Opinion
No. 3:06cv0577 AS.
May 2, 2007
MEMORANDUM, OPINION AND ORDER
The petition in this case was originally filed on September 22, 2006, by this petitioner, Obadyah Ben-Yisrayl, formerly known as Christopher Peterson, seeking relief under 28 U.S.C. § 2254. A Response has been filed on behalf of the respondent by the Attorney General of Indiana on March 9, 2007. A massive state record has been filed by the Attorney General of Indiana on March 13, 2007, and the petitioner filed a Traverse on March 26, 2007, which this court has carefully examined.
This petitioner was convicted of murder in two different counties of Indiana, namely Lake and Porter. When these two cases were handled in the Indiana courts, they were necessarily handled separately. The same is true when petitions under 28 U.S.C. § 2254 were filed in this court. However, when issues reached the Court of Appeals for the Seventh Circuit, that court combined the proceeding involving both Lake and Porter County in 431 F.3d 1043 (7th Cir. 2005) and 114 Fed. Appx. 760 (7th Cir. 2004). The several attorneys from the same Chicago law firm who have ably represented this petitioner with dedication, competence and success. He has benefitted greatly from their efforts so far. As a result of the efforts of these very able lawyers, this petitioner no longer is facing the death penalty. Oral argument was had in South Bend, Indiana on April 27, 2007, and such was very helpful. This court dealt with the Porter County convictions in Ben-Yisrayl v. Davis, 277 F.Supp. 2d 898 (N.D. Ind. 2003), aff'd, 431 F.3d 1043 (7th Cir. 2005). Upon this court's inquiry of the deputy attorney general of Indiana handling this case, it was disclosed that to his knowledge the Porter County, Indiana prosecuting attorney has made no move to retry this petitioner of the murder charges once pending there. So this case must focus only on the murder convictions Lake County, Indiana, and those issues have already been before this court in proceedings under 28 U.S.C. § 2254. This case was also the subject in 245 F.Supp. 2d 960 (N.D. Ind. 2002) and 245 F.Supp. 2d 973 (N.D. Ind. 2003).
An essential item must be mentioned very importantly along the way, the Supreme Court of Indiana following Saylor v. Indiana, 808 N.E. 2d 646 (Ind. 2004) set aside the death penalty in the Lake County cases. See also Minnick v. Anderson, 151 F.Supp. 2d 1015 (N.D. Ind. 2000). On December 13, 2004, the state trial court re-sentenced this petitioner to two consecutive terms of 60 years. An appeal was taken to the Court of Appeals of Indiana, and that court, speaking through Senior Judge Ratliff, affirmed the 60-year consecutive sentences imposed in the Lake Superior Court on this petitioner. That is reflected in an unpublished memorandum decision entered December 13, 2005, concurred in by Judges May and Darden. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. Demonstrating perhaps that the state and federal judiciary may have been operating somewhat on separate tracks, it is of some interest that the decision of the Court of Appeals reflected in 431 F.3d 1043 (7th Cir. 2005) was also entered on December 13, 2005. One of the things this court must deal with that part of the Indiana Court of Appeals opinion entered on the December 13, 2005 date as it pertains to the Lake County convictions. It has already been indicated that the decision of this court with regard to the Porter County conviction was indeed affirmed and, at least as far as can be known now, there is no apparent move to retry the Porter County cases. As suggested at oral argument, this court has taken a close look at Miller-El v. Cocknell, 537 U.S. 348 (2003). There is much to admire and follow there. However, that case is born in a different factual setting than here and the Batson issues there are not here.
This court takes judicial notice of the proceedings in 3:01cv065 AS in which a petition was filed for relief under 28 U.S.C. § 2254 on or about December 12, 2001, and takes note of this court's ruling in 245 F.Supp. 2d 960 (N.D. Ind. 2002). Specifically, the Court of Appeals entered an unpublished order separate from the opinion published at 431 F.3d 1043 in which it found itself without jurisdiction to decide the issues raised on appeal from the convictions and sentences in the Lake County cases. Such is reflected in Ben-Yisrayl v. Davis, 114 Fed. Appx. 760 (7th Cir. 2004). In that proceeding, the Seventh circuit held that because the petitioner had not been re-sentenced, his habeas petition was not ripe for review and could be re-filed after sentencing without being considered successive. As indicated on September 10, 2004, the Lake Superior Court granted this petitioner's successive petition for post-conviction relief and vacated his death sentences. Later on December 13, 2004, the Lake Superior Court sentenced this petitioner to two consecutive terms of imprisonment for the two murder convictions before that court. Those sentences were affirmed, as indicated above, on December 13, 2005. This court has also taken the trouble to examine carefully the contents of this petitioner's's petition to transfer the aforesaid December 13, 2005 decision by the Court of Appeals to the Supreme Court of Indiana. Such transfer was denied on June 27, 2006. This court has taken the trouble to dig up the petition to transfer and such is now attached as Appendix "B" here. There is a very serious concern here as to whether there has been compliance with the requirements of O'Sullivan v. Boerckel, 526 U.S. 838 (1999) in regard to the present sentences of this petitioner. There is also a serious question as to whether those two consecutive sentences authorized under the law of Indiana have been challenged in this court on Eighth Amendment federal constitutional grounds. Such a charge would be a very uphill climb under Harmelin v. Michigan, 501 U.S. 957 (1991). See also Solem v. Helm, 463 U.S. 277 (1983). It is elementary that the jurisdiction of this court under 28 U.S.C. § 2254 and related statutes is based on violations of the statutes, treaties and Constitution of the United States. This court is hard pressed to find the presentation of arguments of that nature in the state court proceedings since the vacation of the death sentences in the Lake Superior Court and the imposition of the 60-year consecutive terms. This court raises this question with great respect for the lawyers who have so ably represented this petitioner. It also goes without saying that under 28 U.S.C. § 2241 and Estelle v. McGuire, 502 U.S. 62 (1991), that there has to be something more here than violations of state law and arguments about that. This court is truly hard pressed to find such arguments here. Neither is this court convinced that an evidentiary hearing needs to be held here under 28 U.S.C. § 2253(e). See Williams v. Taylor, 529 U.S. 362 (2000).
With all deference, this court has already taken up and ruled on the ineffective assistance of counsel arguments now raised here. In fact, so has the Supreme Court of Indiana in Ben-Yisrayl v. State, 729 N.E. 2d 102 (Ind. 2000). The Supreme Court of Indiana unanimously gave very close attention to those arguments and correctly applied the standards in Strickland v. Washington, 466 U.S. 668 (1984), rehr'g denied, 467 U.S. 1267 (1984). This court also dealt with issues under Stone v. Powell, 428 U.S. 465 (1976), as did the Supreme Court of Indiana which also looked at the record under Gerstein v. Pugh, 420 U.S. 103 (1975). This court now reaffirms what it said about this case in the twin opinions in 245 F.Supp. 2d at pages 960 and 973.
As suggested in the oral argument, this court has indeed looked closely at Harris v. State, 617 N.E. 2d 912 (Ind. 1993). It does not appear to help this petitioner here. The principal issues that concern this court at the time of oral argument has largely been laid to rest by a careful revisiting of the various decisions involving this petitioner. This court was concerned that some way or other the sentencing in the Lake County cases took into account as aggravated circumstances the convictions in Porter County. A close examination of the record would seem to indicate that simply did not happen. It seems that the major premise of Judge Ratliff's opinion for the Court of Appeals of Indiana entered December 13, 2005 is based on the premise that the Porter County convictions and were not used as an aggravator here. The fact that there were two people murdered in this case was indeed used as an aggravator, and that certainly does not violate the Constitution, statutes or treaties of the United States. The issue as to consecutive sentences seems to be largely one of state law. See Scruggs v. State, 737 N.E. 2d 385 (Ind. 2000), and Tobar v. State, 740 N.E. 2d 109 (Ind. 2000).
Certainly, this defendant has received an abundance of attention from both the state and federal judiciary. This court raised a question which, incidentally, was not answered at the oral argument as to whether there was some species of constitutional right to engage in what is commonly called allocution in state criminal proceedings. Certainly that right is honored in the Constitution of Indiana. See Article 1, Sect. 13 and IC 35-38-1-5. It is also the subject of federal procedural rules, namely Federal Rule of Criminal Procedure 32, which recently was given considerable importance in United States v. Groves, 470 F.3d 311 (7th Cir. 2006). Taken as a totality of circumstances relating only to re-sentencing in this case causes this court to tilt ever so slightly in favor of the petitioner here. This also causes this court to encompass the grant of writ under very precise and narrow circumstances. Since that appears to be basically a state law issue here, this court will not exercise in any heavy-handed way the federal jurisdiction implicit in 28 U.S.C. § 2254 to remand this case for re-sentencing including allocution with regard to the present sentences.
There is some slightly more than a remote chance that the convictions in Porter County played too great a role in the sentencings imposed in Lake County, in this case. This court is well familiar with United States v. Tucker, 404 U.S. 443 (1972), having dealt with it first in 1974 in Hammond. Certainly, Tucker is based on some concepts of due process. It was cited by this petitioner in his petition to transfer to the Supreme Court of Indiana as shown in Appendix "B". There may be some limited argument under a species of due process with regard to the possible use of the Porter County convictions in the Lake County convictions in this case. Such is a very narrow question that is largely of state law, but some bits and pieces of it may be arguable under the Constitution of the United States as reflected in Tucker and its progeny. For that narrow reason, this court has determined to GRANT the writ here conditioned on very narrow circumstances. The writ is GRANTED so that the state trial court can appropriately conduct fresh sentencing proceedings on the basis of the available record only exclusive of any reference or use of the Porter County convictions. This court wishes to emphasize that it is not conditioning the grant of the writ on an entirely new trial on the merits in the Lake County cases. Such is not the intent at all. However, the proceedings suggested here do not foreclose fresh appellate proceedings to the Court of Appeals and Supreme Court of Indiana.
In its Order entered on October 29, 2004, the Court of Appeals for the Seventh Circuit specifically spiked any effort to treat further petitions under § 2254 as being successive. Therefore, this court does not in any way treat the present action by this petitioner as being a successive petition. Certainly the ruling in that order by the Court of Appeals is part of the law of this case. That being said, and this court revisiting its earlier decision dealing with the trial in Lake County of this petitioner on the dual murder charges, adheres to its earlier ruling dealing with issues which inhere in that trial proceeding. What has been argued here, quite permissively to be sure, are the issues with regard to sentencing after the death penalty was taken out of this case. It is in that area and that area alone that this court in the interest of the greatest of caution, will GRANT a writ limited only to the proceedings of the re-sentencing of this petitioner to two consecutive 60 years in prison. Candor requires this court to say that such is a generous use of the federal jurisdiction conferred on this court by the AEDPA.
The right allocution is also embodied in Rule 32, Federal Rules of Criminal Procedure. It also must be said that the mere existence of that right embodied in a federal procedural rule is probably not enough to grant this court federal jurisdiction to order the re-sentencing of this petitioner limited to the record that already exists and with the specific admonition that it isnot for an entire new trial. It must be further admonished that upon remand for this limited grant of the writ that the formulation of the sentences cannot in any way be influenced by anything that occurred in the proceedings involving this petitioner in Porter County, Indiana. Candor also requires this court to state that there is a worriment that such may have occurred in the re-sentencing of this petitioner, and that is at the heart of the decision to have the state court and this petitioner and his counsel have another go at the sentencing process. So the writ is GRANTED limited specially to consider federal constitutional issues as to the twin 60-year sentences imposed. IT IS SO ORDERED.
Appendix a
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE THOMAS W. VANES STEPHEN R. CARTER ANDREW A. KOBE IN THE COURT OF APPEALS OF INDIANA : : Crown Point, Indiana Attorney General of Indiana Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana OBADYAH BEN-YISRAYL, ) ) Appellant-Defendant, ) ) vs. ) No. 45A05-0501-CR-22 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas P. Stefaniak, Jr., Judge Cause No. 45G04-9103-CF-00042 DECEMBER 13, 2005 MEMORANDUM DECISION — NOT FOR PUBLICATIONRATLIFF, Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Obadyah Ben-Yisrayl f/k/a Christopher Peterson (Ben-Yisrayl) appeals the sentences he received upon re-sentencing for his 1992 convictions of two counts of murder.We affirm.
ISSUES
Ben-Yisrayl presents two issues for our review which we restate as:
I. Whether the court properly re-sentenced Ben-Yisrayl without further proceedings.
II. Whether the court properly relied on Ben-Yisrayl's prior murder convictions as aggravating factors in re-sentencing.
FACTS AND PROCEDURAL HISTORY
In 1990, Ben-Yisrayl murdered two brothers in the tailor shop they operated in Gary, Indiana. He was charged with two counts of murder, and the State requested the death penalty. Following a jury trial, Ben-Yisrayl was found guilty of both counts of murder, but the jury recommended against the death penalty. At sentencing, despite the jury's recommendation, the trial court imposed the death sentence. Although Ben-Yisrayl's convictions and sentence were affirmed by our supreme court in Peterson v. State, 674 N.E.2d 528 (Ind. 1996), reh'g denied, cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998), the supreme court granted Ben-Yisrayl's petition seeking authorization to file a successive petition for post-conviction relief based upon Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004), which held that it was no longer appropriate for the trial court to impose a sentence of death when the jury in the case has recommended against imposing the death sentence. The trial court granted Ben-Yisrayl's successive petition for post-conviction relief, and on December 13, 2004, the trial court re-sentenced Ben-Yisrayl to consecutive terms of sixty years. It is from the imposition of these sentences that Ben-Yisrayl now appeals.DISCUSSION AND DECISION I. SENTENCING WITHOUT FURTHER PROCEEDINGS
Ben-Yisrayl contends that the trial court improperly imposed his new sentences when it did so without a hearing. He begins his argument by citing three sentencing statutes, which he claims the trial court violated. Ind. Code § 35-38-1-3 requires that a court must conduct a hearing before sentencing a defendant for a felony. Ind. Code § 35-38-1-4 states that the defendant must be present at the time sentence is pronounced, and Ind. Code § 35-38-1-8 mandates that a defendant may not be sentenced for a felony before a presentence report is prepared by the probation department and considered by the court. Ben-Yisrayl claims that by issuing an order re-sentencing him without holding a hearing, the trial court violated these sentencing statutes.
We acknowledge these statutory requirements, and we note that these statutes were complied with during Ben-Yisrayl's original sentencing hearing held on June 5, 1992 at which he was present and for which a pre-sentence report was prepared and reviewed by the judge. However, at this time, we are not concerned with an original sentencing but rather a re-sentencing. In such a case, the trial court can issue a new sentencing order without holding a further sentencing hearing. See Chism v. State, 807 N.E.2d 798, 803 (Ind.Ct.App. 2004).
Although the pre-sentence report could not be located at the time the Appellant's Appendix was prepared for appeal, it is undisputed that such existed and was reviewed and considered at the time of original sentencing. See Appellant's Appendix at 35 (Sentencing Order of June 5, 1992) and 45 (affirmation dated January 25, 2005 regarding missing pre-sentence report).
In 2001, our supreme court decided O'Connell v. State, 742 N.E.2d 943 (Ind. 2001). In O'Connell, the court affirmed the defendant's convictions but remanded the case to the trial court for a new sentencing order. The court explained that when it orders such action, the trial court's responsibility to produce a new sentencing order that responds to the appellate court's concerns may be discharged by either: (1) issuing a new sentencing order without taking any further action; (2) ordering additional briefing on the sentencing issue and then issuing a new order without holding a new sentencing hearing; or (3) ordering a new sentencing hearing at which additional factual submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties. Id. at 952-53. In 2004, this Court decided Chism, and cited this rule from O'Connell. In Chism, the defendant filed a motion to correct erroneous sentence, and the trial court modified his sentence. The defendant appealed the modification to this Court and we affirmed the sentence modification, noting that "[w]e see no reason why a trial court correcting an erroneous sentence on its own, and not at the behest of an appellate court, also cannot 'issue a new sentencing order without taking any further action . . .'" Id. at 803. We agree and thus apply the same rationale here.
In addition, Ben-Yisrayl argues that a new sentencing hearing should have been conducted because the original sentencing judge is now deceased. In support of this contention, Ben-Yisrayl cites Abercrombie v. State, 275 Ind. 407, 417 N.E.2d 316 (1981) and Pearson v. State, 543 N.E.2d 1141 (Ind.Ct.App. 1989). In both of these cases, there were no statements of reasons to support the imposition of either consecutive or enhanced sentences. Therefore, the appellate court remanded the cases for more specific sentencing statements. However, more specific statements could not be obtained because the original sentencing judges were deceased, so the trial courts held new sentencing hearings. Thus, the trial courts did not hold new sentencing hearings merely because the original sentencing judges were deceased, as Ben-Yisrayl would have us believe. Rather, the appellate court wanted the trial courts to provide specific information which was not documented by the sentencing judge. Ordinarily, the appellate court would remand the case to the trial court, and the original judge would provide the specifics needed. However, without the original judge and without the documentation by him or her, new sentencing hearings were in order.
In contrast in the present case, the original sentencing judge set forth, very specifically, the aggravating and mitigating circumstances and stated his reasons for Ben-Yisrayl's sentences. Thus, there is no need for a more specific sentencing statement, and the fact that the original sentencing judge is now deceased is of no moment. Further, a review of the materials provided for appeal in this case show that the judge who re-sentenced Ben-Yisrayl was amply supplied from the record with the evidence needed to render a proper sentence. Additionally, Ben-Yisrayl was re-sentenced due to a change in Indiana's death penalty sentencing scheme, not due to a change in the circumstances of his case or to some error that occurred during sentencing. Under these circumstances, there was no need for the court, on re-sentencing, to hear further evidence.
Moreover, Ben-Yisrayl asserts that the sentencing statutes are different depending on whether the case is a capital case or a non-capital case. He claims that although the differences in the statutes are slight, he should have had a new sentencing hearing now that he is being sentenced as a non-capital defendant. We disagree. We presume the judge is aware of the sentencing statute and its factors for non-capital cases. See Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004) (stating that appellate courts presume trial judges are aware of and know the law). In applying the circumstances to the law, the re-sentencing judge had at his disposal the transcript from the original sentencing hearing, as well as the original sentencing judge's findings and sentencing statement with which to make his decision upon re-sentencing Ben-Yisrayl. We find no error.
Finally, Ben-Yisrayl claims that his right of allocution was denied by the trial court's failure to hold a hearing in order to re-sentence him. The right of allocution is embodied in Ind. Code § 35-38-1-5(a). This statutory section affords defendants an opportunity to make a statement to the court prior to the pronouncement of sentence and requires the court to ask the defendant whether he or she wishes to make such a statement. Ben-Yisrayl also asserts that the denial of his right of allocution amounts to a violation of his constitutional rights under Article 1, section 13 of our state constitution.
"A defendant who suggests that he was denied his right to allocution bears a heavy burden in establishing his claim." Minton v. State, 400 N.E.2d 1177, 1178 (Ind.Ct.App. 1980). In the present case, Ben-Yisrayl exercised his right of allocution at his original sentencing hearing in June 1992. He concedes this fact in his brief. See Appellant's Brief at 16 n. 8. As we stated previously, the statutory requirements for sentencing were complied with in the original sentencing hearing. We are now addressing the re-sentencing of Ben-Yisrayl for which we have determined no hearing was required. Thus, Ben-Yisrayl's right of allocution was neither involved nor violated. He has failed to meet his burden to show error.
II. AGGRAVATING CIRCUMSTANCES
Next, Ben-Yisrayl asserts that the trial court erroneously relied on his criminal history as an aggravating circumstance to support the imposition of enhanced sentences upon re-sentencing.
Sentencing is a determination within the sound discretion of the trial court, and we will not reverse the trial court's decision absent an abuse of discretion. Allen v. State, 722 N.E.2d 1246, 1250 (Ind.Ct.App. 2000). An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances of the case. Groves v. State, 823 N.E.2d 1229, 1231 (Ind.Ct.App. 2005). The broad discretion of the trial court includes whether to increase the presumptive sentence, to impose consecutive sentences, or both. Jones v. State, 807 N.E.2d 58, 68-69 (Ind.Ct.App. 2004), trans. denied, 822 N.E.2d 969.
Ben-Yisrayl was convicted of two counts of murder in Porter County in March 1992 prior to his convictions in the instant case in May 1992. At his original sentencing in the instant case, the trial court used the two murder convictions in Porter County as aggravating circumstances. Ben-Yisrayl later filed a petition for writ of habeas corpus with regard to the murder convictions in Porter County. The United States District Court for the Northern District of Indiana granted Ben-Yisrayl's petition, and his current argument is based upon the granting of that petition. He claims that the granting of his petition vacated the Porter County convictions such that they can no longer be relied upon in this case as criminal history aggravators. However, that is not the complete story. Once Ben-Yisrayl's petition was granted, the State appealed that decision to the Seventh Circuit Court of Appeals where both parties now await a decision. Therefore, the convictions from Porter County remain valid convictions pending the outcome of the case in the Seventh Circuit. Because the convictions remain valid, the court properly relied on them when re-sentencing Ben-Yisrayl.
Nevertheless, even assuming, arguendo, that the Porter County murder convictions are invalid, Ben-Yisrayl's enhanced sentences are proper. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. Hatchett v. State, 740 N.E.2d 920, 929 (Ind.Ct.App. 2000), trans. denied, 753 N.E.2d 8 (2001). We further note that a single aggravating circumstance may serve to enhance a sentence. Allen, 722 N.E.2d at 1253. The Porter County convictions were only two of three aggravating circumstances found by the trial court, and the third aggravator was clearly set forth in the court's sentencing statement. The court properly found that the fact that Ben-Yisrayl murdered not one but two people in this case, served to aggravate this crime.
The nature and circumstances of the offense, as well as the court's discretion to consider other matters, support the enhanced, consecutive sentences in this case. See Ind. Code § 35-38-1-7.1(a)(2) and (d). Here, Ben-Yisrayl, without provocation, murdered two unarmed brothers by shooting them in the back of the head with a sawed-off shotgun at close range in their place of business. Our supreme court has stated that in cases involving multiple killings, the imposition of consecutive sentences is appropriate. Scruggs v. State, 737 N.E.2d 385, 387 (Ind. 2000); see also Tobar v. State, 740 N.E.2d 109, 113 (Ind. 2000) (stating that "[a]s a general rule, multiple killings warrant the imposition of consecutive sentences"). Moreover, a single aggravating circumstance may be used both to enhance a sentence and to impose consecutive sentences. Allen, 722 N.E.2d at 1253. Thus, Ben-Yisrayl's enhanced, consecutive sentences for the double murder of two brothers are proper.
CONCLUSION
Based upon the foregoing discussion and authorities, we conclude that the court properly re-sentenced Ben-Yisrayl without further proceedings and that the court correctly relied on his prior murder convictions as aggravating factors for re-sentencing. Moreover, Ben-Yisrayl's enhanced, consecutive sentences are supported by an appropriate aggravating factor in addition to the two prior murder convictions.
Affirmed.
MAY, J., and DARDEN, J., concur.
Appendix B
IN THE INDIANA COURT OF APPEALS
No: 45A05-0501-CR-22 OBADYAH BEN-YISRAYL ) Appeal from the Superior Court of Appellant (Defendant Below) ) Lake County, Criminal Division ) v. ) Cause No: 45G04-9103-CF-00042 ) STATE OF INDIANA ) Honorable Thomas P. Stefaniak, Jr., Appellee (Plaintiff Below) ) Judge, Room IVAPPELLANT'S PETITION TO TRANSFER TO THE SUPREME COURT ORDER
IN THE INDIANA COURT OF APPEALS APPELLANT'S PETITION TO TRANSFER TO THE SUPREME COURT No: 45A05-0501-CR-22 OBADYAH BEN-YISRAYL ) Appeal from the Superior Court of Appellant (Defendant Below) ) Lake County, Criminal Division ) v. ) Cause No: 45G04-9103-CF-00042 ) STATE OF INDIANA ) Honorable Thomas P. Stefaniak, Jr., Appellee (Plaintiff Below) ) Judge, Room IV THOMAS W. VANES #935-45 Counsel for Appellant Office of the Public Defender 2293 N. Main St. Crown Point, IN 46307 (219) 755-3506 IN THE INDIANA COURT OF APPEALS No: 45A05-0501-CR-22 OBADYAH BEN-YISRAYL ) Appeal from the Superior Court of Appellant (Defendant Below) ) Lake County, Criminal Division ) v. ) Cause No: 45G04-9103-CF-00042 STATE OF INDIANA ) Honorable Thomas P. Stefaniak, Jr., Appellee (Plaintiff Below) ) Judge, Room IVSTATEMENT OF THE ISSUES WARRANTING TRANSFER
1. Was Ben-Yisrayl entitled to a new sentencing hearing after his death sentence, imposed twelve (12) years previously, had been vacated in post-conviction proceedings? 2. Was due process violated when the trial court used, as aggravating circumstances, prior murder convictions that had been set aside in federal habeas proceedings? TABLE OF CONTENTS TABLE OF AUTHORITIES Case(s) Page(s) Abercrombie v. State 417 N.E.2d 316 321 Ben-Yisaryl v. Davis 277 F.Supp.2d 898 Ben-Yisrayl v. Davis 431 F.3d 1043 th Bluck v. State 716 N.E.2d 507 Brooks v. State 555 N.E.2d 1348 Chism v. State 807 N.E.2d 798 Day v. State 560 N.E.2d 641 Dillon v. State 492 N.E.2d 661 Disney v. State 441 N.E.2d 489 Edwards v. State 479 N.E.2d 541 547 Gardner v. State 388 N.E.2d 513 Hinton v. State 397 N.E.2d 282 O'Connell v. State 742 N.E.2d 943 Ousley v. State 807 N.E.2d 758 Pearson v. State 543 N.E.2d 1141 Townsend v. Burke 334 U.S. 736 United States v. Harris 558 F.2d 366 th United States v. Rone 743 F.2d 1169 th United States v. Tucker 404 U.S. 443 Vicory v. State 802 N.E.2d 426 Ware v. State 189 N.E.2d 704 White v. State 647 N.E.2d 684 Rule(s) Page(s) Statutes(s) Page(s) 35-38-1-4 35-38-1-5 35-38-1-7.1 35-38-1-8 35-50-2-3 35-50-2-9Constitution(s) Page(s) Fifth Fourteenth 1 13 STATEMENT OF THE ISSUE)S) WARRANTING TRANSFER ......................... 1 PETITION TO TRANSFER .................................................. 4 I. Background and Prior Treatment of Issues ...................... 4 II. Argument ..................................................... 5 CONCLUSION ........................................................... 11 , , (Ind. 1981) ................... 7 , (N.D.Ind. 2003) ................. 7 , , (7 Circ. 2005) .... 8-9 , (Ind.Ct.App. 1999 ........................ 8 , (Ind.Ct.App. 1990) ..................... 10 , (Ind.Ct.App. 2004) ....................... 7 , (Ind. 1990) ................................ 9 , (Ind. 1986) ............................. 8 , (Ind.Ct.App. 1982) ...................... 5 , , (Ind. 1985) ....................... 9 , (Ind. 1979) ............................ 8 , (Ind. 1979) ............................. 5 , (Ind. 2001) .......................... 7 , (Ind.Ct.App. 2004) ...................... 6 , (Ind.Ct.App. 1989) .................... 7 , (1948) .................................. 8 , (7 Circ. 1977 .... 10 , (7 Circ. 1984) .... 10 , (1972) ............................ 8 , (Ind. 2004) ............................. 6 , (Ind. 1963) ............................... 5 , (Ind.Ct.App. 1995) ....................... 8 Rule 57 of the Rules of Appellate Procedure ........................... 4 Ind. Post-Conviction Rule 10 .......................................... 6 Ind, Code § 35-38-1-3 ............................................. 5 Ind. Code § ............................................. 5 Ind. Code § ............................................. 6 Ind. Code § ........................................... 7 Ind. Code § ............................................. 5 Ind. Code § ............................................. 4 Ind. Code § ............................................. 7 Amendment, United States Constitution ......................... 7-8 Amendment, United States Constitution .................... 7-8 Article , Section , Indiana Constitutuion .......................... 6PETITION TO TRANSFER
Appellant Obadyah Ben-Yisrayl, by counsel and pursuant to Rule 57 of the Rules of Appellate Procedure, petitions to transfer this appeal to the Supreme Court of Indiana. He says as follows:Background and Prior Treatment of Issues
1. Ben-Yisrayl's 1992 death sentence for a double murder in Lake County was set aside by agreement in post-conviction proceedings conducted in 2004, On December 13, 2004, the trial court re-sentenced Ben-Yisrayl and imposed maximum and consecutive sentences totaling 120 years imprisonment upon him. It did so without conducting a new sentencing hearing, and it re-sentenced Ben-Yisrayl without his presence. In lieu of conducting a hearing, Judge Thomas Stefaniak issued a written sentencing order in which he adopted and incorporated the capital sentencing findings issued twelve (12) years earlier by his predecessor, Judge James Clement. Two of the three aggravating circumstances originally found by Judge Clement in 1992, and then adopted by Judge Stefaniak in 2004, were Ben-Yisrayl's murder convictions in Porter County. Those Porter County convictions, which also date from 1992, had been set aside in federal habeas proceedings in the year 2003.
At the time of the offenses (1990), the maximum penalty for murder was sixty (60) years, per Ind. Code § 35-50-2-3.
2. On December 13, 2005, the Court of Appeals denied, by way of a not-for-publication memorandum decision, Ben-Yisrayl's appeal from the 2004 re-sentencing. The Court of Appeals upheld the trial court's ruling that Ben-Yisrayl was not entitled to a new sentencing hearing, and it denied his other claim that the trial court's reliance upon erroneous criminal history information (the vacated Porter County convictions) violated federal due process.
3. Ben-Yisrayl's subsequent Petition for Rehearing was denied on April 27, 2006.
Argument
1. New Sentencing Hearing
After Ben-Yisrayl's death sentence was vacated in 2004 via post-convictions proceedings, he requested that a sentencing hearing be conducted before new sentences were imposed in connection with the two murders of which he had been convicted in Lake County in 1992. (Appendix, p. 99-109). That request was denied. Maximum, consecutive sentences totaling 120 years were then imposed upon him without a hearing, without his presence, without a pre-sentence report, and without his input. He claims statutory and constitutional error in this regard.After the death sentence was vacated, Ben-Yisrayl had no sentence of any kind. He was thus "before sentencing" as the plain meaning of Ind. Code § 35-38-1-3 would suggest and thereby entitled to the hearing mandated by that statute. Additionally, Ind. Code § 35-38-1-4 requires that the person to be sentenced "must be present at the time sentence is pronounced." Even something far less consequential, such as the addition of a restitution component to probation, has been deemed improper if not imposed in the presence of the defendant. Disney v. State, 441 N.E.2d 489, 492 (Ind.Ct.App. 1982). Ind. Code § 35-38-1-8 requires "a defendant convicted of a felony may not be sentenced before a written pre-sentence report is . . . considered by the sentencing court." The failure to prepare such a report has been declared to be reversible error, Hinton v. State, 397 N.E.2d 282, 284 (Ind. 1979), citing Ware v. State, 189 N.E.2d 704 (Ind. 1963).
Ind. Code § 35-38-1-3 states: "Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing.
Although a pre-sentence report was prepared for and considered by Judge Clement in 1992, that report cannot now be located. (Appendix. p. 35 and 45). Additionally, there is nothing in Judge Stefaniak's order of December 13, 2004, which indicates consideration of any pre-sentence report — old or new.
Another sentencing statute in this state, Ind. Code § 35-38-1-5, provides in pertinent part: "The defendant may also make a statement personally in the defendant's own behalf and, before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement." Ben-Yisrayl made no such statement on December 12, 2004, nor was he given a chance to do so, since he was not even in court that day. In addition to statute, this "right to allocution" has a state constitutional basis under the "right to be heard" provision of Article 1, section 13 of the Indiana Constitution. Vicory v. State, 802 N.E.2d 426, 428-430 (Ind. 2004).
Additionally, support for the claim that Ben-Yisrayl was entitled to a hearing is also provided by Ind. Post-Conviction Rule 10(b), which states:
"Section 10 Subsequent Prosecution
(b) If a sentence has been set aside pursuant to this rule and the successful petitioner is to be resentenced, then the sentencing court shall not impose a more severe penalty than that 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 imposition of the original sentence, and the court shall give credit for time served. (emphasis added).
Ben-Yisrayl's sentence was set aside pursuant to that rule, and the state agreed that re-sentencing was necessary, (Appendix, p. 76, 79). Section 10(b) was thus applicable at that point, and that section clearly contemplates that a new sentencing hearing will be conducted under those circumstances. The denial of a new hearing also meant Ben-Yisrayl had no chance to exercise his right to present evidence of his character and rehabilitation since the original sentencing hearing. Ousley v. State, 807 N.E.2d 758, 760-761 (Ind.Ct.App. 2004).
The Court of Appeals upheld the trial court's denial of Ben-Yisrayl's request for a new sentencing hearing largely upon the basis of this Court's decision in O'Connell v. State, 742 N.E.2d 943, 952-953 (Ind. 2001) and the decision of the Court of Appeals in Chism v. State, 807 N.E.2d 798, 803 (Ind.Ct.App. 2004). (Opinion, p. 4-5). Although these decisions do provide authority for a new sentencing order ( O'Connell) or a sentence modification ( Chism) without the necessity of a new hearing, Ben-Yisrayl contends that extension of the O'Connell/Chism decisions by the Court of Appeals to a re-sentencing conducted (1) twelve [12] years after the original sentencing, (2) under a different sentencing regime, (3) before a different judge, and (4) after post-conviction relief is unwarranted. Such an extension, he contends, comes close to establishing a 'one and done' principle for sentencing that contravenes Indiana statutes, post-conviction rules, and the Indiana constitution.
Ind. Code § 35-50-1-9 (death penalty provision) versus Ind. Code § 35-38-1-7.1 (non-capital sentencing).
In at least two decisions, the death of the original sentencing judge eliminated the "no-new-hearing" option for re-sentencing. See Abercrombie v. State, 417 N.E.2d 316, 321 (Ind. 1981) and Pearson v. State, 543 N.E.2d 1141, 1144 (Ind.Ct.App. 1989).
II. Due Process
Judge Stefaniak's sentencing order of December 13, 2004, expressly adopts and incorporates three aggravating circumstances found in 1992 at the initial sentencing in this matter, two of which were Porter County murder convictions that had been vacated in 2003 by Judge Sharp, United States District Court, Northern District of Indiana. (Appendix, p. 38, 116), Ben-Yisaryl v. Davis, 277 F.Supp. 2d 898 (N.D.Ind. 2003). Ben-Yisrayl contends that Judge's Stefaniak's reliance upon those vacated convictions violates due process as guaranteed him by the federal constitution.
Both the Fifth and Fourteenth Amendments to the Constitution of the United States provide that no person shall be "deprived of life, liberty, or property without due process of law." Due process requires that a sentence be based upon accurate information and it prohibits a sentence based on materially erroneous criminal history information. Townsend v. Burke, 334 U.S. 736, 740-741 (1948); United States v. Tucker, 404 U.S. 443, 447 (1972). Indiana cases have recognized this constitutional principle. "[A] person is entitled to be sentenced only on the basis of accurate information. A sentence based on materially untrue assumptions violates due process," Gardner v. State, 388 N.E.2d 513, 520 (Ind. 1979). As a corollary to this, "the defendant retains the right to refute any inaccurate or improper information." Bluck v. State, 716 N.E.2d 507, 512 (Ind.Ct.App. 1999), citing Dillon v. State, 492 N.E.2d 661, 663 (Ind. 1986). The impropriety of using vacated convictions to aggravate a sentence was also noted in White v. State, 647 N.E.2d 684, 688 (Ind.Ct.App. 1995), although the opinion there does not indicate the basis for that statement.
Neither Ben-Yisrayl nor his attorneys had a chance to refute the erroneous information concerning the Porter County convictions since no re-sentencing hearing was conducted and none of them were present when the new sentence was imposed.
In its opinion, the Court of Appeals engaged in a two-part analysis of this due process claim It first noted that since the State of Indiana was appealing Judge Sharp's grant of Ben-Yisrayl's habeas petition, "the convictions from Porter County remain valid convictions pending the outcome of the case in the Seventh Circuit. Because the convictions remain valid, the court properly relied upon then when re-sentencing Ben-Yisrayl." (Opinion, p. 8). The Seventh Circuit has now spoken, and as it coincidentally happened, it did so on the very day (December 13, 2005) that the Court of Appeals issued its decision. The Seventh Circuit Court of Appeals affirmed (unanimously) Judge Sharp's judgment vacating those convictions, Ben-Yisrayl v. Davis, 431 F.3d 1043, (C.A.7 (Ind.) 2005), rehearing and rehearing en banc denied (January 21, 2006). Whatever avenues for relief may still exist for the State, its prospects for success are diminishing, and it remains that four federal judges have now ruled that the Porter County convictions are constitutionally defective while none has argued otherwise.
The full history of the habeas proceedings before Judge Sharp (cause 3:01-CV-0871 AS) is available at https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?177684151082373-L_186_0-1. The habeas petition was conditionally granted by Judge Sharp on July 23, 2003, but stayed pending appeal on August 14, 2003. After the Seventh Circuit decision, Judge Sharp granted the writ on April 13, 2006.
It appears that the State will seek relief from the United States Supreme Court, Davis v. Ben-Yisrayl, Docket No. 05A965 (http://www.supremecourtus.gov/docket/05a965.htm).
Even if one assumes the Porter County convictions remain technically valid pending the grant or denial of certiorari by the U. S. Supreme Court, Ben-Yisrayl had the limited right to mount a collateral challenge to their use for sentence enhancement if their constitutional infirmities undermined the integrity and fairness of the determination of guilt. Edwards v. State, 479 N.E.2d 541, 547 (Ind. 1985). Judge Sharp's ruling, which came before Judge Stefaniak's re-sentencing would certainly provided the ammunition for such a collateral attack, had a re-sentencing hearing been conducted.
In the second part of its analysis, the Court of Appeals assumed arguendo the invalidity of those convictions. It then held that because one valid aggravating circumstance remained, and because a single aggravator may support both enhanced and consecutive sentences, the maximum and consecutive sentences imposed upon Ben-Yisrayl were proper. While Ben-Yisrayl does not quarrel with that principle, he does believe that further analysis is required. As articulated by this Court in Day v. State, 560 N.E.2d 641, 642 (Ind. 1990):
"This case prompts us to articulate a standard for appellate review of trial court sentencing decision which rest in part on impermissible grounds, A sentence supported by permissible grounds sufficient to persuade the reviewing court that the original sentencing decision would have been the same had the trial court not relied on the impermissible factor should be affirmed. When the appellate court cannot reach that conclusion with confidence, it should remand for a new sentencing hearing or revise the sentence on appeal.
A situation similar to Ben-Yisrayl's was presented in Brooks v. State, 555 N.E.2d 1348 (Ind.Ct.App, 1990), in which that appellant claimed there, as Ben-Yisrayl does here, that he was sentenced on the basis of erroneous criminal history information. Finding that this claim was correct, but noting that valid aggravators remained, the Court there also recognized the principle that a single aggravating circumstance may support both enhanced and consecutive sentences, Ibid, at p. 1350. But it went on to state:
"[W]e note that sentencing does not involve a choice between three discrete alternatives — minimum, presumptive, or maximum sentence. On the contrary, the trial court has discretion to impose any sentence within the minimum and maximum imposed by law, which is supported by an adequate statement of reasons, based upon accurate information. Here we cannot say the inaccurate information did not contribute to the trial court's decision to impose the maximum sentence for both convictions and order consecutive sentences." Ibid.
And because the use of erroneous criminal history information at sentencing implicates federal due process, Ben-Yisrayl would cite the federal standard of review in such cases: "A sentence must be set aside where the defendant can demonstrate that false information formed part of the basis for that sentence. The defendant must show, first, that the information before the sentencing court was false, and, second, that the court relied on that false information." United States v. Rone, 743 F.2d 1169, 1172 (7th Circ. 1984), citing United States v. Harris, 558 F.2d 366, 375 (7th Circ. 1977).
Ben-Yisrayl contends that the Court of Appeals, after it assumed arguendo the invalidity of the Porter County convictions, did not then proceed to engage in the required Day/Brooks/Rone analysis of the effect of the erroneous information upon the sentencing judge. Had it done so, Ben-Yisrayl suggests, it would necessarily have concluded that impact of two prior (but invalid) murder convictions upon the trial court was more than de minimus. It's difficult to imagine an aggravating circumstance with greater impact upon a sentencing judge than a history of unrelated murder convictions. It cannot reasonably be said "with confidence" that the erroneous information had no effect and that Ben-Yisrayl's sentence(s) would have been the same without it.
The Porter County convictions are invalid and the trial court's reliance upon them violated due process.
CONCLUSION
WHEREFORE, Obadyah Ben-Yisrayl respectfully requests that the Supreme Court grant transfer, reverse the decision of the Court of Appeals, and remand the matter for a new sentencing hearing in the trial court.
Respectfully submitted, THOMAS W. VANES #935-45 Counsel for Appellant Office of the Public Defender 2293 N. Main St. Crown Point, Indiana 46307 (219)755-3506 IN THE INDIANA COURT OF APPEALS No: 45A03-0412-CR-00573 OBADYAH BEN-YISRAYL ) Appeal from the Superior Court of Appellant (Defendant Below) ) Lake County, Criminal Division ) v. ) Cause No: 45G04-9103-CF-00042 ) STATE OF INDIANA ) Honorable Thomas P. Stefaniak, Jr., Appellee (Plaintiff Below) ) Judge, Room IV