Lash v. State

433 N.E.2d 764, 1982 Ind. LEXIS 792

• Court: Indiana Supreme Court
• Decided: April 13, 1982
• Docket: 382S96
• Status: Published

Opinions

PIVARNIK, Justice.

This case comes to us on a transfer petition from the Court of Appeals, Second District. Defendant-appellant Lash was convicted by a jury on three counts of armed robbery and sentenced to three consecutive ten year terms. On appeal, his conviction was affirmed in Lash v. State, (1977) Ind.App., 367 N.E.2d 10. In this action defendant Lash filed a petition for relief under Ind.R.P.C. 1. Appellant sought post-conviction relief on two grounds: (1) whether robbery from one person of both personal property and property held for a business entity constitutes two offenses of armed robbery; and (2) whether the trial court erred in sentencing him to serve consecutively jury imposed penalties of ten years determinate on each of three counts of armed robbery.

The facts necessary for disposition of these issues appear to be that on September 21, 1975, Lash and two others entered Maria’s Pizza, Inc. They held employees Ruby Lewis and Adean McCollon at gunpoint and took cash register receipts, belonging to Maria’s Pizza, Inc., from Ruby Lewis, personal property from Ruby Lewis, and personal property from Adean McCol-lon. The trial court denied post-conviction relief. On appeal, the Court of Appeals found that since the cash register was in the custody of Ruby Lewis, there could only be one robbery of that employee, even though her personal property was taken along with the cash register receipts. Therefore, the Court of Appeals ordered one conviction for robbery to be set aside. Chief Judge Buchanan dissented from the majority opinion, stating that the finding of guilty on all three counts of robbery was correct. The State of Indiana petitions this court to transfer this case and set aside the judgment of the Court of Appeals. We agree with Chief Judge Buchanan’s analysis and accordingly vacate the opinion of the Court of Appeals found at Ind.App., 414 N.E.2d 338.

This case presents the same set of facts we faced in McKinley v. State, (1980) Ind., 400 N.E.2d 1378, where we affirmed the conviction of two counts of armed robbery under circumstances such as this. In McKinley, the Norwaldo Pharmacy was robbed and both property of the business and personal property of Mr. Steinkeler were taken. Mr. Steinkeler was the sole proprietor of Norwaldo Pharmacy. We held that the robbery of the business, Nor-waldo Pharmacy, constituted one case of armed robbery. The taking of the personal wristwatch and wallet of the store owner constituted another and separate robbery. The same is also true of Hatcher v. State, (1980) Ind., 410 N.E.2d 1187. There defendant took the personal funds and the wristwatch of Virgil Kellermeyer, a store employee, and the personal funds of Bernard Goldman, the owner. His accomplice took funds of the clothing store from its custodian, Grace Nooe. We found that three robberies occurred with three victims, Kel-lermeyer, Goldman, and the business establishment. These holdings are consistent with our opinion in Williams v. State, (1979) Ind., 395 N.E.2d 239, where we held that an individual who robs a business establishment and takes that business’ money from four employees could be convicted of only one count of robbery. Rogers v. State, (1979) Ind., 396 N.E.2d 348; compare Young v. State, (1980) Ind., 409 N.E.2d 579; Ferguson v. State, (1980) Ind., 405 N.E.2d 902.

II.

We find the Court of Appeals was correct in its analysis of this issue and we adopt its language in this opinion as follows:

“Lash contends it was an abuse of discretion for the trial judge to order the jury imposed penalties of ten years on each count of armed robbery to run consecutively. We find no abuse of discretion.

In a post-conviction proceeding, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Walker v. State, (1978) 267 Ind. 649, 372 N.E.2d 739. We will reverse only where the evidence is without conflict and leads unerringly to but one conclusion and the trial court has reached an opposite conclusion. Rinard v. State, (1979) Ind., 394 N.E.2d 160.

IC 35-12-1-1 (Burns Code Ed. 1975) sets out the penalty provisions applicable to the offense of armed robbery. It provides in pertinent part:

‘The penalty imposed by this chapter [section] is to be fixed by the court or jury trying the case, which sentence the court shall not have the power to suspend: Provided, That such court shall have the right to provide in the judgment that such term of imprisonment shall not run concurrently with any imprisonment that may be adjudged for any additional crimes being attempted or committed at the same time but that such term of imprisonment shall commence at the expiration of the imprisonment adjudged for any such additional crimes.’

The statute authorized the judge to order the imposed penalties to run consecutively. This authority imposed in the trial judge does not usurp the power of the fact finder to set the penalty for each offense, as Lash would argue, but only affects how the penalties will be served.

Lash also suggests that the sentencing hearing provided for in IC 35-4.1-4-3 (Burns Code Ed., Supp.1979), now transferred to 35-50-1A-3 (Burns Code Ed., Repl.1980), sets the appropriate standard for sentencing and apparently thereby urges the judge’s failure to hold a sentencing hearing constitutes an abuse of discretion. At the time of Lash’s sentencing, a hearing was not required by statute. The record shows a presentence investigation report was filed and considered by the court prior to sentencing. We find the trial judge acted within the statutory mandates relevant to that time frame and did not abuse the discretion vested in him in ordering consecutive sentences.

Lash’s final two contentions, that the judge’s imposition of consecutive sentences (1) constitutes cruel and unusual punishment and (2) violates the defendant’s constitutional right to a jury trial are without merit. As stated in Gray v. State, (1974) 159 Ind.App. 200, 205, 305 N.E.2d 886, 889, ‘the constitutional prohibition against cruel and unusual punishment is a limitation upon the acts of the General Assembly and not upon the discretion of the trial court acting within the framework of a statute imposing penalties for the offense.’ Since the consecutive sentencing imposed was within statutory limits, Lash cannot hinge his challenge to the judge’s use of discretion on a “cruel and unusual punishment” argument. Secondly, the constitutionality of court-imposed sentencing as opposed to jury-imposed has been upheld. Wells v. State, (1979) Ind.App., 397 N.E.2d 1250.”

Finding no reversible error, we affirm the trial court. Transfer is granted and the opinions of the Court of Appeals are vacated.

GIVAN, C. J., concurs. DeBRULER, J., concurs with separate opinion. PRENTICE, J., dissents with opinion in which HUNTER, J., concurs.