Bryant E. Wilson v. State of Indiana

Comm’n, 79, 52, 1594, reasons, For the foregoing U.S. S.Ct. we affirm the (1964)). 1609-1610, Thus, trial court’s finding contempt. of 12 L.Ed.2d 678 say we cannot that the trial court abused Affirmed. in finding contempt its discretion Wilson the of the Fifth Amendment.

on basis RILEY, J„ BRADFORD, J., and concur. respect argu

With to Wilson’s

ment that “under the Indiana Constitution immunity should be the

transactional Caito, protection,” disagree.

true we appellant testify

the had refused to claim

ing against his self-incrimination privilege

under the Fifth Amendment as well as

Article Section 14 of the Indiana Consti Bryant WILSON, E. Appellant- tution. 459 N.E.2d at 1181. On appeal, Defendant, constitutions,” the Court mentioned “[o]ur that in Kastigar observed the Court had compel held that testimony statutes Indiana, Appellee-Plaintiff. STATE exchange for both immunity use and No. 27A02-1212-CR-1012. constitutional, immunity derivative use are § and concluded that Ind. Code 35-34-2-8 Appeals Court of of Indiana. did not violate the Fifth Amendment of the Constitution, June United States nor 2013. Article Section 14 of the Indiana Constitution.4 Caito,

Id. at upon 1182-1184. Based

which was twenty years ago, decided about say

we cannot that the Indiana Constitu requires

tion immunity transactional or finding

that the trial court’s contempt

was an abuse of discretion.5 time, 4. At the provid- Ind. Code priate.” Appellant’s 35-34-2-8 Brief at 7. Because we part: "Upon request by ed in prosecuting the conclude that the trial court did not abuse its attorney, grant the immunity court shall use finding contempt, discretion in Wilson in grand jury. to a witness before the The court which involves disobedience of a court which shall instruct the witness written authority, justice, undermines the court's order open any that evidence the witness dignity, argu- we do not find that Wilson's gives grand jury, the before or evidence de- requires ment remand. To the extent that evidence, may rived from that not be used in suggests Wilson that her sentence is otherwise witness, any prosecution against criminal inappropriate, we conclude that Wilson fails unless the evidence is volunteered the wit- develop argument. the Consequently, this responsive question by ness or is not to a e.g., issue is Cooper waived. grand jury prosecutor.” (Ind.2006) N.E.2d (holding 834 n. 1 the defendant's contention was waived be- days "supported

5. Wilson mentions her sentence it by cogent of 180 cause neither Specifically, argument in her brief. authority”); states that nor citation to Shane (Ind.1999) testify her "refusal to was not 'disobedience of 398 n. 3 (holding a court authority, argument that undermines the court's that the defendant waived such, justice, dignity.' appeal by failing develop cogent argu- As maximum on ment). day contempt inappro- 'flat’ sentence is IN, Wilson, Castle, Ap- New

Bryant E. pellant Pro Se. Zoeller, Attorney General of

Gregory F. Indiana, Cooper, Dep- Katherine Modesitt IN, General, Attorney Indianapolis, uty Attorneys Appellee. for OPINION CRONE, Judge. Summary

Case denial of Bryant appeals E. Wilson his motion to correct erroneous sentence. sentencing judgment Because his is not face, erroneous on its we affirm. History Facts and Procedural In undisputed. The relevant facts are January charged the State Wilson felony rape, felony with class A class A conduct, B criminal deviate and class felo- robbery. In March ny jury found him guilty charged. April as trial court sentenced Wilson concurrent forty-five years on each of the felony twenty years A class counts and count, B felony on the class with fifteen years to be served concurrent with and years five to be served consecutive to the counts, felony sentences on the class A for aggregate fifty years. sentence of Wil- error, filed a motion to correct which son pursued was denied. then a direct Wilson appeal; this Court affirmed his convictions supreme petition and our court denied his subsequently for transfer. filed a Wilson petition post-conviction relief and a sentence, motion modification both appealed were denied. Wilson post-conviction petition, the denial of his Septem- which was affirmed 1999. In ber filed a motion for modifi- sentence, which cation of was denied.1 a motion to correct sentence may only be used to correct sentencing errors that 2, 2012, pro On November Wilson filed a are clear from the face of the judgment sentence, se motion to correct erroneous imposing the light sentence in of the argued which he that “the trial court statutory authority. Claims that require statutory authority lacked in holding a before, consideration of the proceedings part abeyance.” of his in Appel- sentence during, may or after trial pre- not be App. lant’s at 10. The trial court denied sented way of a motion to correct the motion. appeal This ensued. sentence. Discussion and Decision Id. at 787.2 “When claims of sentencing errors require consideration of matters Wilson filed his motion to correct outside the face of the sentencing judg- pursuant erroneous sentence to Indiana ment, they are best addressed promptly on 85-38-1-15, states, Code Section appeal direct and thereafter via post-con- person If the convicted erroneously is viction relief proceedings where applica- sentenced, the mistake does not render ble.” Id. the sentence void. The sentence shall On appeal, Wilson renews argu his be given corrected after written notice is ment that “the trial court lacked statutory to the person. convicted The convicted authority in holding part of his executed person present and his counsel must be sentence in abeyance.” Appellant’s Br. at when the corrected sentence is ordered. 7. We take this to mean that the trial court A motion to correct sentence must be in allegedly statutory lacked authority to im writing supported by a memoran- pose partially consecutive sentences. Wil specifically pointing dum of law out the son cites no statute expressly that prohib original defect in the sentence. partially sentences, its consecutive and in “The purpose of the statute to provide ‘is fact there is currently a opin difference of prompt, direct uncomplicated access ion on this regarding Court whether such legal process correcting for the occasional permissible.3 sentences are Compare Hull ” illegal erroneous or sentence.’ Robinson State, 799 N.E.2d 1182 and n. 1 State, (Ind.2004) 805 N.E.2d (Ind.Ct.App.2003) (disapproving partial (quoting Gaddie 566 N.E.2d ly consecutive sentences for two counts of (Ind.1991)). Robinson, In murder), our su- with Merida v. preme court held that 409-10 (Ind.Ct.App.2012) (disagreeing motions, foregoing petitions, 1. None of the that vides the court shall determine whether appellate decisions were included in the rec- imprisonment shall be served con- ord before us. currently consecutively, pro- but does not path implementing vide a partially consec- said, 2. The Robinson court also "Because utive sentences.” Indiana Code Section 35- such motions to correct sentence based on specifically require 50-1-2 does not that con- clear post- facial error are not in the nature of seriatim, secutive sentences be served or one petitions, conviction they we conclude that another, after and thus it could be said to may post-conviction also pro- be filed after a partially authorize consecutive sentences. ceeding seeking prior without authoriza- The apparently trial court in Hull believed necessary tion petitions for successive case, this to be the and we do not find this postconviction relief under Indiana Post-Con- hope belief unreasonable. We that our su- 1(12).” viction Rule 805 N.E.2d at 788. preme put court will the matter to rest in due "[tjhe says 3. The dissent statute relevant course. pro- consecutive and concurrent sentences thority that which is conferred noting that Ind. Hull’s rationale and legislature.”), trans. denied. The stat- specifically “does not Code 35-50-1-2 relevant consecutive and concurrent ute sentences prohibit partially consecutive provides that the shall de- sentences Hull”) (Crone, imposed the one such as imprisonment termine whether terms of (2013). J., trans. We dissenting), granted concurrently or shall be served consecu- was more than that Hull decided note tively, provide path but does not for im- years after was sentenced seven partially consecutive plementing sen- legal authority thus there no part, tences. relevant statute par- expressly disapproved reads: Simply put, tially consecutive sentences.4 (d) provided as Except subsection sentencing is not erro- judgment Wilson’s (e), court the shall determine whether face, its therefore the trial neous on and imprisonment shall be served err in his motion denying court did not to concurrently consecutively. The Consequent- erroneous sentence. correct may court consider the: ly, we affirm. (1) aggravating circumstances in IC Affirmed. 35-38-l-7.1(a); and (2) mitigating circumstances 35- IC FRIEDLANDER, J., concurs. 38-1-7.1(b); C.J., ROBB, opinion. dissents making a determination under this may subsection. The court order terms ROBB, Judge, dissenting. Chief imprisonment of to be served consecu- Because I believe that are courts limited tively even if are the sentences im- not to imposing sentences that are authorized However, the posed at same time. ex- statute, by only being rather than limited violence, cept for the crimes of total of to prohibited by sentences are not imprisonment, the consecutive terms of statute, respectfully I dissent. imprisonment exclusive of terms of un- 35-50-2-10, der IC 35-50-2-8 and IC to recognize subject if I this were which the defendant is sentenced for settled, split more we not have the would felony arising out of epi- convictions within our court to the majority which sode of criminal shall not conduct exceed the regarding availability partial refers of advisory felony the sentence for a which Nevertheless, ly consecutive sentences. I (1) felony higher is one class of than the sentencing believe that is a creature of most serious of the felonies legislature the and that we are limited to person the has been convicted. expressly per sentences that have been 35-50-l-2(c). Ind.Code by legislature. the Cooper mitted See (Ind.Ct.App. 1252 reading A of our law case shows that 2005) (“The sentencing trial au- court supreme court’s both this and our court states, clarity purposes years felony; 4. "For and the merely of class B it im- appellant appeal, does not contest this the partially posed consecutive sentences. Wil- authority trial court's run a to sentence con- son also the trial court asserts "that lacked whether, se, per or consecutive current but statutory authority suspend a to sentence that authority exceeded trial court its to sentence Appellant's Br. has been executed.” at 9. The Appellant felony who B committed Class correctly part State observes that "no of [Wil- (6) (20) beyond twenty years pursuant to six by suspended son’s] sentence was the trial Appellant’s I.C. 35-50-2-5.” at 6 n. Br. 1. court; fully-executed fifty-year he received a assertion, Contrary to Wilson's the trial court Appellee’s Br. at 7 n. 3. sentence.” twenty did not sentence him than to more regularly phrase by use the “authorized trial may only impose a sentence discussing sentencing authorized, when statute” and that is any and unauthorized our standard of review for sentences. aspect of a sentence is void may be e.g., Bish N.E.2d anytime”), denied, attacked at appeal (Ind.1981) (“Thus, imposed sentences Ill.Dec. (Ill.2012); 968 N.E.2d 1070 if statute, by were authorized if those sen- Cantu, City Bozeman v. 369 Mont. unreasonable, manifestly tences are not (2013) (“It 296 P.3d is well estab if the record discloses the trial court’s lished that a court power does not have the Ending of aggravating mitigating and/or impose a sentence unless authorized circumstances, this Court will not revise or specific grant statutory authority. A strike down the in question.”) sentences sentencing condition illegal if the sen added). ever, (emphasis rarely, We if use tencing court statutory lacked authority phrase “not prohibited by statute.” it, impose if the condition falls outside the rote, phrasing While such may become and parameters set the applicable sentenc the distinction between a sentence that is statutes, ing or if the court did not adhere authorized statute and one that is sim- to the affirmative applica mandates of the ply prohibited not is immaterial in many statutes.”) (citations sentencing ble cases, I believe the difference impor- is omitted); quotation marks State Rap v. here, especially where a sentence is tant — chack, 716, 1289, 150 N.M. 265 P.3d 1291 in that grey area that is neither expressly (“A (Ct.App.2011) trial power court’s to expressly prohibited allowed nor under our sentence is exclusively derived from stat sentencing statutes. ute.”) (citation omitted), denied, cert. jurisdictions

The case law of other lends (N.M.2011). P.3d 1253 Additionally, the support my to belief that we are limited to United States Supreme Court has refer sentences that are expressly permitted by enced the legislature’s fact that a failure to States, e.g., statute. Scanio United prohibit particular a sentence does not (2d 858, Cir.1994) (“The 37 F.3d courts equate legislature’s to that approval of the generally have upon frowned permitting Florida, sentence. Graham v. 560 U.S. even the courts modify themselves to a 48, (2010) 130 S.Ct. 176 L.Ed.2d 825 prisoner’s expressly sentence unless au (noting that the many jurisdic fact that statute.”); thorized Glaze 2011 tions expressly prohibit do not the sen (2011) (“Be Ark. 385 S.W.3d tencing practice at issue is not dispositive sentencing entirely cause a matter of because it does not necessarily follow that statute, the circuit court has the au legislatures jurisdictions those have thority impose particular sentence deliberately concluded that such sentences when it complies applicable with the stat appropriate). would be ute.”); Winkler v. Ark.App. Because the in question sentence — 704, 13-14, -, S.W.3d 2012 WL explicitly statute, not permitted by I be- (2012) (“A sentence is void or lieve it was therefore erroneous. For that illegal when the trial court authority lacks reason, I would reverse the trial court’s impose it. Because sentencing is entire denial of Wilson’s motion to correct erro- statute, ly a matter of the circuit court has neous sentence. authority impose a particular sen tence only complies when it appli statute.”) (citation omitted);

cable People Oshana, 358 Ill.Dec. (“However, 1192 (Ill.App.Ct.2012)

Case Details

Case Name: Bryant E. Wilson v. State of Indiana

Court Name: Indiana Court of Appeals

Date Published: Jun 3, 2013

Citation: 988 N.E.2d 1221

Docket Number: 27A02-1212-CR-1012

Court Abbreviation: Ind. Ct. App.