 1096

383 N.E.2d 1096

178 Ind.App. 692

Samuel WOODSON, Appellant, v. STATE of Indiana, Appellee.

No. 2-478 A 123.

Court of Appeals of Indiana, Fourth District.

Dec. 29, 1978.

As Corrected Jan. 5, 1979.

Harriette Bailey Conn, Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

This is an appeal from a denial of Post-Conviction Relief in which Defendant, who was charged with and convicted of Robbery and sentenced to a term of not less than ten (10) years nor more than twenty-five (25) years, sought reduction of his maximum sentence to twenty (20) years and credit for the time he served in a Missouri penal institution while he was an escapee from the Indiana State Prison.

Two issues are presented for our determination:

(1) Whether the trial court erred in not modifying the sentence imposed on the Defendant for Robbery from twenty-five (25) years, the maximum sentence for Robbery under IC 35-13-4-6 ¹ to twenty (20) years, the maximum sentence for Armed Robbery then in effect under Burns' Ind.Anno.Stat. 10-4709. ²

(2) Was Defendant entitled to credit on his Indiana sentence for time served for another crime in another jurisdiction while an escapee?

We find that Defendant's maximum sentence should be modified to twenty (20) years but that he is not entitled to credit on his sentence for time served in Missouri while an escapee from Indiana.

FACTS:

On June 23, 1956, Defendant, Samuel Woodson, was charged by affidavit with Robbery under IC 35-13-4-6, Supra. After trial by jury Defendant was found guilty of robbery and on September 26, 1956, was sentenced to the Indiana State Prison for a term of not less than ten (10) years nor more than twenty-five (25) years. On December 22, 1967, the Defendant escaped from the Indiana State Prison, was incarcerated in a Missouri penal institution for a period of time on another charge until January 17, 1976, when he was returned to the Indiana State Prison.

On August 22, 1977, Defendant filed a Petition for Post-Conviction Relief asserting the following grounds for relief:

"(a) Unconstitutional sentence. 10-20 was the constitutional sentence for robbery in 1956 when the maximum sentence for armed robbery under Burns' 10-4709 was 20 years.

"(b) The Defendant is entitled to receive credit for the three (3) months and one (1) day which he was incarcerated prior to his conviction and sentence in this cause. (From June 22, 1956, to September 23, 1956).

"(c) That the Defendant is entitled to receive credit on his sentence for the period of time from February 13, 1972, until January 17, 1976, in which he was incarcerated in a Missouri penal institution with an Indiana detainer warrant having been filed against him."

On January 6, 1978, the trial court granted credit for time spent in confinement prior to trial but denied the remainder of his petition.

ISSUE ONE:

In 1956, Defendant was found guilty of Robbery and sentenced under IC 35-13-4-6, Supra, to not less than ten (10) years nor more than twenty-five (25) years. Defendant now seeks immediate modification of his maximum sentence from twenty-five (25) to twenty (20) years.

When the offense in the case at bar occurred the following statutes were in effect:

Robbery: "Whoever takes from the person of another any article of value by violence or putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years. * * * " IC 35-13-4-6, Supra.

Commission of or attempt to commit crime while armed with a deadly weapon:

"Any person who . . . commits or attempts to commit . . . the crime of . . . robbery, . . . while armed with a pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon . . . shall be guilty of a separate felony in addition to the crimes above named and upon conviction shall be imprisoned for a determinate period of not less than ten (10) years nor more than twenty (20) years * * * " Burns' 10-4709, Supra.

Hence, in 1956, the punishment established for Robbery was five (5) years greater than the maximum sentence permitted for the commission of Armed Robbery.

The law is well established in Indiana that the crime of Robbery is a lesser included offense of the crime of Armed Robbery. Dowdell v. State (1975), Ind.App., 336 N.E.2d 699; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538; Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815.

In Dembowski, supra, our Supreme Court considered the constitutionality of the variance in sentencing between the aforementioned Robbery and Armed Robbery statutes and held that the provision in IC 35-13-4-6, Supra, providing for a ten (10) to twenty-five (25) year indeterminate sentence was unconstitutional:

"(T)he legislature may not, consistent with the commands of the State and Federal Constitutions, provide a punishment for a lesser included offense which is greater in years on the face of the statute than the greater offense." 240 N.E.2d at p. 817.

In determining the time at which one should apply for modification of an unconstitutional maximum in an indeterminate sentence the court concluded that:

"Petitioner is presently incarcerated in the State penitentiary. He has not served, under the sentence entered on the judgment, a period greater than the maximum number of years of the greater offense (Armed Robbery). His incarceration is not, at this point, therefore prejudicial to his Constitutional rights, and accordingly, we hold that petitioner may assert no claim of an unconstitutional restraint of his person until such time as his punishment extends beyond the Constitutionally permissible limits." Dembowski of 240 N.E.2d at p. 818.

However, the court reconsidered this conclusion in Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498:

"Fifth: We have now reevaluated the closing statement of this court in Dembowski and believe (that) the appellant is entitled to immediate modification of his sentence."

The principle of Dembowski has been retroactively applied to sentences imposed at least as far back as 1960 ³ and the Indiana Courts have modified sentences for Robbery convictions imposed under IC 35-13-4-6, Supra, at all times prior to the Indiana Legislature's 1969 amendment of Burns' 10-4709 ⁴, Supra. See: Dowdell v. State (1975), Ind.App., 336 N.E.2d 699; Evans v. State (1974), 162 Ind.App. 588, 320 N.E.2d 781; Neeley v. State (1973), 156 Ind.App. 449, 297 N.E.2d 475; Dotson v. State (1972), 258 Ind. 581, 282 N.E.2d 812; Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538. See also Lee v. State (1972), 259 Ind. 301, 286 N.E.2d 840 and Heathe v. State (1971), 257 Ind. 345, 274 N.E.2d 697 and McDougall v. State (1970), 254 Ind. 62, 257 N.E.2d 674 where the rule of Dembowski has been applied notwithstanding the fact that the greater offense was not charged.

The principle of Dembowski, supra, and Hobbs, supra, is applicable to the case at bar. Defendant is within the same class of people who were convicted and sentenced under the unconstitutional provision of IC 35-13-4-6, Supra, prior to the 1969 Legislative amendment, whose sentences the Indiana courts have modified in accordance with Dembowski, supra. At the time Defendant was charged, convicted and sentenced for Robbery the statutory penalty for the greater offense of Armed Robbery was a term of not less than ten (10) nor more than twenty (20) years. Therefore, the Defendant has a constitutional right to an immediate reduction of his maximum sentence from twenty-five (25) years to twenty (20) years.

ISSUE TWO:

Defendant next claims in his Brief that he is entitled to receive credit on his Indiana robbery sentence for the period of time he was imprisoned in a Missouri penal institution while he was an escapee from the Indiana State Prison. He acknowledges in his Brief that this issue was inadvertently omitted from his Motion to Correct Errors and asserts that the issue should be addressed on appeal because it is fundamental error. We prefer to decide this issue on the merits for the reason that the necessary facts for our decision appear on the face of the record and the alleged error purportedly affects the length of Defendant's incarceration. ⁵

However, after examining the appropriate authorities, we find that the trial court did not err in refusing to give the Defendant credit on his sentence for the time he was an escapee and incarcerated in another jurisdiction for another crime.

In Hendrixson v. Lash (1972), 258 Ind. 550, 282 N.E.2d 792, cert. den. 410 U.S. 967, 93 S.Ct. 1450, 35 L.Ed.2d 702, our Supreme Court considered a claim by the defendant that he should receive credit on his sentence for the time during which he was an escapee from prison, and further, that the Department of Correction had no authority to hold a prisoner in prison beyond the maximum expiration date of his sentence. The Court answered this contention as follows at p. 552 of 258 Ind., at p. 793 of 282 N.E.2d.

"The proposition that an unauthorized absence from confinement will extend the expiration date of a prisoner's sentence, is well settled. Such an issue was presented to this court over 100 years ago in Ex Parte Clifford (1867), 29 Ind. 106. That case involved a writ of habeas corpus in which the petitioner, who had escaped from prison and had been recaptured after the termination of his original sentence, complained that his confinement was illegal because it exceeded his original expiration date. It was determined that the appellant could not 'avail himself of the fact that while he was illegally at large the date at which his imprisonment was to have terminated had passed.' Id. at 108.

'(S)ince the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason why he should have any manner of advantage from it.' Id.

Other courts considering the question have...