FOR PUBLICATION

ATTORNEY FOR APPELLANTS:    ATTORNEYS FOR APPELLEE
             STATE OF INDIANA:
DONALD W. PAGOS    
Sweeney, Dabagia, Donoghue,     JEFFREY A. MODISETT
Thorne, Janes & Pagos     Attorney General of Indiana
Michigan City, Indiana    
            GREG ULLRICH
            Deputy Attorney General
            Indianapolis, Indiana

            ATTORNEY FOR APPELLEE
            DOBESKI:

             J. DAVID KECKLEY
            South Bend, Indiana

JAMES JOHNSTON and JUDY JOHNSTON,    )
    Appellants-Intervenors,           )
                                      )
and RICHARD ALLEN DOBESKI,            )
    Appellee-Defendant,               )    

No. 64A04-9801-PC-32
                 

                                      )
        vs.                           )
                                      )
STATE OF INDIANA,                     )
    Appellee-Plaintiff.               )

The State prosecuted Dobeski during the original trial, and both are parties to the sentence modification agreement that is the basis for the Johnstons' appeal. The Johnstons cite no cases or statutes to support their claim of standing, nor has this Court discovered any authority that would enable them to intervene and mount a legitimate appeal.

State for the first time on appeal." See footnote 3 Abron v. State, 591 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans. denied.
    It may be argued that the issue of Dobeski's sentence modification would never have been presented to this Court but for the Johnstons' appeal, for which they can claim no standing. However, "a court of review cannot ignore a fundamental error which is apparent on the face of the record, such as an incorrect sentence." Kleinrichert v. State, 260 Ind. 537, 543, 297 N.E.2d 822, 826 (1973). To attain the level of fundamental error, "'the error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively.'" Turner v. State, 682 N.E.2d 491, 497 (Ind. 1997). Fundamental error may encompass illegal sentences in violation of express statutory authority, as the State has alleged in this case. Thompson v. State, 634 N.E.2d 775, 777 (Ind. Ct. App. 1994). Although the issue of fundamental error is primarily raised by defendants attacking purportedly illegal sentences, correction of fundamental error is not intended for the advantage of the accused. Moon v. State, 267 Ind. 27, 29, 366 N.E.2d 1168, 1169 (1977). Finally, "[i]t is the duty of appellate courts to bring illegal sentences into compliance . . . 'even if such correction increases the punishment.'" Golden v. State, 553 N.E.2d 1219, 1223-1224 (Ind. Ct. App. 1990), trans. denied, quoting United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir. 1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987).

1-17. We first note that the court did not comply with subsection (b) of the statute, having failed to give notice to the Johnstons of its order to reduce Dobeski's sentence. Next, there is no evidence that the court obtained a report from the department of correction concerning Dobeski's conduct while imprisoned pursuant to IND. CODE § 35-38-1-17(a)(3). Most importantly, the court had no authority to modify Dobeski's sentence under any sentencing scheme other than that effective in 1964, when Dobeski committed his crimes. Cf. Elkins v. State, 659 N.E.2d 563, 565 (Ind. Ct. App. 1995) (defendant must be sentenced "in accordance with the statute in force at the time the offense was committed unless an amendment to the statute is effective prior to sentencing and the amendment provides for an ameliorative penalty").
    In 1964, the only sentences authorized for murder in the first degree were death and life imprisonment. IND. CODE § 10-3401 (1956). Furthermore, Pub. L. No. 341 § 150 (1977) expressly provides that the 1977 sentencing statutes do not affect the "rights or liabilities accrued[,] penalties incurred[,] or proceedings begun before October 1, 1977." See Parsley v. State, 273 Ind. 46, 47-48, 401 N.E.2d 1360, 1361 (1980), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79 (1980). "A sentence which is contrary to, or violative of, the penalty mandated by the applicable statute is an illegal sentence." Lockhart v. State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996). As noted above, "a trial court's failure to sentence a defendant in accordance with statutory requirements constitutes fundamental error." Abron, 591 N.E.2d at 638. Therefore, the trial court committed fundamental error in modifying Dobeski's sentence to two consecutive 40-year terms.

JAMES JOHNSTON and JUDY JOHNSTON,    )
            )
    Appellants-Intervenors,    )
            )
and RICHARD ALLEN DOBESKI,    )
            )
        vs.    )    No. 64A04-9801-PC-32
            )
STATE OF INDIANA,    )
            )
    Appellee-Plaintiff.    )

SULLIVAN, Judge, concurring

    I concur in the majority's conclusion that the trial court erred in modifying the sentences originally imposed. I agree that the State was always a party to the various proceedings and for that reason has standing to question the validity of the sentence modification, even though that modification was made pursuant to an agreement between the county prosecutor's office and the defendant. In doing so, however, I do not join all of the analyses set forth by the majority in reaching its conclusions.
    I do wholeheartedly agree that there is a meaningful distinction between “void” and “voidable” judgments, particularly as those terms are applied to judgments entered despite

various jurisdictional defects. However, I do not agree that every jurisdictional defect, whether the issue is jurisdiction of the subject matter, jurisdiction of the person, or jurisdiction of the particular case, renders the judgment absolutely “void” ab initio, as opposed to “voidable”.     Although there are several cases which use, inadvertently I believe, the term “void as opposed to voidable, the distinction remains important, particularly with regard to questions of waiver by the challenging party and questions of when such a challenge may be made.
    To be sure, in Beanblossom v. State (1994) Ind.App., 637 N.E.2d 1345, a sentence modification case, a panel of this court drawing from Christakis v. State (1986) Ind.App., 493 N.E.2d 471 used the term “void” with reference to a judgment entered when the trial court had jurisdiction of the subject matter and jurisdiction over the parties, but when the court had lost jurisdiction over the particular case. In Christakis, the trial court lost jurisdiction of the particular case and therefore lacked the authority to grant “shock probation” after the expiration of the statutory time period for such action. See also Shotwell v. Cliff Hagan Ribeye Franchise, Inc. (1991) Ind., 572 N.E.2d 487, 489 (default judgment entered despite absence of personal jurisdiction due to ineffective service of process held “void”.); Underhill v. Franz (1951) 230 Ind. 165, 173, 101 N.E.2d 264 (judgment held “void” in part as to relief granted which exceeded statutory authority although court had jurisdiction of the subject matter, the particular case and the parties); Chapin v. Hulse (1992) Ind.App., 599 N.E.2d 217 (distinction between void and voidable judgments acknowledged but held reconsideration of denial of a motion to correct errors and setting aside of an earlier judgment

was “void” and therefore subject to collateral attack); Bolerjack v. Forsythe (1984) Ind.App., 461 N.E.2d 1126 (relief granted by judicial review court reversing an administrative decision exceeded it's prerogative and was “void”).
    These cases, whether inadvertently or not, may be viewed in isolation as having obliterated the distinction among and between jurisdiction of the subject matter, jurisdiction of the person, and jurisdiction of the particular case. While at first blush such “simplification” may seem to confer a benefit in making all jurisdictional issues subject to the same legal and procedural analysis, one might reasonably conclude that myriad traps and unknown problems lie ahead. For instance, if all judgments, entered notwithstanding some jurisdictional defect, are “void,” such defects could never be deemed waived. Furthermore, any judgment entered notwithstanding some jurisdictional defect, whether minor or not, whether procedural or substantive, will be subject to collateral attack without regard to time constraints. Such state of the law would seem to disavow our traditional concept that at some point in time judgments achieve a degree of finality.
    Notwithstanding such cases, firmly fixed principles of jurisdiction with respect to issues of judgment finality and waiver of error are found in other judicial pronouncements which extend back many decades and continue to be made today.
    In Farley v. Farley (1973) Ind.App., 300 N.E.2d 375, the court acknowledged the long-standing distinction between jurisdiction of the subject matter and jurisdiction of the particular case and noted that only the latter is waived by a party who does not present the question in a timely fashion. Subsequently, the court in Trook v. Lafayette Bank and Trust

Co. (1991) Ind. App., 581 N.E.2d 941, 944-945 trans. denied, stated the issue and governing principles as follows:
    "Case law, both in Indiana and elsewhere, seems frequently to use the terms 'void' and 'voidable' interchangeably, without due regard for the technical--but nonetheless important--difference between their meanings.
        '[V]oid in the strict sense means that an instrument or transaction is nugatory and ineffectual so that nothing can cure it; voidable exists when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it.' (Emphasis in original) Black's Law Dictionary 812 (abridged 5th ed. 1983).
    'Void' therefore may properly be used only when the action or subject matter it describes is of no effect whatsoever, and is incapable of confirmation or ratification. 'Voidable,' on the other hand, describes an action or subject matter which nonetheless operates to accomplish the thing sought to be accomplished, until the fatal flaw is judicially ascertained and declared. However, a court sometimes uses the term 'void' when the effect of its holding indicates that the action or subject matter it describes is really voidable--that is, capable of ratification or confirmation. See, e.g., Jessup v. Jessup (1897) 17 Ind.App. 177, 46 N.E. 550.
        Into this analysis we inject the term 'void ab initio,' which means literally 'void from the beginning' and denotes an act or action that never had any legal existence at all because of some infirmity in the action or process. It is readily apparent that 'void ab initio' has essentially the same meaning as 'void.' In fact, 'void ab initio' is perhaps preferable because it more vividly underscores that concept which represents the significance of the difference between the term 'voidable' and the terms 'void' and 'void ab initio': the former describes an act or subject matter that, although flawed in some respect, is not beyond retrieval; the latter describe an act whose flaw renders the act irretrievable and without effect.
        Nowhere is the distinction between 'void' and 'voidable' more clearly brought into focus than in the area of jurisdiction. There are three jurisdictional elements in every action: jurisdiction of the subject matter; jurisdiction of the person; and jurisdiction of a particular case. State ex rel. Public Service Commission v. Johnson Circuit Court (1953) 232 Ind. 501, 112 N.E.2d 429. A judgment rendered by a court without jurisdiction to hear that particular case is voidable because the jurisdictional defect is waivable if not attacked by a timely appeal. D.L.M. v. V.E.M. (1982) 1st Dist. Ind.App., 438 N.E.2d 1023. On the other hand, lack of subject matter jurisdiction renders void any action undertaken by the court because the defect is not susceptible

to waiver or cure. Behme v. Behme (1988) 1st Dist. Ind.App., 519 N.E.2d 578. Regrettably, the label which courts attach to actions involving defects in personal jurisdiction has occasionally been misapplied."        
    
    In Greer v. State (1997) Ind., 685 N.E.2d 700, 704, our Supreme Court noted that subject matter jurisdiction “can never be waived,” while jurisdiction over a particular case “is waivable if not raised at the earliest possible opportunity.” The court, however, held that failure to timely file a praecipe for appeal in a criminal case concerned jurisdiction of the particular case and had been waived by the State, but that an attempted belated appeal of a denial of credit time as against the sentence imposed, under P. C. 2, involved subject matter jurisdiction because the P. C. Rule deals with appeals from “the conviction.” The decision of the Court of Appeals upon the merits of the belated appeal was therefore held to be “void.” But see Dixon v. Siwy (1996) Ind.App., 661 N.E.2d 600, in which this court expressed the view that in the medical malpractice context, the trial courts have “subject matter” jurisdiction over the “class” of cases, i.e. medical malpractice claims, but that absent an opinion by the medical malpractice panel as required by statute, the court lacks jurisdiction over that particular case. The two cases would seem to be in some disagreement as to when a statutory or binding judicial rule, establishing a procedural prerequisite or condition for the exercise of jurisdiction, involves subject matter jurisdiction and when it involves jurisdiction of the particular case.
    Most recently, our Supreme Court in Stidham v. Whelchel (1998) Ind., 698 N.E.2d 1152, 1154, observed that “[t]he distinction between a void and voidable judgment is no mere semantic quibble,” citing and discussing some of the cases herein noted. In its final

conclusion, however, the court held as follows: “[A] judgment rendered without personal jurisdiction over an indispensable party is void as to that party.” Id. at 1157 (emphasis supplied). By its qualifying language, restricting the effect of the judgment to the particular party involved, I can only construe the holding in Stidham to say that such a judgment is voidable rather than void.
     While I am of the view that the judgment here falls within the traditional category of "voidable" judgments, because the State was and is a party with standing to challenge the judgment, I would hold that the failure of the State, in the person of the deputy prosecutor, to earlier oppose the sentence modification did not constitute a waiver of the prerogative to challenge the trial court's authority to revise Dobeski's sentence. Further, I would hold that this challenge is timely notwithstanding that it appears to be in the form of a collateral attack. In so stating, I recognize that I have arguably placed this “voidable” judgment in a special category, making it the functional equivalent of a “void” judgment and, in doing so, have consciously ignored the very bases for distinguishing between void and voidable judgments. I have also perhaps added validity to the “simplification” approach mentioned above which places all judgments infected with jurisdictional defects in the "void" category. Be that as it may, the dilemma perhaps may be best resolved by a future decision from our highest court.
    

    The distinction between a void and voidable judgment is no mere semantic quibble. 'A void judgment is one that, from its inception, is a complete nullity and without legal effect. . . .' 46 Am.Jur.2d Judgments § 31 (1994). By contrast, a voidable judgment 'is not a nullity, and is capable of confirmation or ratification. Until superseded, reversed, or vacated it is binding, enforceable, and has all the ordinary attributes and consequences of a valid judgment.' 46 Am.Jur.2d Judgments § 30 (1994).

Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). In the instant case, the trial court's lack of authority to accept Dobeski's sentence modification agreement rendered its judgment void and therefore subject to direct or collateral attack at any time. See Beanblossom, 637 N.E.2d at 1349.

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