*1 employ attorney, nancial resources to an imposing hardship substantial
without FLOWERS, Jr., Appellant, Thomas M. family, or his the court must himself appoint counsel to defend him." Id. at Indiana, Appellee. STATE of 401 N.E.2d at Although opinion the author of this No. 383S104 joined Pivarnik in his in Justice dissent Supreme Court of Indiana. case, the facts set in the Moore out dissent- ing opinion distinguishable in Moore are 10, 1988. Feb. Moore, in this from facts case. pointed
dissent out that equi- Moore had an
ty equipment in real estate as well drilling pointed business. dissent
well
out that should have been re-
quired to make use of these assets before required pau-
the court to appoint would be
per counsel. bar, appellant
In the case at had no such principle
assets. The of laid down law majority applies in Moore to the case at very apparent
bar. This becomes when period appellant
over a ten-month continu-
ously go he indicated that did not wish to
to trial without the aid of counsel and did attorneys
in fact contact did several but months, employ
not them. After he ten required go to trial without clearly of
benefit counsel and demonstrated incapable defending
at trial that he
himself.
Although we are reluctant to override a
trial court's discretion in a matter of this
kind, although showed
great patience giving appellant every counsel,
opportunity employ we never-
theless feel exam- that when record is apparent appellant's
ined it becomes
expectation employ able counsel choosing
of his own was unrealistic. We ap-
find that the trial court should have
pointed represent counsel to
his defense.
The trial court is reversed and the case is
remanded for a trial.
SHEPARD, C.J., DeBRULER, DICKSON, JJ.,
PIVARNIK and concur. *2 light
"In of our decision in Issue IX we remand with instructions to appel- vacate lant's convictions and sentences for class A burglary, attempted class A rape, and class A robbery; and to enter convictions appropriate and class B burglary, B attempted rape, class and class C robbery, in their stead. In all respects other the convic- tions and sentences are affirmed." Id. at 107. remand,
Upon the trial court entered the following corrected sentence:
"The Court further finds that both at original the again sentence and now, appropriate overall sen- years. tence is 80 The Court on Count III vacates the Class A Felony conviction Judgment and enters of Conviction of a Felony, Class C for Count IV vacates the Felony Class A conviction and enters a Judgment of Conviction of a Class B Felony, and for Count V vacates the Felony Class A conviction and enters a Susan K. Carpenter, Defender, Public Judgment of Conviction of a Class B Gardner, C.H. Defender, Public In- Deputy Felony. IV, For Count Burglary as a dianapolis, appellant. for Felony, Class B the Court enhances the Linley Pearson, Gen., Atty. presumptive year E. 10 Indianapo- by sentence years 5 lis, John H. Meyers, Atty. Pros. for the and sentences the years, defendant to 15 said Twenty-third Circuit, sentence to be consecutively served Judicial Daniel A. I; V, Lane, Count for Attempted Count Deputy Atty. Pros. Twenty- for the Rape Felony, as a Class B Circuit, third Judicial Lafayette, appel- for presumptive enhances the year 10 sen- lee. years
tence
5
and sentences the de-
years,
fendant to 15
said sentence to be
GIVAN, Justice.
IV;
consecutively
served
to Count
for
Appellant
originally
convicted of At-
III, Attempted Robbery
Count
as a Class
tempted Murder, for which he received a
Felony,
pre-
C
the Court enhances the
presumptive
(80)
thirty
years
sentence of
sumptive year
by years
sentence
and
(20)
which was enhanced
twenty
years
years,
sentences the defendant to 8
said
aggravating
because of
circumstances.
sentence
concurrently
to be served
with
Appellant
thirty
also received sentences of
all other sentences. The Court recom-
(30) years each for Robbery Causing Seri-
mends that the defendant serve his sen-
Bodily
ous
Injury, Burglary,
Attempt-
security
tences
a maximum
institu-
Rape.
ed
tion."
Appellant perfected
from that
Appellant
appeals
now
from the resen-
conviction. See Flowers v. State
tencing. Appellant claims the trial court
Ind., 481
appeal,
N.E.2d 100. In that
giving greater
presump-
erred in
than the
Court found that the trial court had erred
tive
B
sentences for the two Class
felonies
in giving
Burgla-
Class A sentences for the
felony
and the one Class C
and that the
ry, Attempted Rape,
Attempted
Rob-
by ordering
trial court further erred
consecutively
bery charges.
sentences to run
rather than
cause was therefore
language:
concurrently. Appellant
remanded with
following
claims he was en-
titled to have the same
doing
treatment under the
remained within the
he had
new sentences which
under
received
prescribed by
bounds
the statutes.
sentence,
original
that is to
receive
Appellant
argues
further
presumptive time on each crime and to
jeopardy
double
clause of the Fifth Amend
concurrently.
have them run
ment of the Constitution of the United
He first claims that since this Court
increasing
States
bars
his sentence
*3
did not remand the cause for a new sen
remand. There are certain cireumstances
tencing hearing, it
provide
did not intend to
in
may
which sentences
be increased on
the
court
opportunity
trial
with the
to find
remand.
(1986),
See Williams v. State
Ind.
aggravating
as to
factors
these counts.
--
App.,
1001,
denied,
494 N.E.2d
cert.
Appellant
in error in
regard.
The
-,
2191,
U.S.
107 S.Ct.
ble jeopardy protection from re-sen- DeBRULER, J., concurs and dissents tenced on remaining separate with opinion in which counts. DICKSON, J., concurs. In Bozza v. United States 160, 166-67, U.S. 645, 649, 67 S.Ct. DeBRULER, Justice, 91 L.Ed. concurring and dis- 818, 822, after discussing senting. a pro- similar posed restriction, the Court observed that In his first sentence received such a restriction would truly make sen- augmented an sentence fifty (50) years tencing game "a in which a wrong move for attempted murder, and presumptive a means immunity for prisoner." thirty (80) sentences of years each for the We see no reason impose such a restric- three felonies: burglary, attempted rape, tion a judge. trial robbery. (50) The fifty year sentence for attempted murder was to run Appellant claims the trial court consecutively to the sentences for the other in denying erred his motion for a continu *4 three felonies. The sentences for the other ance and an opportunity present to evi three were to run concurrently with each dence relevant to his resentencing. He other. The sentencing court thus used its claims this became necessary when the tri determination of aggravating cireumstanc- al court read into the record adopted and es for two purposes, distinct namely, first, its conclusions from evidence submitted at to enhance attempted sentence, murder appellant's initial sentencing. We fail to and, second, to order attempted murder appellant follow in this argument. Had the sentence to be served consecutively. The trial opened court the matter and received handling of aggravating circumstances was a presentence new report and had entered completely legitimate and by unaffected into factual situations not previously con this court's determination on that it sidered, appellant's position of course had illegal been for the sentencing court to would have had However, merit. consider the burglary, attempted rape and judge pointed trial out in ruling attempted appel robbery as class A felonies. motion, lant's he was not considering new In order to illegal erase the aspect of the evidence but was considering only the evi sentencing, we ordered the following as dence which had been submitted at the quoted also in the majority opinion: prior trial only and presentence investi "In light of our decision in Issue IX we gation report submitted at that time. remand with instructions to appel- vacate lant's Absolutely convictions and nothing sentences new for class con A burglary, sidered class A attempted rape, trial court and which was un class A attempted robbery; known and to at enter the time of his first convictions and appropriate sentencing. Whether or grant not to con class B burglary, class B attempted rape, tinuance under the circumstances was en and class tirely C within the discretion of the trial robbery, their stead. In all other respects the convic- judge. Peters (1984), v. Ind., State tions and sentences are affirmed." N.E.2d 708. There nothing in the re mand Flowers (1985), Ind., v. State Court that mandated N.E.2d the re opening aspects 107. Two the evidence of the sentences concerning aggra vating or mitigating which were "affirmed" cireumstances. War were the decisions to run the attempted than murder Ind., State sentence con- 443 N.E.2d The trial secutive to the cluster of court did not err in refusing to three and to have the sentences for the grant felonies within the a continuance at the time cluster to run concurrently with one of his anoth- resentencing. When, therefore, er. judge al- The trial court is affirmed. sentencing tered his order so as require that the sentences for the cluster of three SHEPARD, C.J., PIVARNIK, and J., run consecutive another, to one he was concur. inconsistent with our affirmance of that sentence, mary, secondary, acted in a or aspect prior ofhis local counsel. This temporary suspension with our remand or- shall terminate manner inconsistent at pending any der. the time all estates now upon Respondent court which is listed as rulings court, I affirm the of the would Respondent counsel are closed and the suf- sentencing require order but ficiently Disciplinary satisfies the Commis- single namely by respect, modified in a be sion there are no other cases burglary, requiring that the sentences for delinquent office are or which which rape, attempted robbery the statutes of limitations are to run. about concurrently. served of this Clerk directed DICKSON, J., concurs. provide temporary suspension notice of this Discipline
as set forth in Admission and 8d). Rule Section All Justices concur.
In the Matter of Donald
John O'NEILL.
No. 09S00-8702-DI-231. *5 Supreme Court of Indiana. In the Matter of H. Steven GOLDSTEIN. 16, 1988.
Feb. No. 49S00-8611-DI-982. OF TEMPORARY ORDER Supreme of Court Indiana. SUSPENSION proceeding This is now before the Court 16, 1988. Feb. Suspension on a Motion for Pend- "Verified ing Disciplinary ORDER RESIGNATIONS Prosecution" filed APPROVING CAUSE pursuant of this Court to Ad- AND DISMISSING AS MOOT Commission 28, Discipline mission and Rule Sections Respondent, Steven H. Comes now 11(c) proce- 14(g). Pursuant to the Goldstein, resignation and tenders his provisions a dures set forth under these pursuant to Admission and Disci- affidavit duly ap- conducted and the pline Rule Section 17. pointed Hearing has tendered his Officer advised, Court, being duly And this now fact, fully in findings appear of which more Respondent's meets finds that the affidavit follows, figures words and to-wit: necessary set forth in Admis- elements (H.L) Discipline sion and Rule Section Accordingly, accepts Respon- Court, upon the mat- This examination of resignation is to effective dent's which us, Hearing ters before now finds that 25, 1986, July ap- as of date which the Officer's recommendations should be voluntarily Respondent withdrew from the proved. light Respondent's practice of law. of THEREFORE, ORDERED, IT AD- IS resignation, we find further that the disci- JUDGED AND DECREED this Court against Respondent is plinary action during proceed- pendency of this as such. moot and should be dismissed now ing, O'Neill, Respondent, Donald John ORDERED, AD- THEREFORE hereby suspended practice is from the IT IS Stephen AND DECREED practice any the extent that such involves JUDGED mem- hereby removed as a legal employment, contracts H. Goldstein wheth- and that the the Bar of this State employment pri- er such includes service as ber