FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

BRENT WESTERFELD                             GREGORY F. ZOELLER
Indianapolis, Indiana                        Attorney General of Indiana

                                             STEPHEN R. CREASON
                                             Deputy Attorney General

                                                                              FILED
                                             Indianapolis, Indiana

                                                                           Apr 03 2012, 8:56 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




WILLIAM MINNICK,                             )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 47A05-1108-CR-448
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE LAWRENCE CIRCUIT COURT
                       The Honorable Andrea K. McCord, Judge
                            Cause No. 47C01-8507-CF-39


                                   April 3, 2012

                            OPINION - FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant William Minnick appeals from the sentence imposed

following his convictions for Murder,1 a felony, Class A felony Robbery,2 and Class A

felony Rape.3 Minnick contends that the trial court erred in imposing sentences for his

robbery and rape convictions, that his convictions for Class A felony robbery and murder

violate prohibitions against double jeopardy, and that the trial court abused its discretion

in refusing to order an additional competency evaluation before sentencing him. We

affirm in part and reverse and remand in part with instructions.

                          FACTS AND PROCEDURAL HISTORY

       The facts underlying Minnick’s convictions were related by the Indiana Supreme

Court in Minnick v. State, 544 N.E.2d 471 (Ind. 1989):

       On the afternoon of October 26, 1981, James D. Payne returned from work
       to his home in Greencastle, Indiana. He discovered his wife’s body on the
       bedroom floor. He immediately called police. The ensuing investigation
       revealed Martha Payne had been raped, anally sodomized, stabbed in the
       right rear shoulder, and struck on the head with a table lamp. In addition,
       ligature marks on her neck indicated she had been strangled, and burn
       marks on her ankles showed the perpetrator had attempted to electrocute
       her as well. The cause of death was determined to be the knife wound in
       her upper back, which penetrated her lung and severed her pulmonary
       artery.
               That night Sergeant Rodney Cline became aware that a ―Dukes of
       Hazzard‖-type car had been observed parked in a college fraternity’s lot
       near the victim’s home around the time of her death. Cline confirmed the
       driver’s description matched that of appellant, who had spoken to Cline
       outside the victim’s house that afternoon to apologize for a dispute the two
       had engaged in a week earlier concerning the involuntary towing of
       appellant’s distinctive orange Dodge Charger.
               Appellant was subsequently arrested and search warrants were
       obtained for his car and for specimens of his blood and hair for comparison

       1
           Ind. Code § 35-42-1-1 (1981).
       2
           Ind. Code § 35-42-5-1 (1981).
       3
           Ind. Code § 35-42-4-1 (1981).

                                             2
       with samples taken at the crime scene. A strand of hair found adhering to a
       length of electrical wire in appellant’s car was determined to be of common
       origin with hair samples taken from the victim. Laboratory tests revealed
       the victim’s blood was type B and matched blood specimens found on a
       broken table lamp and kitchen knife found at the crime scene. Semen
       specimens recovered from the carpet underneath the victim turned out to be
       from two separate donors: one a type O secretor, i.e., one who secretes the
       antigens used in typing blood in other body fluids, and the other a non-
       secretor of unknown type. The victim’s husband and appellant were each
       determined to have type O blood—the husband a secretor, appellant a non-
       secretor. Thus appellant was neither positively identified nor definitively
       ruled out as a donor of the semen found under the victim’s body.
               Appellant’s alibi witnesses testified as to his whereabouts at various
       times the afternoon of the murder. Due to technical oversights following
       discovery of the victim’s body, however, authorities were unable to pin
       down her time of death with any precision. Appellant admitted to Sergeant
       Cline that he had been in the victim’s home that afternoon to see about
       doing some remodeling work for the Paynes. In addition, two witnesses
       testified at trial that appellant had made inculpatory admissions relating
       certain details of the murder while incarcerated.

Id. at 473-74. On October 29, 1981, the State charged Minnick with murder, Class A

felony robbery, Class A felony rape, and criminal deviate conduct. On September 18,

1985, a jury found Minnick guilty of murder, robbery, and rape. On October 16, 1985,

the trial court sentenced Minnick to death for his murder but did not impose separate

sentences for robbery or rape. During sentencing, the trial court did not mention a reason

for not imposing sentences for Minnick’s robbery or rape convictions and Minnick did

not object to his not being sentenced for them.

       On December 1, 2004, the post-conviction court set aside Minnick’s death

sentence and ordered resentencing and also determined that he was incompetent, having

been previously found to be so by the United States District Court. On March 7, 2011,




                                             3
the Indiana Department of Mental Health sent certification to the trial court that Minnick

was competent.

      On August 23, 2011, the trial court held a new sentencing hearing.                 At the

beginning of the hearing, the following exchange took place:

              [Minnick’s Counsel]: Very reluctantly I would ask the Court to have
      Mr. Minnick examined for competency. Mr. Minnick, as the Court is
      aware, has a very very long history of suffering from paranoid
      schizophrenia. He was diagnosed with that in his post conviction
      proceedings several years ago. He was determined to be incompetent in
      Federal Court and a Guardian was appointed for him. He had indeed been
      largely incompetent for the last ten (10) years. While I had (indiscernible)
      that Mr. Minnick had been restored to competency, upon speaking with him
      today it’s very clear to me that he is not at this point competent, he is not at
      this point able to assist his counsel. Ms. Youngcourt is here at my request
      because she represented Mr. Minnick in post conviction. We both believe
      that a further competency determination is required at this point and I won’t
      say much further about that other than I would refer the Court to a Pre-
      Sentence Investigation Report, which I think gave us some sense that this
      may have been coming. In that report it indicates that the probation officer
      requested a statement from Mr. Minnick and at that point he went into a
      soliloquy that lasted approximately three and a half (3 ½) hours. Regarding
      some of the same things the Court is aware of, the problems that we’ve had
      with Mr. Minnick’s mental illness through the years, for those reasons I
      would ask that the Court admit him under the statute for a competency
      determination and that we delay these proceedings.
              COURT: [Prosecutor], do you have a response?
              [Prosecutor]: Yes. The State would object, Your Honor. The
      Department of Mental Health found him competent, I think, in early March.
      There’s been no expert testimony about that since. We think that the thing
      to [do] today is go ahead and present evidence and see how this proceeds.
              COURT: I do trust defense counsel’s evaluation of Mr. Minnick
      because they have worked with him over the years. How I would like to
      proceed however is that the Department of Mental Health has found Mr.
      Minnick recently to be competent to assist counsel and Mr. Minnick to help
      your attorney in today’s hearing, I’d like to at least try to get through this
      hearing. If at some point you want to revisit this issue, re-raise it, let me
      know that he’s not able to assist you or discuss with you what’s happening
      in the courtroom, at any point in the hearing you may re-raise it. I think the
      Court will note your request for the record. I would like the State to go

                                             4
       ahead and proceed and we’ll see how we go and how Mr. Minnick can aid
       you at this point. I do understand he has that history, the Court also
       understands you have requested the Court consider that as a mitigating
       factor and that will clearly come up later in the hearing we will just see how
       we go as the hearing proceeds and how Mr. Minnick is able to help you,
       we’ll see how we do.

Tr. pp. 3-4.

       Following the presentation of evidence, the trial court stated the following on the

record:

       COURT:        I first want to note for the record regarding the original issue
                     of competency that was raised by Defense, I’ve been
                     observing Mr. Minnick during this proceeding. He’s sat
                     calmly, he has aided counsel, asked questions, I believe that
                     his allocution statement was very clear and concise. He made
                     points to the court that I believe were appropriate. I have no
                     reason to believe he wasn’t competent to aid Counsel in this
                     hearing, so any concerns had or requests raised regarding that
                     I am going to deny. I think that he was competent for this
                     hearing and appropriately aided counsel in his defense. I
                     want to make that statement for the record.

Tr. p. 64. The trial court sentenced Minnick to sixty years of incarceration for murder,

fifty years for robbery, and fifty years for rape, all sentences to run consecutively. For

purposes of imposing enhanced sentences, the trial court found, as aggravating

circumstances, Minnick’s criminal record, his escape from jail after his arrest, and that

Payne was killed in her home. The trial court found Minnick’s mental illness to be a

mitigating circumstance. In justifying the imposition of consecutive sentences, the trial

court also found it to be aggravating that the injury, loss, or damage suffered by Payne

was greater than required to prove the crimes charged.

                            DISCUSSION AND DECISION


                                             5
  I. Whether the Trial Court Erred in Imposing Sentences for Robbery and Rape

                          A. Indiana Code Section 35-4.1-4-2

      In 1981, Indiana Code section 35-4.1-4-2 (and now its successor statute, section

35-38-1-2) required that a trial court sentence within thirty days of the entry of

conviction. Minnick was not sentenced for his robbery or rape convictions for over

twenty-five years following his convictions. As the Indiana Supreme Court has held,

however, ―trial courts are excused from exact compliance with the thirty-day sentencing

requirement where there is good cause for delay and that such cause may be presumed

where the record is silent as to the reason for the delay and the defendant made no

objection.‖ McElroy v. State, 553 N.E.2d 835, 840 (Ind. 1990) (citing Kindred v. State,

524 N.E.2d 279, 302 (Ind. 1988)). Here, there was no objection and the trial court gave

no reason for not sentencing Minnick for rape or robbery. Pursuant to McElroy, we will

presume good cause, thereby excusing the trial court from adherence to the thirty-day

requirement.

      Even if we had concluded that the trial court committed error in this regard, it

could only have been considered harmless. The rationale for the rule that a defendant is

entitled to have his sentence pronounced with reasonable promptness, as stated by the

Indiana Supreme Court, is that ―[a]n American citizen is entitled to live without a

Damocles sword dangling over his head.‖ Taylor v. State, 233 Ind. 398, 402, 120 N.E.2d

165, 167 (1954). This rationale has no application here, though, because Minnick spent

the entire delay period incarcerated, most of it under a sentence of death. This was not a

case where Minnick was a free man unable to live his life, plan for the future, or

                                            6
otherwise find repose due to the looming threat of incarceration. It is hard to imagine,

and Minnick does not claim, that while sitting on death row he was ever troubled by the

fact that he had never been sentenced for rape and robbery but someday might be.

                            B. Right to Speedy Sentencing

      Minnick also contends that his constitutional right to speedy sentencing was

violated by the delay. The Sixth Amendment to the United States Constitution provides,

inter alia, that ―[i]n all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial[.]‖ U.S. CONST. amend. VI. As with the Seventh Circuit Court of

Appeals, we shall assume, without deciding, that the Sixth Amendment right to speedy

trial applies to sentencing. See U.S. v. Rothrock, 20 F.3d 709, 711 (7th Cir. 1994). Also

like the Seventh Circuit, we will analyze the question using the considerations described

in Barker v. Wingo, 470 U.S. 514 (1972):

             The right to a speedy trial is a vague concept, incapable of precise
      evaluation. Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33
      L.Ed.2d 101 (1972). In determining whether the right has been violated,
      we start by examining the length of delay; ―[u]ntil there is some delay
      which is presumptively prejudicial, there is no necessity for inquiry into the
      other factors that go into the balance…. [T]he length of delay that will
      provoke such an inquiry is necessarily dependent upon the peculiar
      circumstances of the case.‖ Id. at 530-31, 92 S.Ct. at 2192. (footnote
      omitted). Once a sufficient delay has been identified, the reason for the
      delay must be examined and the defendant’s assertion of the right is
      considered. Id. at 531, 92 S.Ct. at 2192. Finally, we determine whether the
      defendant has been prejudiced. Prejudice is gauged by considering the
      interests the right is designed to protect: ―(i) to prevent oppressive pretrial
      incarceration; (ii) to minimize anxiety and concern of the accused; and (iii)
      to limit the possibility that defense will be impaired.‖ Id. at 532, 92 S.Ct. at
      2193 (footnote omitted).

Rothrock, 20 F.3d at 711-12.


                                             7
       Under the admittedly unusual circumstances of this case, we cannot conclude that

even the twenty-five-year delay in sentencing violated Minnick’s right to speedy

sentencing. While the delay was quite lengthy, there is no indication in the record that it

was the result of any objectionable actions by the State or trial court, and Minnick never

asserted his right to be sentenced at the time or at any time before his death sentence was

vacated and resentencing ordered in 2004.

       Most importantly, however, there is no indication that Minnick was unfairly

prejudiced by the delay.         Minnick argues that what occurred here is equivalent to

arbitrarily ordering a released defendant back to court for an additional sentence. We do

not agree. As previously mentioned, Minnick has been incarcerated since 1981,4 and

therefore had no ―Damocles sword‖ hanging over his head. Minnick also notes that, if

his sentences for rape and robbery had been imposed in 1985 and ordered to run

concurrently with his death sentence, they would have been discharged by now. While

this may be true, there is absolutely no indication whatsoever in the record that the

sentences would have been imposed in this fashion, and Minnick cites no authority that

such a sentence would have been required. Minnick has failed to establish that his right

to speedy sentencing has been violated.5

           II. Whether Minnick’s Convictions for Murder and Class A Felony
                Robbery Violate Prohibitions Against Double Jeopardy

       4
           Obviously, Minnick is entitled to credit for the time he has spent incarcerated in connection
with this case.
       5
         Minnick contends that sentencing him now for rape and robbery ―represents a blatant violation
of concepts of fundamental fairness.‖ Appellant’s Br. p. 21. In our view, it would violate concepts of
fundamental fairness far more if Minnick were allowed to avoid punishment for rape and robbery as an
unintended consequence of having his death sentence overturned.


                                                   8
       Minnick contends, and the State concedes, that his convictions for murder and

Class A felony robbery violate prohibitions against double jeopardy. Minnick’s robbery

conviction was a class A felony because it resulted in serious bodily injury. See Ind.

Code § 35-42-5-1. However, ―where a single act forms the basis of both a Class A felony

robbery conviction and also the act element of the murder conviction, the two cannot

stand.‖ Gross v. State, 769 N.E.2d 1136, 1139 (Ind. 2002) (citing Kingery v. State, 659

N.E.2d 490, 495-96 (Ind. 1995)). The stab wound in Payne’s back that caused her death

was also the serious bodily injury alleged in the robbery count. As such, we remand with

instructions to reduce Minnick’s robbery conviction to a Class B felony robbery.

       The State argues that we should order the imposition of a maximum sentence of

twenty years for Minnick’s robbery conviction and also that it be served consecutively to

his other sentences, as opposed to remanding for resentencing. Under the circumstances

of this case, we agree that such a disposition is warranted. Minnick does not contend that

the trial court abused its discretion in imposing maximum sentences (for rape and

robbery) or that the sentences be served consecutively, nor does he contend that his

sentence was inappropriately harsh. Moreover, all of the aggravating circumstances that

the trial court cited in imposing a maximum and consecutive sentence for the Class A

robbery apply with equal force to a Class B robbery. Cases involving the affirmance of a

sentence despite the use of erroneous aggravators lend support to our disposition. It is

well-settled that ―[w]here a trial court has used an erroneous aggravator, as occurred here,

the court on appeal can nevertheless affirm the sentence if it can say with confidence that

the same sentence is appropriate without it.‖ Witmer v. State, 800 N.E.2d 571, 572-73

                                             9
(Ind. 2003). In this case, we can say with confidence that a maximum and consecutive

sentence for the robbery would be eminently appropriate, no matter what felony class,

and so order that a twenty-year and consecutive sentence for robbery be imposed on

remand.

           III. Whether the Trial Court Abused its Discretion in Denying
                 Minnick’s Request for a Competency Evaluation

      Minnick contends that the trial court abused its discretion in denying his pre-

hearing request for a new competency evaluation.

      We have previously determined that ―the conviction of an incompetent
      defendant is a denial of federal due process and a denial of a state statutory
      right as well.‖ Faris v. State, 901 N.E.2d 1123, 1125 (Ind. Ct. App. 2009).
      A defendant is not competent to stand trial when he is unable to understand
      the proceedings and assist in the preparation of his defense. Mast v. State,
      914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied.
      ….
              However, the right to a competency hearing is not absolute. Mast,
      914 N.E.2d at 856. Instead, such a hearing is required only when a trial
      court is confronted with evidence creating a reasonable or bona fide doubt
      as to a defendant’s competency. Id. The decision regarding whether there
      is a reasonable doubt is within the trial court’s discretion and depends upon
      the specific facts and circumstances of each case. Id. We will only reverse
      the trial court’s decision if we find that the trial court has abused its
      discretion. McManus v. State, 814 N.E.2d 253, 259-61 (Ind. 2004). The
      trial court has abused its discretion when its decision is clearly against the
      logic and effect of the facts and circumstances before the court or when the
      trial court has misinterpreted the law. Stuff v. Simmons, 838 N.E.2d 1096,
      1099 (Ind. Ct. App. 2005).

Gibbs v. State, 952 N.E.2d 214, 219 (Ind. Ct. App. 2011).

      Minnick has failed to establish an abuse of discretion in this regard.           The

Logansport State Hospital reported to the trial court on March 7, 2011, that Minnick was

again competent to assist in the preparation of his defense. Minnick was found capable


                                           10
of working with counsel if he chose, disclosing pertinent facts, and testifying relevantly

and was appropriately motivated. Nothing in Minnick’s counsel’s remarks at sentencing

indicated that the assessment was no longer accurate.

        In response to Minnick’s counsel’s request for a competency evaluation at the

beginning of the sentencing hearing, the trial court decided to proceed while making it

clear that the issue could be raised again at any time. As it happened, the hearing

proceeded to completion without any indication that Minnick was incompetent. When

the trial court observed that Minnick aiding counsel during the hearing and noted that his

allocution ―was very clear and concise[,]‖ Tr. p. 64, his counsel did not contradict these

statements or point to any indication that he was incompetent during the hearing. Indeed,

Minnick does not challenge the trial court’s observations on appeal or even claim that he

was actually incompetent during the hearing. At no point during the hearing was the trial

court faced with any bona fide evidence that Minnick was incompetent, and consequently

it did not abuse its discretion in failing to order another competency evaluation.6

                                           CONCLUSION

        We conclude that the trial court properly imposed sentences for Minnick’s robbery

and rape convictions. We further conclude that the trial court did not err in failing to

order another competency evaluation for Minnick. Minnick’s conviction for Class A


        6
           Minnick argues that the trial court committed procedural, but not substantive, error in not
ordering an evaluation at the beginning of the hearing, essentially arguing that Minnick’s actual
competence during the hearing is irrelevant. We cannot accept this distinction. As we stated in Gibbs,
―[t]he purpose of I.C. § 35–36–3–1(a) is to avoid the conviction of an incompetent defendant, so it
follows that an error is harmless where it does not result in the conviction of an incompetent defendant.‖
952 N.E.2d at 219. Given the uncontested evidence of Minnick’s competence during the hearing, any
procedural error the trial court may have made could only be considered harmless.


                                                   11
felony robbery, however, violates prohibitions against double jeopardy. We reverse in

part and remand with instructions for the trial court to reduce Minnick’s robbery

conviction to a Class B felony and impose a twenty-year sentence to run consecutively

with his sixty-year sentence for murder and his fifty-year sentence for Class A felony

rape, for a sum total sentence of 130 years executed.

       The judgment of the trial court is affirmed in part and reversed and remanded in

part with instructions.

VAIDIK, J., and CRONE, J., concur.




                                            12
