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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER JEFFREY A. MODISETT
Public Defender of Indiana Attorney General of Indiana
PATRICK R. RAGAINS JOHN B. HERRIMAN
Special Deputy Public Defender Deputy Attorney General
Anderson, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
STEVEN MOREDOCK, )
vs. ) No. 49A02-9707-PC-455
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex Murphy, Judge Pro Tempore
Cause No. CR78-414A
April 3, 1998
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Steven Moredock appeals the denial of his petition for post-conviction relief. We
Moredock was charged with committing an attempted robbery (a class C felony) on
December 21, 1978. On March 19, 1979, Moredock entered a plea of guilty to attempted
theft, a class D felony, pursuant to a plea agreement. Under the plea agreement, Moredock
would serve a two year sentence for attempted theft concurrent to his time on a pending
probation revocation proceeding.
In 1997, Moredock filed the instant petition for post-conviction relief, his second.See footnote
Moredock claimed that his 1979 sentence -- by being concurrent with the time he would be
ordered to serve for his then-pending probation violation -- violated the Indiana statute
requiring that a sentence for an offense committed subsequent to an offense for which one
is serving a current sentence must be served consecutively to the sentence for the earlier
offense. See Ind.Code 35-50-1-2. According to Moredock, Golden v. State, 553 N.E.2d
1219 (Ind. Ct. App. 1993), trans. denied, and Thompson v. State, 634 N.E.2d 775 (Ind. Ct.
App. 1994), required that his 1979 sentence be set aside.
The post-conviction court denied his petition after first finding that (1) the State's
concurrent sentencing recommendation was obtained "through negotiations to which
[Moredock] was a party," and (2) Moredock's 1979 sentence was consistent with the terms
of the parties' written plea agreement. (R. 107). DECISION
Moredock reasserts the above argument on appeal. He concedes that "he got the
sentence he bargained for," but insists that Golden requires an "illegal sentence" to be
corrected. Moredock's Brief at 7. He fails to discuss Golden or explain how its reasoning
applies to his argument. We do not find Golden apposite to Moredock's particular claim here
in that Golden did not concern a plea agreement regarding the sentence.
We find his continued reliance on Thompson to be flawed for purposes of application
here in that the sentence imposed pursuant to Thompson's plea agreement was improperly
ordered to run consecutive to another sentencing for another charged crime. We cannot
accept his contention that "Thompson involves precisely the same issue as in the instant
case," Id. at 9, for one critical reason: Thompson suffered the harm of a sentence improperly
ordered to be served consecutively. Moredock did not suffer any harm by being sentenced
to serve concurrent instead of consecutive time; rather, he benefitted from being able to serve
the time concurrently. We have said that even error of constitutional dimension does not
necessarily require reversal but that "in addition to error, a party must also make some
showing of injury or prejudice resulting from the error." Joseph v. State, 603 N.E.2d 873,
875 (Ind. Ct. App. 1992). See also White v. State, 497 N.E.2d 893 (Ind. 1986) and McKrill
v. State, 452 N.E.2d 946 (Ind. 1983). Moredock has not shown us how he was prejudiced
by being ordered to serve his 1979 sentence concurrent to that for his pending probation
Moredock "failed to convince" the post-conviction court "that any error in his
sentence . . . constitute[d] a basis for sentencing him anew." (R. 109). Moredock bore the
burden of establishing the grounds for his relief by a preponderance of the evidence. See
Weatherford v. State, 619 N.E.2d 915, 916 (Ind. 1993). To prevail on appeal from the denial
of post-conviction relief, he must demonstrate that the evidence as a whole leads unerringly
and unmistakably to a conclusion opposite that reached by the post-conviction court. See Id.
The post-conviction court's conclusion that he failed to do so is not clearly erroneous.
SHARPNACK, C.J., and HOFFMAN, J., concur.
The record merely indicates that Moredock challenged his guilty plea as being involuntarily and
unintelligently entered and that we affirmed the denial of his first petition in a 1988 memorandum decision.
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