APPELLANT PRO SE                      ATTORNEYS FOR APPELLEE                  ATTORNEYS FOR AMICUS
Bryant E. Wilson                      Gregory F. Zoeller                      CURIAE STATE PUBLIC
New Castle, Indiana                   Attorney General of Indiana             DEFENDER
                                                                              Stephen T. Owens
                                      Katherine Modesitt Cooper               Public Defender of Indiana
                                      Deputy Attorney General
                                      Indianapolis, Indiana                   James T. Acklin
                                                                              Indianapolis, Indiana

                                                                              ATTORNEY FOR AMICUS CURIAE
                                                                              AMICUS PROFESSORS
                                                                              John D. Cowan
                                                                              Fort Wayne, Indiana




                                               In the
                            Indiana Supreme Court                                       Apr 01 2014, 10:38 am


                                       No. 27S02-1309-CR-584

BRYANT E. WILSON,
                                                                    Appellant (Defendant below),

                                                    v.

STATE OF INDIANA,
                                                                    Appellee (Plaintiff below).


                      Appeal from the Grant Circuit Court, No. 27C01-1006-FC-160
                                 The Honorable Mark E. Spitzer, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 27A02-1212-CR-1012



                                             April 1, 2014

David, Justice.
       When a defendant is convicted for multiple crimes arising out of a single course of
criminal conduct, Indiana’s sentencing statutes provide trial courts with some discretion in
ordering the individual sentences for those crimes to run consecutively or concurrently. Here, a
defendant’s aggregate sentence was imposed in such a way that one of the individual sentences
was effectively a hybrid—it was ordered partially concurrent to the other sentences, and partially
consecutive.


       Is this form of sentence permissible?         Because trial courts are limited to sentences
authorized by statute, and because the relevant provisions of the Indiana Code here do not
authorize such a hybrid sentence, the answer must be “no.” We therefore remand this case to the
trial court for resentencing.




                                  Facts and Procedural History


       In 1995, a jury found Bryant Wilson guilty of rape as a class A felony, criminal deviate
conduct as a class A felony, and armed robbery as a class B felony. The trial court sentenced
him to forty-five years for each of the class A felony convictions and twenty years for the class B
felony conviction. The forty-five-year sentences were ordered to be served concurrent to one
another, but the twenty-year sentence was split: fifteen years were to be served concurrent with
the forty-five-year sentences, and five years were to be served consecutive to them. The result
was an aggregate sentence of fifty years.


       In 2012, after over a decade of unsuccessfully pursuing relief through a direct appeal, a
petition for post-conviction relief, a petition for a writ of habeas corpus, and a motion for
sentence modification, Wilson filed a pro se verified motion to correct erroneous sentence. He
claimed that the trial court’s sentencing order effectively held the final five years of his sentence
for robbery in abeyance, without the statutory authority to do so. As a consequence, he argued
that he was entitled to correction of his sentence. The State filed an objection to his motion.




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          The trial court concluded that Wilson’s aggregate sentence—in spite of its inclusion of a
partially consecutive sentence—was not greater than the presumptive sentence for a felony one
class higher than the most serious felony for which Wilson was convicted. It therefore denied
Wilson’s motion.


          Wilson appealed, and the Court of Appeals affirmed in a split opinion. Wilson v. State,
988 N.E.2d 1221 (Ind. Ct. App. 2013).                The majority found that no statutory provisions
prohibited the imposition of a partially consecutive sentence like the one Wilson received, and
that the case law indicated a split in the Court of Appeals as to whether such sentences are
permissible. Id. at 1223–24. Chief Judge Robb dissented, believing instead that trial courts may
only impose sentences that are authorized by statute, as opposed to only being limited to
sentences that are not prohibited by statute. Id. at 1224–25 (Robb, C.J., dissenting).


          We granted transfer, thereby vacating the Court of Appeals opinion. Wilson v. State, 993
N.E.2d 625 (Ind. 2013) (table); Ind. Appellate Rule 58(A). We did not hold oral argument, but
to supplement Wilson’s pro se brief we requested additional briefing from the Public Defender of
Indiana and other interested parties as to whether the imposition of a partially consecutive
sentence is permissible. We thank the Public Defender of Indiana, and Professors Charles
MacLean, James Berles, and Adam Lamparello (collectively, “the Amicus Professors”) of the
Indiana Tech Law School in Fort Wayne, for responding and providing their additional insights. 1




                   Partially Consecutive Sentences Are Not Authorized By Statute


          Chief Judge Robb was correct when she said that “sentencing is a creature of the
legislature and [] we are limited to sentences that have been expressly permitted by the




1
    The State also filed a supplemental brief in response to our request.



                                                        3
legislature.” Wilson, 988 N.E.2d at 1224. “[C]ourts are limited to imposing sentences that are
authorized by statute, rather than only being limited to sentences that are not prohibited by
statute.” Id.


       This view reflects our traditional approach to sentencing. See, e.g., Laux v. State, 821
N.E.2d 816, 819 (Ind. 2005) (sentencing statutes for murder and burglary “do not authorize
imposition of a no-contact order as part of an executed sentence”); Douglas v. State, 464 N.E.2d
318, 320 (Ind. 1984) (“While the judge is vested with broad discretion in sentencing, he must act
within statutorily prescribed limits.”); Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)
(“a trial court’s sentencing authority is only that which is conferred by the legislature, and it does
not possess the power to impose sentences beyond the statutorily prescribed parameters”);
Barnett v. State, 414 N.E.2d 965, 966 (Ind. Ct. App. 1981) (“The imposition of restitution is not
within the sentencing statute. Therefore, the judge was without the power to impose restitution
as part of the sentence and its imposition was a nullity.”); see also Ind. Code § 1-1-2-2 (2005)
(“Crimes shall be defined and punishment therefor fixed by statutes of this state and not
otherwise.”); Ind. Code § 35-38-1-30 (2008) (now authorizing trial judges to impose no-contact
orders as part of executed sentence). The trial judge’s sentencing discretion lies within the
bounds that society—by way of its elected legislature—has placed as the minimum, maximum,
and general nature of penalties for behavior that society wishes to prohibit. And these bounds
are given shape and form in our criminal sentencing statutes.


       The State Public Defender said it well: “[t]here is value to predictability and consistency
in the law.” (Public Defender’s Br. at 6.) So this view also reflects a consideration of both our
traditional views of due process and the deterrent effect that criminal sentencing attempts to
serve. Because if defendants do not know the full range of penalties to which they will be
subjected should they choose to commit a crime, then it cannot be said that their decision to act
was fairly informed by the knowledge that it would be punishable to a certain degree—and that
knowledge is likewise unavailable to deter them from acting at all.




                                                  4
        The question then becomes whether the statute under which Wilson was sentenced
authorized the trial judge to impose a partially consecutive sentence.             Wilson, the Public
Defender of Indiana, the Amicus Professors, and now the State all agree that it did not—nor does
it now. We agree as well. Cf. Hull v. State, 799 N.E.2d 1178, 1182 (Ind. Ct. App. 2003)
(reversing partially consecutive sentences for multiple murder convictions as not authorized by
statute).


        The statute in question provides that “the court shall determine whether terms of
imprisonment shall be served concurrently or consecutively,” except in certain enumerated
exceptions. Ind. Code § 35-50-1-2(c) (Supp. 2013). 2 We agree with the State’s reading of this
provision, in that “the plain language of the statute contemplates only consecutive or concurrent
terms, not a hybrid of both, for a sentence on one count.” (State’s Supp. Br. at 6.) And as the
Amicus Professors point out, the concepts of “partially consecutive,” “hybrid,” or “blended”
sentences do not arise in any sentencing provision of the Indiana Code. In other words, the
Indiana Code grants the trial court discretion to determine, subject to certain qualifications,
whether sentences are served consecutively or concurrently; but nothing in our statutory
sentencing scheme grants a trial court authority to split a sentence into a partially concurrent
sentence, with the remainder to be served consecutive.


        Indeed, reading the statute to permit such a hybrid sentence would present dangers of
absurd and complicated circumstances unfair to the defendant, the courts, and society—a result
surely not desired by the General Assembly. See Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000)




2
  Those exceptions include when a person is arrested for one crime and then commits another crime
before being released from the sentence for the first, in which case the second sentence shall be served
consecutively, Ind. Code § 35-50-1-2(d), and if a person uses a firearm in commission of the offense, the
separate crime of using a firearm to commit a crime requires a consecutive sentence, Ind. Code § 35-50-1-
2(e). The pertinent part of this statute—that the court shall determine whether sentences are served
concurrently or consecutively—was in effect at the time Wilson committed his crimes in 1995. See Ind.
Code § 35-50-1-2 (Supp. 1994).



                                                   5
(“The legislature is presumed to have intended the language used in the statute to be applied
logically and not to bring about an unjust or absurd result.”). As the Court of Appeals pointed
out in Hull,


                [t]o conclude otherwise could lead to some rather complicated
                scenarios. For instance, if Hull’s sentence on Count I was
                overturned for some reason, would he be free for ten years before
                having to report to the Department of Correction to begin serving
                his sentence on Count II? Would he need to be monitored during
                the ten year hiatus? What if he committed another crime during
                those ten years? Could he request that he begin serving his
                sentence immediately rather than having it hanging over him for a
                decade?

Hull, 799 N.E.2d at 1182 n.1. We therefore expressly hold that absent specific authorization by
the General Assembly not found in the current statutory scheme, trial courts may not impose
partially consecutive, hybrid, or blended sentences for multiple convictions. They may impose
consecutive sentences or concurrent sentences within the bounds of the statutory provisions—
and may impose some sentences as consecutive and some as concurrent in a single sentencing
order—but may not split a conviction’s sentence such that a portion of it is served consecutive to
other sentences and a portion served concurrent. 3




3
  The Amicus Professors argue that there are only two possible sentencing alternatives coming out of this
statute—all sentences served concurrently, or all served consecutively. By way of example, their
proposed remedy here is based on the notion that Wilson’s three sentences must either all be served
concurrently (for an aggregate of forty-five years) or all served consecutively (for an aggregate of 110
years).

         They cite no authority for this view on our sentencing scheme, and we agree with the State that
this is not the law. It is a relatively common practice for courts in this state to fashion an aggregate
sentence involving three or more convictions so that some sentences are served concurrently and others
served consecutively—particularly when two or more of the convictions are for the same offense—and
we think that comports with the language of the statute. For example, a defendant sentenced to two
counts of Crime A and two counts of Crime B could be sentenced to the same terms of imprisonment for
each count of Crime A, to be served concurrently to each other, and the same terms for each count of


                                                   6
       Wilson’s sentence was therefore in violation of the trial court’s statutory authority and he
is entitled to relief in the form of resentencing. See Ind. Code § 35-38-1-15 (2008) (erroneous
sentence does not render sentence void, but it shall be corrected); Dragon v. State, 774 N.E.2d
103, 108–09 (Ind. Ct. App. 2002) (sentence imposed without statutory authority facially
defective and defendant entitled to resentencing under Ind. Code § 35-38-1-15). And when a
trial court is ordered to resentence a defendant, it cannot impose a more severe penalty than
originally imposed “unless the court includes in the record of the sentencing hearing a statement
of the court’s reasons for selecting the sentence that it imposes which includes reliance upon
identifiable conduct on the part of the petitioner that occurred after the imposition of the original
sentence.” Ind. Post-Conviction Rule 1(10)(b); Hicks v. State, 729 N.E.2d 144, 146 (Ind. 2000)
(affirming resentencing to forty years for murder plus twenty-year enhancement, when original
sentence of fifty years plus ten-year enhancement was imposed pursuant to wrong sentencing
statute). This rule applies with equal force here, though Wilson’s motion to correct an erroneous
sentence did not arise in the context of a post-conviction relief case. 4


       The parties nevertheless disagree as to the scope of Wilson’s new sentence. Wilson
argues that his three sentences should be viewed as having been served entirely concurrent to one
another; which means his fifteen-year sentence for armed robbery has by now been fully
executed. The Amicus Professors, as we said, argue that Wilson must be resentenced to a fully
concurrent forty-five years in prison as the only other alternative is a 110-year, fully consecutive
sentence—and that would impermissibly exceed his original sentence. But the State argues that




Crime B, to be served concurrently to each other; but the terms for Crime(s) A and Crime(s) B could be
served consecutively—assuming the statutory requirements are met for imposing consecutive terms—
making the defendant’s aggregate sentence the sum of the sentences for Crime(s) A and Crime(s) B.

        The operative question we faced today was whether that same language would allow a single
sentence to be split into both concurrent and consecutive forms. It does not.
4
 See Wright v. State, 836 N.E.2d 283, 293 n.8 (Ind. Ct. App. 2005) (“We are aware this case is not a
post-conviction relief case. However, neither was Hicks.”) r’hing granted, trans. denied.



                                                   7
Wilson’s challenge to his sentence is a challenge to the imposition of a partially executed portion
of the sentence—not a challenge to the trial court’s authority to impose an aggregate sentence of
fifty years—and therefore that remains the maximum penalty Wilson may face. 5


        We agree with the State. At the time Wilson was originally sentenced, the Indiana Code
provided for a twenty-five-year fixed term for a class A felony conviction, with no more than ten
years deducted for mitigating circumstances and no more than twenty years added to enhance the
sentence for aggravating factors. Ind. Code § 35-50-2-4 (Supp. 1994). The penalty range for a
class B felony was from six to twenty years, with a fixed term of ten years. Ind. Code § 35-50-2-
5 (1993). The law also provided that when a defendant was sentenced to consecutive terms of
imprisonment for multiple convictions arising out of a single course of conduct, the total of those
terms could not exceed the presumptive sentence for a felony one class higher than the highest
class of felony for which the defendant was convicted. Ind. Code § 35-50-1-2(a) (Supp. 1994).
And at the time he was sentenced, the presumptive sentence for the next higher class of felony—
murder—was fifty years. Ind. Code § 35-50-2-3(a) (Supp. 1994). 6 Thus, when Wilson was




5
  The Public Defender of Indiana’s amicus brief was specifically aimed at the question we posed when we
invited additional briefing—whether the imposition of a partially executed sentence was proper—and
therefore did not extend to the nature of Wilson’s remedy.
6
  This provision was amended twice in 1994, within the span of a few weeks. The first amendment
changed the presumptive sentence for murder from forty to fifty years; the second excluded mentally
retarded defendants from death penalty and life without parole consideration, but failed to incorporate the
change from the first amendment. See Smith v. State, 675 N.E.2d 693, 695–96 (Ind. 1996). There were
therefore two presumptive sentences for murder in the Indiana Code until the General Assembly corrected
the problem in May 1995. Id. at 695 n.3. Construing the statutory amendments against the State, we
concluded that until the 1995 amendment the presumptive sentence for murder remained forty years. Id.
at 697.

        Nevertheless, Wilson does not now argue that the forty-year presumptive sentence for murder—
which was in effect when he committed his crimes of rape, criminal deviate conduct, and robbery—
should have applied to cap his consecutive sentences when he was sentenced in 1995. In fact, he appears
to have advocated for the fifty-year cap at his own sentencing. And now he argues for a maximum
sentence of forty-five years, but only because he contends that his sentence for robbery is now fully
executed.



                                                    8
sentenced the trial court could not impose consecutive sentences in a way that made his
aggregate sentence greater than fifty years—and its sentence complied with this requirement.


       It seems apparent that Wilson’s original sentencing court intended to give Wilson the
maximum sentence possible.         So it imposed the maximum penalties for each individual
conviction, and in support cited a number of aggravating factors, including Wilson’s prior
felonies and the fact that he was on parole when he committed the offenses at issue here. It then
tried to arrange those individual sentences in a way that also maximized Wilson’s aggregate
sentence. But in trying to accomplish this last step, it erred.


       There are a number of ways that Wilson’s aggregate sentence of fifty years can be
effectuated by the trial court on remand, if it is merited. Imposing a partially consecutive
sentence for one of the individual convictions is not one of them.




                                             Conclusion


       We reverse the trial court’s denial of Wilson’s motion to correct erroneous sentence, and
remand so that he may be resentenced for his rape, criminal deviate conduct, and armed robbery
convictions. In doing so, the trial court may not exceed the aggregate term of fifty years that
Wilson received in his original sentence.


Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.




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