McCormick v. State , 262 Ind. 303 ( 1974 )

315 N.E.2d 360 (1974)

Gerald Dale McCormick, Appellant,
v.
STATE of Indiana, Appellee.

No. 373S51.

Supreme Court of Indiana.

August 22, 1974.

Harriette Bailey Conn, Public Defender, John R. Gerbracht, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

This consolidated appeal is from the denial of two (2) Petitions for Post-Conviction Relief and the subsequent overruling of Motions to Correct Errors. Our disposition of the direct appeal of this case, McCormick v. State, (1971) 256 Ind. 78, 267 N.E.2d 78, contains a narrative of the events leading to the Appellant's incarceration. For the purposes of this appeal it is sufficient to relate that at a trial, without the intervention of a jury Appellant was convicted and sentenced as follows: Life in the Indiana State Prison for Rape; an indeterminate period of two (2)-twenty-one (21) years in the Indiana Prison for Assault and Battery with Intent to Gratify Sexual Desire; Life in the Indiana State Prison as an Habitual Criminal.

Appellant raises three issues at this time. First, he contends that since Assault and Battery with Intent to Gratify Sexual Desire is a lesser included offense in the charge of Rape it was error for him to be convicted and sentenced separately for each of these two crimes which arose out of one occurrence. The State concedes this point. We have recognized that even the entry of judgment is additional punishment. Thompson v. State, (1973) Ind., 290 N.E.2d 724. However, when there has been an erroneous duplication in sentencing by the trial court, the higher sentence stands and the lesser is vacated. Woods v. State, (1955) 234 Ind. 598, 130 N.E.2d 139, and cases cited therein. Therefore, the trial court is directed to vacate both the judgment and the sentence imposed for the charge of Assault and Battery with Intent to Gratify Sexual Desire.

Appellant's second issue was that the imposition, under Count II of the indictment, of a sentence for Assault and Battery with Intent to Gratify Sexual Desire and the imposition also under Count II of a Life Sentence as an Habitual Criminal represents double punishment for a single offense arising from one event. Appellant's suggestion is that the Assault and Battery sentence be vacated. Since we have ordered that this judgment and sentence be vacated for the reasons given above, this second issue is moot. However, we wish to make clear that the sentence for Life as an Habitual Criminal remains in effect. Appellant was convicted of Rape. It was proved that he had been "previously twice convicted, sentenced and imprisoned in some penal institution" for felonies. Appellant, accordingly, was sentenced for the Rape and as an Habitual Criminal. IC 1971, 35-8-8-2 [Burns' Ind. Stat. Ann. § 9-2208 (1956 Repl.)]. This sentencing procedure was proper.

In United States ex rel. Smith v. Dowd, (1959) 271 F.2d 292, 295 (7th Cir.) the Court stated:

"It is recognized that Sec. 9-2208 is part of the plan employed by Indiana for the purpose of assuring enhanced punishment of persistent offenders and utilizes and requires the imposition of separate and distinct sentences, one imposing the normal penalty prescribed by law for the particular offense involved and the other imposing a further penalty of life imprisonment. Goodman v. Kunkle, 7 Cir., 72 F.2d 334; Metzger v. State, 214 Ind. 113, 13 N.E.2d 519; Witte v. State, 228 Ind. 153, 90 N.E.2d 802; Witte v. Dowd, 230 Ind. 485, 102 N.E.2d 630, certiorari denied 344 U.S. 841, 73 S. Ct. 54, 97 L. Ed. 654." (Emphasis added)

Appellant's final contention is that the Habitual Criminal Conviction should be reversed because the indictment itself listed the prior felonies on which the operation of the Habitual Criminal Act would depend. That is, the fact-finder, the judge in this case, was aware of the prior convictions as he deliberated on the truth of the allegations against the defendant. Appellant relies on Lawrence v. State, (1972) Ind., 286 N.E.2d 830. In that case we held that it was unduly and unnecessarily prejudicial to a criminal defendant on trial for a felony to have a jury informed of prior felony convictions which are not relevant to some issue of the principal charge but which are necessary to establish the elements of the Habitual Criminal Statute. In order to avoid this kind of situation we adopted a procedure that allowed the jury to decide first the felony charge and then, if a conviction resulted, to be informed of the prior felony convictions and instructed to decide on the applicability of the Habitual Criminal Statute.

However, the Lawrence case involved a jury trial and the case before us was tried by the Court without the intervention of a jury. We think the Lawrence procedure should be limited to jury trials. A felony defendant will be aware that he is also being charged as an Habitual Criminal. It would be unrealistic to attempt to keep this information from a trial judge. If the defendant wishes to have a fact-finder who is unaware of his prior felony convictions, he need only assert his right to a jury trial. Furthermore, in bench trials trial judges are frequently required to disregard certain incriminating but inadmissible information which comes to their attention before they deliberate on the question of the defendant's guilt or innocence. The assumption is that the special training and experience of trial judges gives them the ability to set aside this type of evidence. In the same sense, we think that a trial judge can be aware of prior felony convictions and not be thereby prejudiced as he deliberates upon the evidence of a current felony charge.

The trial court is directed to alter its judgment and sentence in conformity with this opinion.

All Justices concur.