Summary
declining to set aside an improperly imposed concurrent sentence ordered pursuant to a plea agreement because "Moredock did not suffer any harm by being sentenced to serve concurrent instead of consecutive time; rather, he benefited from being able to serve the time concurrently."
Summary of this case from Davies v. StateOpinion
No. 49A02-9707-PC-455
April 3, 1998
Appeal from the Marion Superior Court, The Honorable Alex Murphy, Judge Pro Tempore, Cause No. CR78-414A.
Susan K. Carpenter, Public Defender, Patrick R. Ragains, Special Deputy Public Defender, Anderson, for Appellant-Petitioner.
Jeffrey A. Modisett, Attorney General, John B. Herriman, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.
STATEMENT OF THE CASE
Steven Moredock appeals the denial of his petition for post-conviction relief. We affirm.
FACTS
Moredock was charged with committing an attempted robbery (a class C felony) on December 21, 1978. On March 19, 1979, Moredock entered a plea of guilty to attempted theft, a class D felony, pursuant to a plea agreement. Under the plea agreement, Moredock would serve a two year sentence for attempted theft concurrent to his time on a pending probation revocation proceeding.
In 1997, Moredock filed the instant petition for post-conviction relief, his second. Moredock claimed that his 1979 sentence — by being concurrent with the time he would be ordered to serve for his then-pending probation violation — violated the Indiana statute requiring that a sentence for an offense committed subsequent to an offense for which one is serving a current sentence must be served consecutively to the sentence for the earlier offense. See Ind.Code 35-50-1-2. According to Moredock, Golden v. State, 553 N.E.2d 1219 (Ind. Ct. App. 1993), trans. denied, and Thompson v. State, 634 N.E.2d 775 (Ind. Ct. App. 1994), required that his 1979 sentence be set aside.
The record merely indicates that Moredock challenged his guilty plea as being involuntarily and unintelligently entered and that we affirmed the denial of his first petition in a 1988 memorandum decision.
The post-conviction court denied his petition after first finding that (1) the State's concurrent sentencing recommendation was obtained "through negotiations to which [Moredock] was a party," and (2) Moredock's 1979 sentence was consistent with the terms of the parties' written plea agreement. (R. 107).
DECISION
Moredock reasserts the above argument on appeal. He concedes that "he got the sentence he bargained for," but insists that Golden requires an "illegal sentence" to be corrected. Moredock's Brief at 7. He fails to discuss Golden or explain how its reasoning applies to his argument. We do not find Golden apposite to Moredock's particular claim here in that Golden did not concern a plea agreement regarding the sentence.
We find his continued reliance on Thompson to be flawed for purposes of application here in that the sentence imposed pursuant to Thompson's plea agreement was improperly ordered to run consecutive to another sentencing for another charged crime. We cannot accept his contention that "Thompson involves precisely the same issue as in the instant case," Id. at 9, for one critical reason: Thompson suffered the harm of a sentence improperly ordered to be served consecutively. Moredock did not suffer any harm by being sentenced to serve concurrent instead of consecutive time; rather, he benefitted from being able to serve the time concurrently. We have said that even error of constitutional dimension does not necessarily require reversal but that "in addition to error, a party must also make some showing of injury or prejudice resulting from the error." Joseph v. State, 603 N.E.2d 873, 875 (Ind. Ct. App. 1992). See also White v. State, 497 N.E.2d 893 (Ind. 1986) and McKrill v. State, 452 N.E.2d 946 (Ind. 1983). Moredock has not shown us how he was prejudiced by being ordered to serve his 1979 sentence concurrent to that for his pending probation violation.
Moredock "failed to convince" the post-conviction court "that any error in his sentence . . . constitute[d] a basis for sentencing him anew." (R. 109). Moredock bore the burden of establishing the grounds for his relief by a preponderance of the evidence. See Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993). To prevail on appeal from the denial of post-conviction relief, he must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. See Id. The post-conviction court's conclusion that he failed to do so is not clearly erroneous.
We affirm.
SHARPNACK, C.J., and HOFFMAN, J., concur.