Becker v. StateBecker v. State
- Reporters:
- , ,
- Before:
- Ratliff
OPINION
RATLIFF, Senior JudgeSTATEMENT OF THE CASE
Defendant-Appellant Gary Becker (“Defendant”) appeals from the trial court’s order resentencing him for his convictions after a jury trial of criminal deviate conduct, a Class B felony,
We vacate the sentence and remand.
ISSUES
The parties present the following restated issues for our review:
I. Whether the Court of Appeals has jurisdiction to decide an appeal taken after the trial court allowed Defendant to file a belated praecipe from his resen-tencing.
II. Whether Defendant is precluded by the doctrine of the law of the case from challenging the trial court’s resentencing order or if Defendant waived, the resen-tencing issue by failing to raise it in his first direct appeal.
III. Whether the trial’ court erred by imposing consecutive sentences in excess of its authority underInd.Code § 35-50-l-2(a) .
FACTS AND PROCEDURAL HISTORY
Defendant was tried by jury and convicted of rape, a Class B felony, criminal deviate conduct, a Class B felony, two counts of attempted criminal deviate conduct, Class B felonies, criminal confinement, a Class D felony, escape, a Class C felony, and battery, a Class A misdemean- or. Defendant received enhanced, consecutive sentences totaling ninety-two years. Defendant’s convictions were affirmed on appeal, but the matter was remanded to the trial court for resentencing. See Becker v. State, 695 N.E.2d 968 (Ind.Ct.App.1998).
Additional facts will be provided below.
DISCUSSION AND DECISION I. LACK OF JURISDICTION
The State previously filed with this court the “State’s Verified Motion to Dismiss Appeal or, in the Alternative, to Grant an Emergency Extension of Time to File Brief of Appellee.” The motion was denied by this court on June 17, 1999, and the request for an extension of time was granted. In that motion the State argued as it does now that we should dismiss this appeal for lack of jurisdiction. We disagree.
We agree with the State’s argument that the timely filing of a praecipe is a jurisdictional prerequisite, and failure to conform with the applicable time limits results in forfeiture of the appeal. See Neville v. State, 694 N.E.2d 296, 297 (Ind.Ct.App.1998). Indiana PosWConvietion Rule 2 provides the procedure for obtaining permission to file a belated direct appeal from convictions after trial, but it does not allow belated appeal of other post-judgment petitions. See Greer v. State, 685 N.E.2d 700, 702 (Ind.1997); Howard v. State, 653 N.E.2d 1389 (Ind.1995). P-C.R. 2(1) removes a trial court’s authority to permit belated praecipes to be filed in other than direct appeals of convictions. See Howard, 653 N.E.2d at 1389.
The State argues that we should dismiss this appeal because the trial court lacked the authority to grant Defendant’s request to file a belated praecipe. The State advances the argument that Defendant is appealing from his resentencing which is not from a conviction after trial.
We previously have upheld trial court decisions to grant requests to file belated praecipes to appeal from a resentencing order. See Riffe v. State, 675 N.E.2d 710, 711 n. 1 (Ind.Ct.App.1996), trans. denied; Boykin v. State, 622 N.E.2d 568, 569 (Ind.Ct.App.1993), trans. denied. Therefore, we will not dismiss this appeal for lack of jurisdiction.
II. LAW OF THE CASE & WAIVER
The State argues that the issue Defendant raises is precluded by the doctrine of the law of the case. That doctrine provides that an appellate court’s determination of a legal issue is binding on the trial court on remand and on this court in any subsequent appeal in the same case and involving substantially the same facts. Callis v. State, 684 N.E.2d 233, 237 (Ind.Ct.App.1997), trans. denied. Further, pri- or appellate decisions are conclusive on all questions which have been actually considered and determined in a first appeal. Hewell v. State, 507 N.E.2d 241, 243 (Ind.Ct.App.1987).
The State also argues that Defendant has waived this issue for review. On an appeal from resentencing, the appellate court is confined to reviewing only the errors alleged to have occurred as a result of the resentencing. Boykin v. State, 622 N.E.2d at 569. If an issue was available for litigation in direct appeal but was not in fact raised, then the issue has been waived. McBride v. State, 595 N.E.2d 260, 262 (Ind.Ct.App.1992).
However, as we stated in Defendant’s first direct appeal to this court, appellate courts are duty bound to correct sentences which violate the trial court’s statutory authority to issue consecutive sentences under
Defendant’s argument regarding his re-sentencing is different. Defendant argues that the exception to the 1994 version of
Therefore, we conclude that Defendant’s argument is not precluded by the law of the case. Further, because this issue involves a review of statutory authority for a sentence, it is one of fundamental error. This issue was not waived by Defendant because it can be raised at any time.
III. CONSECUTIVE SENTENCES
At the time of Defendant’s conviction
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, ... .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.
As Defendant points out in his brief, he was not convicted of felonies for which he received an enhanced penalty because the felony resulted in serious bodily injury to the victim. While it is true that the trial court enhanced the sentences for each of the crimes beyond the presumptive sentences, thé Defendant is correct that the penalties were not enhanced due to the knowing or intentional infliction of serious bodily injury. The examples Defendant used in his brief help to illustrate the point. Battery is a Class B misdemeanor, but the penalty is enhanced to a Class C felony if serious bodily injury results.
See
The crimes as charged against Defendant did not require proof of serious bodily injury in order to enhance the penalty. Our reading of the statute leads us to the conclusion that the trial court erred by applying the exception language of the consecutive sentence statute when determining Defendant’s sentence. The trial court should have ordered Defendant to serve an aggregate sentence of thirty-four years.
CONCLUSION
The trial court erred by ordering that Defendant’s aggregate sentence should total ninety-two years. Defendant was not convicted of a crime where the penalty was enhanced due to the infliction of serious bodily injury on the victim. Defendant should have been sentenced to thirty-four years. Therefore, we remand this case for correction of Defendant’s sentence.
We vacate Defendant’s sentence and remand this case for resentencing consistent with this opinion.
GARRARD, J., and BAILEY, J., concur.