Fight v. State
768 N.E.2d 881
Ind.2002Check Treatment
IN THE INDIANA SUPREME COURT
FIGHT, Charles Lee, Jr.,
appellant,
v.
STATE OF INDIANA
appellee.
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Supreme Court case no.
19S01-0203-CR-191
Court of Appeals case no.
19A01-0103-CR-89
DuBois Circuit Court case no.
19C01-0004-CF-0128
PUBLISHED ORDER
This matter comes before the Court on a petition to transfer
jurisdiction from the Court of Appeals pursuant to Indiana Appellate Rule
57. The Court of Appeals affirmed the convictions and sentence in an
opinion which is published at Fight v. State, 759 N.E.2d 1131 (Ind. Ct.
App. 2001). For the reasons explained below, the petition to transfer is
granted and the case remanded to the trial court for resentencing.
Following a jury trial, Appellant was convicted of three counts of
attempted murder and one count of criminal mischief. Following submission
of evidence on the aggravating and mitigating circumstances, the trial
court sentenced Appellant to forty years on each of the three counts of
attempted murder (the presumptive sentence plus ten years for aggravating
circumstances), and to three years for the criminal mischief conviction
(the presumptive sentence plus one and one-half years for aggravating
circumstances). The trial court ordered that two of the attempted murder
sentences and the criminal mischief sentence be served concurrently. The
third attempted murder sentence, imposed with respect to the victim who had
been injured, was ordered to be served consecutively to the others. Thus,
the sentence called for a total executed term of eighty years.
Appellant is correct that this sentence violates the statutory
limitation on consecutive sentencing in Indiana Code § 35-50-1-2 (1998).
This statute limits a court's authority in imposing consecutive sentences
if the convictions are not for "crimes of violence" and the convictions
"arise out of an episode of criminal conduct." If both of these
circumstances exist, the total executed term is limited to the presumptive
sentence of the next higher class of felony. The statute provides in part:
[E]xcept for crimes of violence, the total of the consecutive terms of
imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8
and IC 35-50-2-10 [relating to habitual offender sentences], 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.
Ind. Code § 35-50-1-2(c). Here, that Appellant’s felony convictions “arose
out of an episode of criminal conduct” is not disputed. At issue is
whether the convictions were for "crimes of violence" as such crimes are
defined in subsection (a) of the statute. As the Court noted in Ellis v.
State, 736 N.E.2d 731, 736 (Ind. 2000), the statute defines "crimes of
violence" by supplying a straightforward list of crimes. Neither attempted
murder nor criminal mischief were on the list in 2000 when Appellant
committed and was tried for these crimes. See Ind. Code § 35-50-1-2(a)
(1998). (The statute was amended, however, in 2001 to include attempted
murder as a “crime of violence.” See Ind. Code § 35-50-1-2 (2001 Supp.)).
Thus, both circumstances for application of the limitation in Indiana
Code § 35-50-1-2 exist here, and the limitation should have been applied.
The most serious felony for which Appellant was convicted was attempted
murder, a Class A felony. The presumptive sentence for the felony one
class higher than attempted murder, is fifty-five years. Ellis, 736 N.E.2d
at 737. Therefore, the total term of imprisonment to which Appellant may
be sentenced is fifty-five years.
The Court of Appeals acknowledged that attempted murder was not on
the statutory "crimes of violence" list, but decided that the limitation on
consecutive sentences did not apply because one of the attempted murders
resulted in “serious bodily injury.” See Fight, 759 N.E.2d at 1138-39
(citing Greer v. State, 684 N.E.2d 1140 (1997)). The Court of Appeals’
reliance on Greer is misplaced. Greer construed a previous version of the
statute, which exempted from the limitation on consecutive sentences
convictions for murder or for a felony which resulted in “serious bodily
injury.” Greer, 684 N.E.2d at 1142 (construing I.C. § 35-50-1-2 (1994)).
As both Greer and Ellis noted, however, the “serious bodily injury”
language was repealed and replaced with the list in the statute applicable
to this case. Ellis, 736 N.E.2d at 737 n.14; Greer, 684 N.E.2d at 1141
n.6.
Appellant’s erroneous sentence is VACATED and the case is REMANDED to
the trial court for resentencing consistent with Indiana Code § 35-50-1-2
(1998). The trial court may, in its discretion, either: (1) hold a new
sentencing hearing, with or without the submission of evidence; (2) direct
additional briefing to assist with the preparation of a new sentencing
order; or (3) prepare a new sentencing order if no hearing or additional
briefing is deemed necessary.
The petition to transfer is GRANTED. The portions of the Court of
Appeals opinion relating to the sufficiency of the evidence and double
jeopardy are summarily affirmed. See App. R. 58.
The Clerk is directed to send a copy of this order to the DeBois
Circuit Court; and to counsel of record.
Done at Indianapolis, Indiana this 22nd day of March, 2002.
s/Randall T. Shepard
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Randall T. Shepard
Chief Justice of Indiana
All Justices concur.