Evans v. State

320 N.E.2d 781 (1974)

Oliver Larue EVANS, Appellant, v. STATE of Indiana, Appellee.

No. 2-373A58.

Court of Appeals of Indiana, Second District.

December 26, 1974.

*782 Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Petitioner-appellant (Evans) appeals from a denial of his Petition for Post-Conviction Relief, Ind. Rules of Procedure, P.C. 1, contesting the validity of his sentence.

We affirm.

On January 21, 1969, Evans was convicted of robbery, IC 1971, XX-XX-X-X, Ind. Ann. Stat. § 10-4101 (Burns' 1956), following a trial by jury, and was sentenced on January 30, 1969, to a period of not less than ten nor more than twenty-five years at the Indiana State Reformatory.

Evans filed a Petition for Post Conviction Relief on July 19, 1972, attacking his sentence on constitutional and statutory grounds. Thereafter, on September 20, 1972, following a post-conviction relief hearing, the trial court corrected, nunc pro tunc, the sentence to an indeterminate sentence of not less than ten nor more than twenty years, and ruled against Evans on all other issues.

On appeal, Evans asserts two issues:

(1) That the modified sentence of ten to twenty years for robbery constitutes cruel and unusual punishment and that the proper sentence is a ten year determinate sentence. (2) That, since the robbery statute was constitutionally invalid, imposition of any sentence under the statute is error. I MODIFIED SENTENCE NOT CONSTITUTIONALLY INVALID

The rationale underlying Evans' first argument is that a ten to twenty year indeterminate sentence for robbery is greater than the ten to twenty year determinate sentence which at the time was specified for armed robbery,[1] because considering the minimum duration of imprisonment, one serving a determinate sentence may be discharged sooner than one serving an indeterminate sentence. Evans thus argues that the robbery sentence is disproportionate to the crime of robbery, a lesser offense included within the crime of armed robbery and therefore invalid under Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815.

This contention has been previously made and rejected. We again reject it. Dotson v. State (1972), Ind., 282 N.E.2d 812; Davis v. State (1973), Ind. App., 297 N.E.2d 450; Barbee v. State (1973), Ind. App., 296 N.E.2d 884.

II SENTENCE IMPOSED NOT ERROR

Evans' contention that rendition of any sentence under an "unconstitutional" statute (i.e., IC 1971, XX-XX-X-X, supra) constitutes error was recently rejected by *783 this court in Goodlow v. State (December 19, 1974), Ind. App., 319 N.E.2d 866, relying upon Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230. We again reject it.

Judgment affirmed.

BUCHANAN and WHITE, JJ., concur.

NOTES

[1] Ind. Ann. Stat. § 10-4709 prior to amendment by Acts 1960, Ch. 206, § 1.