The majority of an Indiana Court of Appeals panel reversed the resentencing of a burglar who was serving an out-of-state sentence, holding that a harsher sentence that was imposed on a prior remand was a manifest injustice. But a dissenting judge wrote that the offender’s victims would suffer a greater injustice if the sentence is reduced.
The COA panel reversed a 16-year sentence imposed in Jacob L. Maciaszek v. State of Indiana, 18A-CR-939. Maciaszek, who was convicted of two Class B felony burglary counts, previously won an appeal of a denial of his prison credit time, and his case was remanded to the Kosciusko Superior Court. When Maciaszek was convicted and sentenced in Indiana, he also was serving sentences for convictions in New Hampshire.
At resentencing, Judge David C. Cates awarded Maciaszek the credit time he had sought, but he also ordered Maciaszek’s sentence be served consecutive to his other convictions, thereby lengthening his overall term of incarceration.
Judge L. Mark Bailey, joined by Judge Paul Mathias, reversed that decision Thursday.
“Here, there is no question that this court already decided that the Indiana and New Hampshire sentences run concurrently; we stated ‘the Indiana and New Hampshire sentences were to be served concurrently’” in Maciaszek’s first appeal, Bailey wrote. “That holding is unambiguous, with only one possible construction.” The majority therefore reversed the trial court, applying the law of the case doctrine.
But the state argued that a consecutive sentence was required under Indiana Code 35-50-1-2(e), because Maciaszek was serving a suspended sentence revocation in New Hampshire at the time of his Indiana offense. The record, however, shows Maciaszek committed the Indiana crime in December 2011 — almost a year before he was sentenced for a New Hampshire offense.
Further complicating the matter, Bailey wrote, “there is a difference of opinion among our panel as to whether our prior decision in this case was in error.” The panel relied on Ramirez v. State, 455 N.E.2d 609, 617 (Ind. Ct. App. 1983), cert. granted sub nom. Ramirez v. Indiana, 469 U.S. 929 (1984), judgment summarily aff’d without opinion, 471 U.S. 147 (1985), reh’g denied, for the proposition that, where there is no indication whether sentences for different crimes in different jurisdictions are to run consecutively or concurrently, the court assumes the sentences are to run concurrently.
“Although Ramirez was summarily affirmed by the United States Supreme Court, Indiana cases decided since Ramirez have clearly held ‘there is no right to serve concurrent sentences for different crimes in the absence of a statute so providing, and that concurrent sentences may be ordered only when they are to be served at the same institution,’” Bailey wrote. The majority cited Sweeney v. State, 704 N.E.2d 86, 110 (Ind. 1998) (quoting Shropshire v. State, 501 N.E.2d 445, 446 (Ind. 1986)); and Perry v. State, 921 N.E.2d 525, 527 (Ind. Ct. App. 2010).
“Regardless of whether Maciaszek I was erroneously decided, we hold that the law of the case doctrine requires that that decision controls in this case,” the majority concluded. “… Here, it would create a hardship and work a manifest injustice to Maciaszek if we did not apply the law of the case doctrine, in that he would be subject to additional incarceration time. Therefore, we apply that doctrine.”
Judge Cale Bradford dissented and would affirm the trial court, believing “that application of the law of the case doctrine results in the imposition of an illegal sentence.
“We have previously concluded that when the sentence imposed is improper, ‘it is the general if not unanimous rule that the trial court has the power to vacate the illegal sentence and impose a proper one.’ Lockhart v. State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996),” Bradford wrote. “Further, although one could argue that Maciaszek would suffer a manifest injustice, i.e., he would be subjected to a longer term of incarceration, if the law of the case doctrine were not applied, we have previously recognized that following vacation of an illegal sentence, the trial court may impose a proper sentence even if it ‘results in an increased sentence.’ Niece v. State, 456 N.E.2d 1081, 1084 (Ind. Ct. App. 1983).”
“Thus, given the interstate nature of Maciaszek’s seemingly repetitive criminal behavior, one could reasonably conclude that application of a lawful sentence will not result in a manifest injustice to him,” Bradford concluded. “Moreover, one could also reasonably conclude that imposition of illegal concurrent sentences would result in a manifest injustice to the citizenry of both Indiana and New Hampshire, especially those individuals victimized by Maciaszek.”