COA affirms new rape sentence consecutive to other cases

The Indiana Court of Appeals has affirmed a new sentencing order that cut a man’s decades-long rape sentence by more than half, finding that the trial court has authority to order his new sentence run consecutively to sentences for his other convictions.

In 1994, Harry Hobbs was convicted and sentenced to an aggregate 120 years behind bars for conviction of Class A felony rape, two counts of Class A felony criminal deviate conduct, and Class B felony burglary.

He unsuccessfully challenged his convictions and sentence on direct appeal, but he was able to win a post-conviction claim that his appellate counsel provided ineffective assistance by failing to argue on direct appeal that Hobbs should have been sentenced under a newly amended version of Indiana Code Section 35-50-1-2(a).

When the post-conviction court resentenced Hobbs to an aggregate term of 45 years and ordered his sentence to run consecutive to his sentences in two other causes, Hobbs appealed. He argued that the trial court lacked authority to order his sentences to run consecutively and that doing so violated constitutional prohibitions against ex post facto laws.

The Indiana Court of Appeals disagreed, finding that the trial court had authority to order his sentence to run consecutive to those in the other causes and that it did not violate ex post facto prohibitions in Harry C. Hobbs v. State of Indiana, 19A-CR-02819.

First, the appellate court disagreed with Hobbs that the holding in (Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000)) dictates the result he seeks, finding Lane II to be clearly distinguishable.

“In accordance with the new amendment, the post-conviction court remanded for a new sentencing hearing and advised that on remand Hobbs could present new potential mitigating evidence and that the trial court had the discretion to order Hobbs’s sentence to be served consecutive to other eligible sentences. These circumstances are simply not the same as those in the Lane cases, which involved a mere ministerial alteration of a number. The State argues, and we agree, that the trial court was merely following the mandate of the postconviction court to resentence Hobbs pursuant to the amended version of Section 35-50-1-2(a),” Judge Terry Crone wrote for the appellate court.

Additionally, the appellate court rejected Hobbs’ argument that the trial court was without authority to order his sentence to be served consecutive to the other causes. In doing so, it cited Gootee v. State, 942 N.E.2d 111 (Ind. Ct. App. 2011), Greer v. State, 680 N.E.2d 526 (Ind. 1997) and Coble v. State, 523 N.E.2d 228 (Ind. 1988), as cases that illustrate the dimensions of the trial court’s authority to resentence on remand.

On a final note, the appellate court concluded that Hobbs’ crimes in the case received no punishment in addition to what was permitted under the prior version of subsection (a). Thus, it concluded there was no ex post facto violation.

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