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02/11/88 JAMES EDWARDS v. STATE INDIANA

Filed: February 11, 1988.

JAMES EDWARDS, DEFENDANT-APPELLANT
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE



APPEAL FROM THE MONROE SUPERIOR COURT III, The Honorable David K. Johnson, Special Judge Cause No. CF-8211-007-D.

Neal, J., Ratliff, C.j. and Conover, J. Concur.

Author: Neal

NEAL, J.

STATEMENT OF THE CASE

Defendant-appellant, James Edwards (Edwards), appeals a decision from the Monroe Superior Court on his motion to correct erroneous sentence, setting aside his habitual offender conviction, but denying further correction and reduction of his sentence.

We reverse in part and affirm in part.

STATEMENT OF THE FACTS

On January 26, 1983, following a jury trial, Edwards was convicted of Count I, burglary, a Class A felony, Counts II and III, confinement, a Class B felony, and Counts IV and V, attempted rape, a Class A felony. He was also found to be an habitual offender. The trial court sentenced Edwards to 30 years for Count I, 10 years each for Counts II and III, 40 years each for Counts IV and V, and enhanced the penalty 30 years due to his habitual offender status. The trial court ordered Counts I, IV, V, and the habitual offender enhancement to be served consecutively, and the sentences on Counts II and III to be served concurrently for a prison term totaling 140 years. Edwards's conviction was confirmed on direct appeal. Edwards v. State (1985), Ind., 479 N.E.2d 541. However, the supreme court noted that the trial court's sentencing relative to Edward's habitual offender status was incorrect. The case was remanded to the trial court with instructions to vacate that part of the sentence ordering the habitual offender status to be served consecutively and to assign that sentence as an enhancement of one of the sentences imposed under the felony convictions.

Meanwhile, Edwards initiated post-conviction relief proceedings in a separate case, seeking to vacate the guilty plea he entered November 1, 1976, which led to his conviction for rape. Likewise he sought post-conviction relief to set aside a guilty plea which led to his conviction for possession of dangerous drugs in 1972. These two prior convictions were the supporting felony convictions upon which his habitual offender determination rested. Thereafter, edwards received a judgment vacating his guilty plea to possession of dangerous drugs, the post-conviction court having determined that the trial court did not explicitly advise him of the constitutional rights specifically enumerated in Boykin v. Alabama (1969), 395 U.S. 238. Edwards also successfully set aside his guilty plea to rape. The post-conviction court reviewing that plea concluded that the trial court failed to inform Edwards of the possibility of an increased sentence due to prior convictions and that the court was not a party to or bound by the plea agreement in compliance with IND. CODE 35-35-1-2. Both guilty pleas were vacated prior to the revised rule implemented with the supreme court's decision in White v. State (1986), Ind., 497 N.E.2d 893.

Edwards subsequently filed a pro se motion to correct erroneous sentence, asserting that his habitual offender enhancement should be set aside because the two supporting felony convictions had been vacated. His motion also requested the trial court to reduce and impose the presumptive sentence for Counts IV and V, and to order all sentences imposed to be served concurrently. The trial court summarily ruled on Edwards's motion, vacating the habitual offender sentence enhancement but denying all other grounds for relief. Edwards filed a motion to correct errors on September 8, 1986. His motion was granted, the ruling on his motion to correct erroneous sentence was set aside, and an evidentiary hearing was ordered. The hearing was held on January 30, 1987, and both Edwards and his attorney were present. After Edwards testified and presented argument, the matter was taken under advisement. On February 23, the trial court issued a written order setting aside the habitual offender sentence but refused to further reduce the sentence he received for his principal convictions. Edward subsequently instituted this appeal.

ISSUES

Edwards presents the following issues for our review:

I. Whether Edwards's sentence is manifestly unreasonable.

II. Whether the resentencing court erred in considering his vacated convictions when ...


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