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09/02/87 TIMOTHY KILLIAN v. STATE INDIANA

Filed: September 2, 1987.

TIMOTHY KILLIAN, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE TIPPECANOE COUNTY SUPERIOR COURT, The Honorable Kenneth Thayer, Judge, COURT OF APPEALS NO. 79A04-8604-CR-122.

DeBRULER, J., Shepard, C.j., Dickson, J. concur, Givan, J., Dissents with opinion in which Pivarnik, J., concurs.

Author: Debruler

PETITION FOR TRANSFER

DeBRULER, J. -

Appellant Killian was convicted of unlawful deviate conduct in November of 1982. He received the presumptive sentence of ten years to run consecutive to commitments for two other crimes. The conviction was affirmed in Killian v. State (1984), Ind.App., 467 N.E.2d 1265. Thereafter he filed a motion to correct erroneous sentence, which was denied. On appeal the Fourth District of the Court of Appeals reversed in an unpublished opinion, and ordered a new sentencing hearing, because of the lack of support for that part of the judgment requiring the sentence to be consecutive. On the petition of Killian, we now grant transfer.

At the outset we agree with the holding of the Fourth District that appellant's claim that his sentence was erroneous was not waived or foreclosed by his failure to raise it in an objection at the time of sentencing or to otherwise raise it in his motion to correct errors and his direct appeal. A sentence premised upon an incorrect interpretation of a statute setting criminal penalties, obvious on the face of the record, is fundamental error. Vawter v. State (1972), 258 Ind. 168, 279 N.E.2d 805. Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822.

The evidence upon which the conviction rests reveals that appellant was in jail awaiting trial upon burglary and theft charges when he participated in an assault upon another prisoner. Upon conviction for the assault, the trial court ordered that the sentence be served consecutively to the sentences meted out for the burglary and theft charges. The court concluded that this result was mandated by I.C. 35-50-1-2 which requires consecutive sentences when a crime is committed after an arrest for another crime and before discharge from penalties for that other crime. This Conclusion was error, as in Hutchinson v. State (1985), Ind., 477 N.E.2d 850, this court held that the statute applied only to persons on parole, probation or serving a term of imprisonment at the time the second offense was committed. The opinion of the Court of Appeals was correct in concluding that the consecutive sentence order could not rest upon the mandatory provision in the statute and for such reason must be vacated.

Appellant now challenges the order of the Fourth District in so far as it remands the case to the sentencing court for a new sentencing hearing. This court has held in a like case, that when two elements are present, the requirement of consecutiveness must be vacated, and a requirement of concurrent terms substituted therefor, without discretion by the sentencing court. Taylor v. State (1982), Ind., 442 N.E.2d 1087. First the decision must rest upon I.C. 35-50-1-2(b) when that statute is not applicable. This element is present here as indicated above. Second, the sentencing court must make a specific statement that no aggravating circumstances are present. This statement is twice made by the trial court in its exchange with counsel at the time of reaching its Conclusions regarding the sentence.

THE COURT: . . . I have looked over the possibility of consecutive sentences, and until the State mentioned it I had intended to place consecutive sentences. Do I have any discretion in the matter? I could make that run concurrent with this other crime that took place prior to that?

MR. RUDMAN (Prosecuting Attorney):

I'm not sure. I have to look at a statute.

THE COURT: This was an entirely separate offense, none of those same facts, and as the State points out you were in jail. Committing a crime in jail is a --- I don't know how you're supposed to get around that. I don't see any reward for it. Do you, counsel, show me again how /--

MR. DONAT (Defense Attorney):

No, I have researched it. I have no good ...


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