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
                                        _________________________________
                                        Randall T. Shepard
                                        Chief Justice of Indiana All Justices concur.