Attorney for Appellants
Donald W. Pagos
Sweeney, Dabagia, Donoghue,
Thorne, Janes & Pagos
Michigan City, Indiana
Attorneys for Appellee State
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
Attorney for Appellee Dobeski
J. David Keckley
South Bend, Indiana
INDIANA SUPREME COURT
JAMES JOHNSTON and
Appellants (Intervenors below),
RICHARD ALLEN DOBESKI,
Appellee (Petitioner below ),
STATE OF INDIANA,
Appellee (Respondent below).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE PORTER CIRCUIT COURT
The Honorable Donald D. Martin, Special Judge
Cause No. 64-PCCR-105
ON PETITION TO TRANSFER
November 22, 2000
In 1964, sixteen-year-old Richard Dobeski murdered two children. He received consecutive life
sentences under the indeterminate sentencing system in effect at the time. In
1989, the State agreed to reduce the two life sentences to two consecutive
40-year terms in return for Dobeski agreeing to dismiss his claims for post-conviction
relief. This appeal challenges the validity of that agreement, which we affirm.
On August 31, 1964, Richard Allen Dobeski, at sixteen years of age, murdered
James and Judy Johnstons two minor children. The sentence for murder in
effect at the time was an indeterminate term of life, subject to parole.
Burns Ind. Stat. Ann. § 10-3401 (1956 Replacement). Accordingly, the trial
court sentenced Dobeski to two consecutive life terms of imprisonment. In January,
1985, Dobeski filed a petition for post-conviction relief, alleging violations of his constitutional
rights during his trial. On July 10, 1989, Dobeski and the State
entered into a court-approved agreement in which Dobeski agreed to dismiss his petition
for post-conviction relief with prejudice, and the State agreed that Dobeskis original sentences
would be modified to a sentence of forty (40) years on each [murder]
count to be served consecutively with credit for time served. The local
prosecutors office did not notify the Johnstons of this agreement and they remained
unaware of it until a friend informed them that notice of a parole
hearing for Dobeski appeared in the local newspaper.
On May 14, 1997, the Johnstons asked the post-conviction court to allow them
to intervene and to vacate the 1989 agreement between the State and Dobeski,
on grounds that it was illegal and did not comply with Indiana law
governing sentence modification. The trial court conducted hearings on the Johnstons requests
on June 27, 1997, and October 3, 1997. On October 7, 1997,
Dobeski asked the court to dismiss the Johnstons motions. On October 9,
1997, the trial court granted Dobeskis request and dismissed the Johnstons motions, finding
that they lacked legal standing to challenge Dobeskis agreement with the State.
The Johnstons appealed.
On appeal, the State changed its position and sided with the Johnstons, arguing
that the trial court had no authority to accept an agreement for a
sentence less than a life sentence on either murder conviction. The Court
of Appeals agreed with the trial court that the Johnstons lacked standing to
intervene, but held that the trial court had committed fundamental error in modifying
Dobeskis sentence to two consecutive 40-year terms because [i]n 1964, the only sentences
authorized for murder in the first degree were death and life imprisonment.
Johnston v. State, 702 N.E.2d 1085, 1090 (Ind. Ct. App. 1998). The
Court of Appeals vacated the 1989 agreement between the State and Dobeski.
Id. at 1091.
We agree with the trial court and Court of Appeals that the Johnstons
lacked standing to intervene and adopt and incorporate by reference Part I of
the Court of Appealss opinion addressing that issue.
The essential issue presented to us is the authority of a prosecutor and
a petitioner for post-conviction relief to resolve a post-conviction claim and the
extent of that authority.
We take judicial notice that Indiana prosecutors and petitioners for post-conviction relief do
resolve post-conviction relief claims on terms that include a sentence different than that
imposed at trial (1) prior to adjudication,
See footnote and (2) after adjud
ication but prior
to resolution on appeal.
See footnote There are sound policy reasons that our sy
should permit prosecutors and petitioners for post-conviction relief to agree to resolve post-conviction
relief claims, including facilitating resolution of meritorious, difficult-to-defend, and otherwise complex post-conviction issues;
making efficient use of limited resources; and promoting judicial economy. To further
these policies, we affirm the authority of prosecutors and petitioners for post-conviction relief
to agree to resolve post-conviction relief claims on terms that include a sentence
different than that imposed at trial; and we affirm the authority of post-conviction
courts to accept such agreements.
Likely because it would be rare for there to be appeals from such
agreements, our appellate courts have not addressed whether there are limitations on their
terms. The specific question presented to us by this case is whether
it was permissible for the State to agree to an 80-year executed time
sentence when that sentence was not provided for by statute when Dobeski committed
his 1964 crimes.
As a general rule, the law in effect at the time a defendant
committed a crime controls his or her sentencing. See Smith v. State,
675 N.E.2d 693, 695 (Ind. 1996); Watford v. State, 270 Ind. 262, 264,
384 N.E.2d 1030, 1032-33 (1979).
See footnote On August 31, 1964, when Dobeski committed
these murders, the only penalties prescribed by statute for first-degree murder were death
and life i
mprisonment. See Burns Ind. Stat. Ann. § 10-3401 (1956 Replacement).
Reasoning from the general rule, the Court of Appeals concluded that the
post-conviction court was without authority to approve the settlement agreement because it contained
a sentence not prescribed by § 10-3401.
We will return to this general rule but first examine the law in
effect when Dobeski committed his crimes and find that Indianas sentencing regime
was fundamentally different in 1964 than it is today. C-1
As the Court of Appeals observed, the determinate sentencing system in effect today
was enacted by the legislature in 1977. See Johnston, 702 N.E.2d at
1090; Pub. L. No. 340 § 150 (1977). That legislation reflected the
conclusion of the commission studying the penal code and the General Assembly agreed
that the criminal codes then-existing indeterminate sentencing provisions and procedures should be eliminated.
See William A. Kerr, Forward: Indianas Bicentennial Criminal Code, 10 Ind. L.
Rev. 1, 28 (1976); see also Criminal Offenses, Penalties, and Procedures Study Committee
Meeting Minutes 2 (Apr. 29, 1964) (on file with the Indiana State Archives)
(documenting that the Model Sentencing Act subcommittee recommended that the parole board be
required by statute to establish by administrative decree minimum terms to be served
before a prisoner is eligible for parole); Criminal Code Study Commission Minutes 2
(Apr.25, 1962) (on file with the Indiana State Archives) (documenting that, after hearing
commentary from interested parties and considering the issues over time, the committee unanimously
approved a determinate sentencing law and agreed to prepare the appropriate legislation).
Under the new code, the legislature adopted fixed terms of years for crimes,
including murder, while limiting and clarifying parole options. See Ind. Code §§
35-50-2-3 and 35-50-6-1 (Burns Supp. 1977). The final 1977 code changes collapsed
the distinction between first and second-degree murder, establishing one class of murder that
was punishable by imprisonment of a determinate period of 30 to 60 years,
with a presumptive or standard sentence of 40 years. See Ind. Code
§ 35-50-2-3 (Burns Supp. 1977); see also William A. Kerr, Forward: Indianas New
and Revised Criminal Code, 11 Ind. L. Rev. 1, 8 (1978); Kerr, Forward:
Indianas Bicentennial Criminal Code, 10 Ind. L. Rev. 1, 13. When a
person is sentenced for murder under todays code, a fixed number of years
is specified in the sentencing order.C-2
A prisoner whose crime was committed before the 1977 code took effect could
not benefit from it. It expressly includes a savings clause precluding application
of the new sentencing scheme to penalties incurred before October 1, 1977.
ither the post-1977 criminal code, nor the current sentence modification provisions at
Ind. Code § 35-38-1-17 control our analysis of this case because they were
not in effect at the time Dobeski committed his crimes in 1964.
Instead, we must analyze the 1989 agreement between Dobeski and the prosecutors office
in the context of the sentencing system in effect at the time Dobeski
committed his crimes to repeat, a fundamentally different system from todays.
As the authorities cited above indicate, the pre-1977 criminal code provided for an
indeterminate rather than a determinate sentencing scheme. As such, the amount of
time a prisoner actually served was determined under both formal and informal parole
procedures and rules.
In fact, from 1961 until the criminal code was revised in 1977, the
Indiana parole board was authorized to release on parole, pursuant to the laws
of the state of Indiana, any person confined in any penal or correctional
institution in this state except persons under sentence of death. Burns
Ind. Stat. Ann. § 13-1609 (Supp. 1961) (originally enacted as Pub. L. No.
343 § 9 (1961)). The parole board was to
. . . . conduct hearings at each correctional institution at such time
as may be necessary for a full study of the cases of prisoners
eligible for release on parole and to determine when and under what conditions
and to whom parole may be granted . . . .
Viewing the pre-1977 sentencing and parole statutes as a whole, it is clear
that even though two consecutive life sentences were imposed on Dobeski, the period
of confinement was indeterminate, subject to adjustment through the parole process. Said
differently, the pre-1977 sentencing and parole statutes could have operated to provide that
Dobeskis original period of confinement would be modified to one equal to that
provided in the settlement agreement.
Our review of the parole boards minutes from 1962-1973 indicates that parole was
authorized for 273 inmates serving life sentences at the Indiana State Prison during
those years. The average term served by those 273 prisoners before parole
was authorized was 19.4 years; only five of them served 40 years or
more before parole was authorized.
Minutes of the Indiana Parole Board 1962-1973
(on file with the Indiana State Archives).D
We recognize and adhere to the general rule that the law in effect
at the time a defendant committed a crime controls his or her sentencing.
But none of the cases in which this rule has been cited
involve a court considering an agreement tendered jointly by the State and a
petitioner for post-conviction relief that, among other things, includes a se
ntence different than
that imposed at trial. The question remains whether it is a rule
that prevents us from affirming the agreement the State made with Dobeski.
We conclude that the State should be held to the agreement it made
with Dobeski in 1989 for the following reasons. First, affirming the agreement
furthers as a general matter the interests identified above facilitating resolution of
meritorious, difficult-to-defend, and otherwise complex post-conviction issues; making efficient use of limited resources;
and promoting judicial economy. Some if not all of these considerations were
undoubtedly at work in this case. Second, as part of the agreement,
Dobeski dismissed his claim for post-conviction relief with prejudice. We see reviving
this claim now, almost a decade later, highly problematic for all concerned.
Third, the original life sentences had been imposed under an indeterminate sentencing regime
that expressly provided for later review. Fourth, practice under the indeterminate sentencing
system regularly authorized parole from life sentences after periods of time much less
than the revised sentence in this case. Fifth, the sentence provided for
in the agreement here corresponds to consecutive presumptive terms under the sentencing regime
in effect at the time the agreement was approved.
We recognize that this Court has previously said that it requires an exercise
of administrative and not judicial power to reduce indeterminate sentences. Dowd v.
Basham, 233 Ind. 207, 212, 116 N.E.2d 632, 635 (1954). But that
was in the context of a prisoners attempt to have his sentence reduced
as against opposition from the State. Here, the administrative branch of government
acting through the county prosecutor, as part of an effort to resolve and
conclude litigation, sought court approval of an agreement that, among other things, included
a sentence different than that imposed at trial. We hold it to
be within the judicial power to dismiss the litigation on this basis.
Having previously granted transfer, we now (1) adopt and incorporate by reference Part
I of the Court of Appealss opinion denying the Johnstons legal standing to
intervene; and (2) affirm the post-conviction courts acceptance of the 1989 agreement between
the State and Dobeski.
DICKSON, BOEHM, and RUCKER, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE STATE
Donald W. Pagos Karen M. Freeman-Wilson
Michigan City, Indiana Attorney General of Indiana
Deputy Attorney General
ATTORNEY FOR APPELLEE DOBESKI
J. David Keckley
South Bend, Indiana
SUPREME COURT OF INDIANA
JAMES JOHNSTON AND )
JUDY JOHNSTON, )
Appellants (Intervenors Below))
v. ) in the Supreme Court )
RICHARD ALAN DOBESKI, ) 64A04-9801-PC-32
) in the Court of Appeals
Appellee (Petitioner Below), )
STATE OF INDIANA, )
Appellee (Respondent Below). )
APPEAL FROM THE PORTER CIRCUIT COURT
The Honorable Donald D. Martin, Special Judge
Cause No. 64-PCCR-105
November 22, 2000
SHEPARD, Chief Justice, dissenting.
It has long been bedrock law that the sentence for a crime is
the sentence in existence when the crime was committed, unless it is apparent
that the legislature intended to ameliorate the criminal law and give perpetrators a
retroactive benefit. See, e.g., Taylor v. State, 681 N.E.2d 1105, 1112 (Ind.
1997). As the majority indicates, the General Assembly expressly precluded application of
the 1997 sentencing scheme to persons who committed crimes before October 1, 1977.
Slip op. at 8.
In Landaw v. State, 258 Ind. 67, 68, 279 N.E.2d 230, 231 (1972)
we held that [i]t is clearly within the sole power of the Legislature
to fix the punishment for crimes, and this Court has no power to
alter that legislative determination. We have specifically upheld the constitutional authority of
the legislature to make sentencing changes prospective only. Parsley v. State, 273
Ind. 46, 401 N.E.2d 1360 (1980), cert. denied, 449 U.S. 862 (1980).
I conclude that the trial court therefore had no authority to modify Dobeskis
sentence in a manner that ignored the legislatures decision to make the 1977
sentencing scheme prospective only. The fact that the court acted upon an
agreement of the parties seems to me not to affect the courts power.
In effect, the trial court granted parole, but, of course, parole is
not within a courts domain.
I think todays decision both impinges on the distribution of powers dictated by
the Indiana Constitution and untethers us from long-established law. I am concerned
about where this arrow, once shot in the air, may come to ground.
See, for example, State ex. rel. Woodford v. Marion Superior Court, 655
N.E.2d 63, 64-65 (Ind. 1995), where a post-conviction relief petitioner and an outgoing
prosecutor had submitted an agreement asking the court to set aside petitioners life
sentence and impose a sentence of 50 years with ten years suspended to
probation. The issue in Woodford was whether the petition needed authorization under
Ind. Post-Conviction Rule 1(10). Neither this Court nor any of the parties
challenged the ability of the State and the petitioner to negotiate such an
agreement, or the post-conviction courts authority to accept or reject the agreement.
See, e.g., McCollum v. State, No. 45S00-9403-PD-228, CCS entry 4/29/99, at p.
6; and Townsend v. State, No. 45S00-9403-PD-227, CCS entry 4/29/99, at p.
7 (Prisoners who both were sentenced to death for two murders filed separate
post-conviction petitions which were denied; petitioners appealed the denial to this Court; prior
to our issuing of a decision in either case, the post-conviction court accepted
agreements between both petitioners and the State to re-sentence each petitioner to two
consecutive 60-year sentences).
An exception not applicable in this case to this rule
occurs when the legislature amends the statute that was in force at the
time of the offense, the amendment takes effect prior to sentencing, and the
amendment provides for an ameliorative penalty. See Elkins v. State, 659 N.E.2d
563, 565 (Ind. Ct. App. 1995).
The savings clause provides:
Neither this act nor Acts 1976, P.L. 148 affects:
(1) rights or liabilities accrued;
(2) penalties incurred; or
before October 1, 1977. Those rights, liabilities, and proceedings are continued, and
penalties shall be imposed and enforced as if this Act and Acts 1976,
P.L. 148 had not been enacted.
(b) An offense committed before October 1, 1977, under a law repealed by Acts
1976, P.L. 148 shall be prosecuted and remains punishable under the repealed law.
Pub. L. No. 341 § 150 (1977).
The minutes do not reflect cases in which parole was rejected for
prisoners serving life sentences. A study of parole in Indiana indicates that
in 1965, 50.8% of all inmates at the Indiana State Prison had their
parole requests denied or continued; 36.9% were paroled to supervision; 7.5% were paroled
and discharged; and 4.8% were paroled on other terms. National Council on
Crime and Delinquency, Corrections in Indiana 8.10 (1967).
See, e.g., Smith, 675 N.E.2d at 695; Watford, 270 Ind. at 264,
384 N.E.2d at 1032.
Because of the presence of all of these factors here, we hold
this situation distinct from that in challenges to plea agreements in cases like
Lighty v. State, 727 N.E.2d 1094 (Ind. Ct. App. 2000) and Sinn v.
State, 609 N.E.2d 434 (Ind. Ct. App. 1993).