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Divided COA adds to difference of opinion on partial consecutive sentences

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A Court of Appeals opinion issued Monday further deepened a divide on whether judges may impose partially consecutive sentences.

The court in a 2-1 decision affirmed denial of Bryant E. Wilson’s motion to correct erroneous sentence for his conviction in 1996 of Class A felony charges of rape and criminal deviate conduct, and Class B felony robbery. Wilson was sentenced to an aggregate executed prison term of 50 years – concurrent 45-year terms for the Class A felony, and 20 years for the robbery conviction, with five years of that sentence served consecutive to the 45-year terms.

“Simply put, Wilson’s sentencing judgment is not erroneous on its face, and therefore the trial court did not err in denying his motion to correct erroneous sentence. Consequently, we affirm,” Judge Terry Crone wrote in an opinion joined by Judge Ezra Friedlander.

Chief Judge Margret Robb found differently and would have reversed the Grant Superior Court’s denial of motion to correct error. “Because the sentence in question was not explicitly permitted by statute, I believe it was therefore erroneous,” Robb concluded.

“Because I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute, I respectfully dissent.”

Wilson argued in his pro se appeal, Bryant E. Wilson v. State of Indiana, 27A02-1212-CR-1012, that the trial court “lacked statutory authority in holding a part of his sentence in abeyance.”

“Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible,” Crone wrote. “Compare Hull v. State, 799 N.E.2d 1178, 1182 and n.1 (Ind. Ct. App. 2003) (disapproving of partially consecutive sentences for two counts of murder), with Merida v. State, 977 N.E.2d 406, 409-10 (Ind. Ct. App. 2012) (disagreeing with Hull’s rationale and noting that Ind. Code § 35-50-1-2 ‘does not specifically prohibit partially consecutive sentences such as the one imposed in Hull.’) (Crone, J., dissenting), trans. granted (2013).

“We note that Hull was decided more than seven years after Wilson was sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved of partially consecutive sentences,” Crone wrote.
 

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