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04/06/88 JAMES SIMS v. STATE INDIANA

Filed: April 6, 1988.

JAMES SIMS, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM MARION COUNTY SUPERIOR COURT, CRIMINAL DIVISION ONE, The Honorable John W. Tranberg, Judge, Cause No. CR76-076A.

Givan, J., Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

A jury trial resulted in appellant's conviction of Commission of a Felony (robbery) While Armed, for which he received a ten (10) year sentence, Involuntary Manslaughter, and First Degree Murder, for which he received a life sentence. The trial court vacated the Involuntary Manslaughter charge. Upon direct appeal to this Court, his conviction and sentence for Felony Murder were affirmed and his conviction for armed robbery was vacated. Sims v. State (1977), 267 Ind. 215, 368 N.E.2d 1352.

Appellant now asserts that four errors occurred in the denial of his petition for post-conviction relief. Appellant believes he has been convicted of the wrong crime. He asserts that the facts in his case justify a finding of involuntary manslaughter as defined in Ind.Code § 35-13-4-2 (repealed), and not felony murder.

Therefore, the trial court should not have vacated his involuntary manslaughter charge but should have dismissed the felony murder charge instead.

The purpose of the post-conviction relief process is for raising issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Appellant did not pursue this argument on direct appeal, though it was available to him at that time. Therefore, this issue has been waived for post-conviction review. Kimble v. State (1983), Ind., 451 N.E.2d 302.

Further, we held in Holland v. State (1976), 265 Ind. 216, 352 N.E.2d 752 that when a defendant is sentenced on both a murder and felony murder charge when only one homicide occurred, the trial court should impose a sentence on the greater offense only. Therefore, we find the trial court did not err in vacating appellant's involuntary manslaughter charge.

Appellant argues that the application of the felony murder rule stated in Ind.Code § 35-13-4-1 and the accessory rule of Ind.Code § 35-41-2-4 was unconstitutional in his case and amounted to fundamental error.

Appellant asserts that as the driver of the getaway car, he neither knew or expected that his accomplice would shoot the victim. Because he was convicted of felony murder without any proof of his mens rea or actus reus, he contends his convictions violate his constitutional rights. He believes his life sentence is manifestly excessive because of his relatively minor role in the robbery and killing and because his sentence is substantially greater than the plea bargain agreement offered to him which he refused and his confederate accepted.

Again, this issue was known to appellant upon direct appeal but not asserted by him. Therefore, this issue was waived. Kimble, supra.

Appellant has not alleged reversible error even if the issue were not waived. Upon the same complaint about the felony murder statute, this Court has held that the intent to kill is not an element of felony murder, and the only intent required to be proven is the intent to commit the underlying felony. Brown v. State (1983), Ind., 448 N.E.2d 10.

Further, the acts of one accomplice are imputed to the others. It is not necessary for an accused to know of each separate action of a confederate which resulted in the offense. Tessely v. State (1978), 267 Ind. 445, 370 N.E.2d 907. Appellant was offered a plea bargain agreement and unlike his accomplice, he turned it down. When one defendant proceeds to trial and his accomplice pleads guilty, their sentences need not be identical. McDonald v. State (1982), Ind., 439 N.E.2d 588.

Considering the above-stated authority, we cannot agree with appellant that his role in the offense and the plea bargain he refused should be considered in determining ...


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