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02/10/88 THOMAS M. FLOWERS v. STATE INDIANA

Filed: February 10, 1988.

THOMAS M. FLOWERS, JR., APPELLANT
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM PUTNAM CIRCUIT COURT, The Honorable William C. Vaughn III, Judge, Cause No. CR-81-110.

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

Author: Givan

GIVAN, J.

Appellant was originally convicted of Attempted Murder, for which he received a presumptive sentence of thirty (30) years which was enhanced by twenty (20) years because of aggravating circumstances. Appellant also received sentences of thirty (30) years each for Robbery Causing Serious Bodily Injury, Burglary, and Attempted Rape.

Appellant perfected his appeal from that conviction. See Flowers v. State (1985), Ind., 481 N.E.2d 100. In that appeal, this Court found that the trial court had erred in giving Class A sentences for the Burglary, Attempted Rape, and Attempted Robbery charges. The cause was therefore remanded with the following language:

"In light of our decision in Issue IX we remand with instructions to vacate appellant's convictions and sentences for class A burglary, class A attempted rape, and class A attempted robbery; and to enter convictions and appropriate sentences for class B burglary, class B attempted rape, and class C attempted robbery, in their stead. In all other respects the convictions and sentences are affirmed." Id. at 107

Upon remand, the trial court entered the following corrected sentence:

"The Court further finds that both at the original sentence hearing and again now, that the appropriate overall sentence is 80 years. The Court on Count III vacates the Class A Felony conviction and enters Judgment of Conviction of a Class C Felony, for Count IV vacates the Class A Felony conviction and enters a Judgment of Conviction of a Class B Felony, and for Count V vacates the Class A Felony conviction and enters a Judgment of Conviction of a Class B Felony. For Count IV, Burglary as a Class B Felony, the Court enhances the presumptive 10 year sentence by 5 years and sentences the defendant to 15 years, said sentence to be served consecutively to Count I; for Count V, Attempted Rape as a Class B Felony, the Court enhances the presumptive 10 year sentence by 5 years and sentences the defendant to 15 years, said sentence to be served consecutively to Count IV; for Count III, Attempted Robbery as a Class C Felony, the Court enhances the presumptive 5 year sentence by 3 years and sentences the defendant to 8 years, said sentence to be served concurrently with all other sentences. The Court recommends that the defendant serve his sentences in a maximum security institution."

Appellant now appeals from the resentencing. Appellant claims the trial court erred in giving greater than the presumptive sentences for the two Class B felonies and the one Class C felony and that the trial court further erred by ordering the sentences to run consecutively rather than concurrently. Appellant claims he was entitled to have the same treatment under the new sentences which he had received under the original sentence, that is to receive the presumptive time on each crime and to have them run concurrently.

He first claims that since this Court did not remand the cause for a new sentencing hearing, it did not intend to provide the trial court with the opportunity to find aggravating factors as to these counts. Appellant is in error in this regard. The order of remand above quoted simply states that the trial court is to "enter convictions and appropriate sentences for Class B Burglary, Class C Attempted Rape, and Class C Attempted Robbery." The language clearly anticipates that the trial Judge was to sentence appellant for those crimes in the same manner as if he were sentencing any other person on like charges.

When the trial court Judge entered the corrected sentence pursuant to the remand, he specifically found the same aggravating circumstances he had originally found. No new hearing was held and nothing was changed as far as the factual situation upon which the original sentence had been based.

In the original sentence, the trial Judge had found aggravating circumstances and had applied them to the attempted murder conviction. As to the other sentences, he originally, in treating them as Class A felonies, merely gave the presumptive sentences and ordered that they would run concurrently with each other but consecutive to the attempted murder charge.

Upon resentencing, the Judge observed that had he chosen to do so he could have rendered a sentence that would have equaled two hundred (200) years; however, he felt, based on all the evidence at the original sentencing hearing, an overall sentence of eighty (80) years was the appropriate sentence to be imposed for the entire criminal episode. He further stated that in complying with the mandate of the Supreme Court, he was still under the opinion that the sentences should be assessed in such a manner as to reach the result of an overall sentence of eighty (80) years. In so doing the Judge remained within the bounds prescribed by the statutes.

Appellant further argues that the double jeopardy clause of the Fifth Amendment of the Constitution of the United States bars increasing his sentence upon remand. There are certain circumstances in which sentences may be increased on remand. See Williams v. State (1986), Ind.App., 494 N.E.2d 1001, cert. denied, 107 S.Ct. 2191, 95 L.Ed.2d 846. However, we do not need to go into the detail of those cases in this instance. Here the trial Judge did not render an increased sentence upon remand. Although the trial Judge applied the sentencing statutes in a different manner on the resentencing, the net result was to give appellant the same amount of total time he had received on the first sentencing. Thus there was no ...


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