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Powers v. State

Court of Appeals of Indiana

February 26, 2014

DENNIS POWERS, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE PARKE CIRCUIT COURT. The Honorable Sam A. Swaim, Judge. Cause No. 61C01-9309-CF-107.

DENNIS POWERS, APPELLANT, Pro se, Michigan City, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana.

BROWN, Judge. ROBB, J., and BARNES, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Dennis Powers, pro se, appeals the trial court's denial of his motion to correct erroneous sentence. Powers raises two issues which we consolidate and restate as whether the trial court erred by denying his motion to correct erroneous sentence. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 24, 1994, the court sentenced Powers to twenty years for escape resulting in bodily injury as a class B felony and a consecutive sentence of fifty years for kidnapping as a class A felony. Powers pursued a direct appeal, and this court affirmed his convictions and sentence. Powers also pursued post-conviction relief, and the post-conviction court denied relief. Powers pursued an appeal of the denial of his petition for post-conviction relief, and this court affirmed the post-conviction court's judgment.

On May 23, 2013, Powers filed a motion to correct erroneous sentence. Powers alleged that his sentence was erroneous on the basis that the sentence imposed on the escape with bodily injury conviction and the kidnapping conviction constitute double jeopardy. Specifically, Powers alleged that " [t]he record clearly illustrates that the sentence was erroneous in that the same act of beating Mr. Newton is used to prove both the bodily injury element of the escape and the elements of the kidnapping." Appellant's Appendix at 4.

On June 7, 2013, the State filed its response to Powers's motion to correct erroneous sentence and argued that the bodily injury element was not used to prove both crimes because while the bodily injury element raised the escape charge to a class B felony, the kidnapping statute in 1993 was a class A felony regardless of whether or not there was any injury.

On June 20, 2013, Powers filed a reply to the State's response in which he asserted that he was not arguing that the bodily injury was used to prove the elements of kidnapping, but that the act of beating Newton was used to prove both the bodily injury enhancement of the escape and the elements ...


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