Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Appellant (Respondent below),
STATE OF INDIANA, Appellee (Petitioner below ).
) Supreme Court No.
December 18, 2002
On April 27, 2000, the State filed a Notice of Probation Violation, alleging
three violations. Two additional alleged violations were subsequently added.
A probation revocation hearing was held on May 30, 2001. At the
hearing, Schlichter admitted that he violated the conditions of his probation. On
August 1, 2001, the trial court revoked Schlichters probation and reimposed the previously
suspended sentence of six years and 254 days.
On appeal, Schlichter did not challenge the revocation of his probation. Instead,
he argued that the original trial courts imposition of consecutive sentences for the
two forgery counts constituted an illegal sentence.
The Court of Appeals agreed and reversed the trial court. Schlichter v.
State, 766 N.E.2d 801 (Ind. Ct. App. 2002). Having previously granted transfer,
thereby vacating the Court of Appeals opinion, we now affirm the trial court.
As noted above, Schlichter appeals from the trial courts decision revoking his probation.
However, he does not challenge the trial courts ruling. Instead, he
contends that the original sentence imposed was illegal because it included consecutive sentences
for the two counts of forgery. This was impermissible, Schlichter argues, because
the two counts arose from a single episode of criminal conduct and the
legislature has prohibited the use of consecutive sentences in such instances. Ind.
Code § 35-50-1-2.
Schlichter could have challenged the permissibility of his sentence under the consecutive sentencing
statute by appealing his sentence when it was imposed. Cf. Harris v.
State, 749 N.E.2d 57 (Ind. Ct. App. 2001), trans. denied, 761 N.E.2d 414
(Ind. 2001) (table). To the extent that he believed that it was
imposed as a consequence of the ineffective assistance of his trial counsel or
that he had other grounds for collateral relief, he could have challenged the
sentence by filing a petition for post-conviction relief. Cf. Smith v. State,
770 N.E.2d 290 (Ind. 2002). However, the issue of the permissibility of
his sentence under the consecutive sentencing statute was not before the trial court
in this probation revocation proceeding and he has no basis to raise the
issue in an appeal from his probation revocation.
The Court of Appeals cited several cases in its opinion as authority for
deciding the issue, see 766 N.E.2d at 803-04, but we do not find
them to be on point. Each involves the authority of the court
on appeal to review a sentencing claim in either a direct appeal or
an appeal in a post-conviction proceeding. None involves the procedural setting herean
appeal from a probation revocation.
Our direct appeal and post-conviction procedures make clear the relative responsibilities of trial
and appellate courts and the relative burdens of the parties. When litigation
occurs outside those parameters, those responsibilities and burdens can become blurred. Such
a blurring is illustrated by this case. Whether certain offenses constitute a
single episode of criminal conduct is a fact-intensive inquiry that a trial court
should pass upon first before it is subject to appellate review. That
has not taken place here. In fact, Schlichter himself acknowledges that [a]t
the original sentencing, [the presiding judge] raised the issue of the propriety of
consecutive sentences [on the two forgery counts] since the offenses appeared to be
a single episode of conduct. Counsel for defendant Schlichter agreed to waive
the issue . . . . Brief of Appellant, at 6 (citation
to record omitted). Before appellate review of the single episode claim is
appropriate, there should be a factual analysis of the claim by a trial
court and, quite possibly, a demonstration as to why the claim is available
at all given that Schlichter agreed to waive the issue.
See footnote It is
for this reason that we must insist that Schlichter seek relief either through
a direct a
ppeal of his sentence or a petition for post-conviction relief.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.