From Casetext: Smarter Legal Research

Thompson v. State

Court of Appeals of Indiana, First District
Oct 10, 1978
380 N.E.2d 1292 (Ind. Ct. App. 1978)

Opinion


380 N.E.2d 1292 (Ind.App. 1 Dist. 1978) Richard THOMPSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 1-1177A283. Court of Appeals of Indiana, First District. October 10, 1978

       Harriette Bailey Conn, Public Defender, Howard N. Bernstein, Deputy Public Defender, Indianapolis, for appellant.

       Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

       ROBERTSON, Judge.

       Defendant-appellant Richard Thompson (Thompson) was charged by way of information with First Degree Burglary pursuant to Ind.Code 35-13-4-4(a), and subsequently pleaded guilty to Entering to Commit a Felony under IC 35-13-4-5. Thompson was sentenced in accordance with a plea bargaining agreement with plaintiff-appellee State of Indiana (State) to an indeterminate period of one to ten years. Thompson's sole contention is that his sentence must be reduced to one to five years.

       At the threshold, we must determine whether this case is properly before us as a Petition for Post-Conviction Relief under Ind.Rules of Procedure, Post-Conviction Rule 1. Thompson was sentenced on January 3, 1977, and thereafter on July 11, 1977, filed a "Petition to Correct Sentence," purportedly under the authority IC 1971, 35-8-1A-17 (Burns Code Ed.). , The petition was denied after a hearing on July 12, and Thompson's motion to correct errors suffered the same fate on August 30.

The official Indiana Code number for this section is IC 35-4.1-4-17.

By its terms, the petition stated it was properly reviewable under 35-7-1-1. The petition, however, prayed for a Correction of the sentence, and not for suspension and parole. Furthermore, Thompson bases his argument here on the assertion that the petition was properly before the court pursuant to 35-8-1A-17. Therefore, we will treat it as a petition seeking relief under 35-8-1A-17.

       Reluctantly, we must vacate the proceedings held below on Thompson's petition because it was not properly before the trial court. IC 35-8-1A-17, Supra, is the statutory Authority for a trial court to correct an erroneous sentence. It does not, however, provide a procedural mechanism to raise the issue. It is beyond cavil that the Supreme Court of Indiana is vested with inherent authority to promulgate procedural rules, and legislative enactments in conflict therewith must succumb to the paramount authority of our Supreme Court. IC 34-5-1-2; IC 34-5-2-1; State v. Bridenhager (1972), 257 Ind. 699, 279 N.E.2d 794. Since the Supreme Court has seen fit to adopt rules providing the method to review and correct an erroneous sentence predicated on IC 35-8-1A-17, Thompson may procedurally seek his remedy only in accordance therewith.

       The Supreme Court has paved procedural avenues for the review of an erroneous sentence. First, a basis for relief pursuant to the statute may be presented by filing a motion to correct errors under Ind.Rules of Procedure, Trial Rule 59(A)(9). IC 35-8-1A-17, provides relief from an erroneous sentence, and such error may accordingly be raised pursuant to TR. 59(A)(9). Weyls v. State (1977), Ind., 362 N.E.2d 481. Thompson, however, foreclosed this opportunity for relief by failing to file the motion within sixty days of sentencing. TR. 59(C).

       Nevertheless, Thompson had another available mechanism to raise the issue of his erroneous sentence under Indiana Rules of Procedure, Post-Conviction Rule 1, § 1(a)(3). Unfortunately, his second attempt did not come within the purview of P.C. 1 since the petition was not verified, was not signed by the petitioner, and otherwise was not in compliance with the requirements of Post-Conviction Remedy Rule 1. We are not unmindful of the policy proclaimed in Lamb v. State (1975), 263 Ind. 137, 325 N.E.2d 180, that we strive to address post-conviction relief claims, "rather than to preclude review by invoking procedural technicalities." 263 Ind. at 144, 325 N.E.2d at 184. But this court has held that the verification requirement is not a mere technicality, and serves the substantial purpose of "finally closing the door to post-conviction remedies." Owen v. State (1975), Ind.App., 338 N.E.2d 715, 718. The verification requirement mandates that Petitioner include every available claim for relief known to him, and the failure to do so results in a waiver of additional grounds raised in a subsequent petition. P.C. 1, § 8.

       Therefore, Thompson has failed procedurally to present his claimed error. In Owen, supra, we held that an unverified petition should not be considered by the trial court, a party must raise the matter by correct procedural means. See State ex rel. Hurd v. Davis (1948), 226 Ind. 526, 82 N.E.2d 82.

       We are frustrated with this result because we are unable to reach the meritorious claim Thompson presents. Therefore, we must remand this cause to the trial court with instructions to vacate the proceedings below, with leave to the petitioner to submit a verified petition in accord with the form appended to our post-conviction relief rules.

The trial court concluded Thompson's plea was accepted to the Separate charge of Entering To Commit a Felony, and not as a lesser Included offense of Burglary. However, the five year maximum sentence rule applies irrespective of whether or not the "greater" offense is charged. Lee v. State (1972), 259 Ind. 301, 286 N.E.2d 840; Heathe v. State (1971), 257 Ind. 345, 274 N.E.2d 697.

       Cause remanded with instructions to dismiss Thompson's Petition to Correct Sentence, without prejudice to his right to file a Petition for Post-Conviction Relief in compliance with P.C. 1.

       LYBROOK, P. J., and LOWDERMILK, J., concur.


Summaries of

Thompson v. State

Court of Appeals of Indiana, First District
Oct 10, 1978
380 N.E.2d 1292 (Ind. Ct. App. 1978)
Case details for

Thompson v. State

Case Details

Full title:Richard THOMPSON, Appellant (Defendant below), v. STATE of Indiana…

Court:Court of Appeals of Indiana, First District

Date published: Oct 10, 1978

Citations

380 N.E.2d 1292 (Ind. Ct. App. 1978)

Citing Cases

Thompson v. State

Thompson appealed his sentence to the First District, Indiana Court of Appeals, arguing that his sentence…