Dawn R. Elston
Attorneys for Appellee
Attorney General of Indiana
James D. Dimitri
Deputy Attorney General
Dawn R. Elston
KENNETH WAYNE PAYNE,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
Defendant contends that the trial court violated the limitations on consecutive
sentences imposed by a statute enacted in 1994. We agree with defendant and reverse the
Around 2:00 a.m. on March 20, 1994, defendant, armed with a rifle, entered a Burger
King restaurant in Jeffersonville, Indiana. He demanded that the manager open the safe and,
after retrieving the money, locked the manager and three other employees in the cooler. All
four employees were released from the cooler when the opening manager arrived for his
shift. The evidence revealed that the defendant may have attempted to set the restaurant on
Defendant was charged with and found guilty of the following crimes: four counts of
Attempted Murder,See footnote
class A felonies; Armed Robbery,See footnote
a Class B felony; Arson,See footnote
a class B
felony; and four counts of Criminal Confinement,See footnote
class B felonies. He was sentenced to
serve consecutively 45 years for each Attempted Murder charge or total executed time of
180 years. The other charges were ordered to be served concurrently with the Attempted
Murder sentence. In a memorandum decision, the Court of Appeals reversed. Payne v.
State, No. 10A01-9504-CR-111 (Ind. Ct. App. Sept. 13, 1996). The State seeks transfer.
Defendant raised only one issue on appeal. Like the appellant in our recent case,
Greer v. State, 684 N.E.2d 1140 (Ind. 1997), defendant claimed that the terms of his
sentence exceeded the limitation on consecutive sentences imposed by Ind. Code § 35-50-1-
2 (Supp. 1994), a statute enacted by the legislature in 1994See footnote
and substantially amended in
Neither the defendant nor the State discusses whether Ind. Code § 35-50-1-2 (Supp. 1994) is applicable. This statute did not take effect until July 1, 1994, which was after the crimes were committed. At the time that defendant committed the crimes, the trial court had discretion in determining when to impose consecutive sentences. See Ind. Code § 35-50-1-2 (1993). As a general rule, courts must sentence defendants under the statute in effect at the
time the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind.
1997)(citing State v. Alcorn, 638 N.E.2d 1242, 1244 (Ind. 1994)). Therefore, if the general
rule applied, the trial court would have been correct to impose consecutive sentences
totaling 180 years. However, an exception to the general rule exists when the legislature
enacts an ameliorative amendment without including a specific savings clause.See footnote
this exception, a new ameliorative statute will apply to all individuals sentenced after the
statute's effective date. Palmer, 679 N.E.2d at 892.
Defendant was charged on March 23, 1994 and sentenced on December 15, 1994,
while the amended statute took effect on July 1, 1994. Thus, because the statute took effect
after the defendant was charged, but before the defendant was sentenced, defendant is
entitled to be sentenced under the new statute because it is ameliorative. See Palmer, 679
N.E.2d at 892 n.4, aff'g Tedlock v. State 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). .
In Greer, we held that the statutory limitation on imposing consecutive sentences will apply to an Attempted Murder conviction unless the defendant received "an enhanced
penalty because the felony resulted in serious bodily injury if the defendant knowingly or
intentionally caused the serious bodily injury." Greer, 684 N.E.2d at 1142 n.7. We resolve
this case by applying the same analysis set forth in Greer.See footnote
As it did in Greer, application of this statute requires several steps. First, we identify
the presumptive sentence for a felony that is one class higher than the most serious felony
with which defendant was charged. Id. at 1142. Here, the most serious felony defendant
was convicted of was Attempted Murder, a Class A felony. Ind. Code § 35-41-5-1 (1993).
Since Murder is the felony one class higher than a Class A felony, the presumptive sentence
of 40 years for MurderSee footnote
is the maximum term of imprisonment that defendant can be
sentenced to for his convictions arising out of this "episode of criminal conduct." Ind. Code
§ 35-50-1-2(a) (Supp. 1994).
The next step requires an analysis of whether any of the convictions for which defendant received consecutive sentences _ the three Attempted Murder convictions _ constitute convictions for which (i) defendant received an enhanced penalty because the felony resulted in serious bodily injury and, if so, (ii) the defendant knowingly or intention
ally caused serious bodily injury.
The victims do not appear to have suffered serious bodily injury. "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ." Ind. Code § 35-41-1-25 (1993). Although the victims were locked in a cooler at a temperature of 35 degrees or below for three and half hours, there is no evidence of any bodily injury. Nor did the trial court make any findings that the victims suffered serious bodily injury. We conclude that the victims did not suffer serious bodily injury and, therefore, need not determine whether defendant's actions were knowing or intentional.
Based on our conclusion in Greer that the statutory limitation on imposing consecu
tive sentences does apply to Attempted Murder convictions and on the foregoing analysis,
we find that the limitation should have been imposed in this case. Therefore, we grant
transfer, summarily affirm the decision of the Court of Appeals, reverse the trial court, and
remand to the trial court for proper sentencing under Ind. Code § 35-50-1-2 (Supp. 1994).
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for murder and felony convictions for which a person receives an enhanced penalty because the felony resulted in serious bodily injury if the defendant knowingly or intentionally caused the serious bodily injury, the total of the consecutive terms of imprisonment, exclusive of the terms of imprisonment under Ind. Code § 35-50-2-8 and Ind. Code § 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
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