Kendrick v. State , 1988 Ind. LEXIS 307 ( 1988 )

DeBRULER, Justice.

Appellant Kendrick brought his appeal of a judgment denying post-conviction relief in the form of permission to withdraw a plea of guilty. The Court of Appeals affirmed the judgment in Kendrick v. State (1988), Ind.App., 517 N.E.2d 810. Appel lant's petition to transfer is now granted.

Appellant entered his plea of guilty to one of several counts pending in a single cause in the Marion County Superior Court, Division One. The plea was made as part of a plea agreement which disposed of all counts in that single cause. At the time of the plea of guilty there were other charges pending against appellant in another division of the Marion County Superior Court, but these charges were not noted in the plea agreement or the plea proceeding in Division One. The Court accepted the plea but did not advise appellant of the possibility of consecutive sentences, an advisement prescribed by I.C. § 85-4.1-1-8(d) [Burns 1979], now I.C. § 385-85-1-2(a)(8). He received a single eight year term of imprisonment.

Following the imposition of sentence in Division One, appellant entered his plea of guilty to the other pending charges, and pursuant to another plea agreement received two sentences to run consecutive to one another and consecutive to the sentence of eight years given in Division One noted above.

Appellant sought to withdraw the plea of guilty made in Division One because of the lack of an advice that as a consequence of the plea he would face the possibility that later sentences in the other division of the Superior Court could be ordered served consecutive to the one he would then be serving.

Trial courts, in the absence of ex- . press statutory authority, cannot order consecutive sentences, i.e., the commencement of a sentence cannot, in the absence of express statutory authority, be postponed. Baromich v. State, (1969) 252 Ind. 412, 249 N.E.2d 30.

The authority to postpone the commencement of a sentence, i.e., to order consecutive sentences, is granted by IC. § 35-50-1-2. That part of the statute upon which appellant must premise his claim states:

"...the court shall determine whether terms of imprisonment shall be served concurrently or consecutively."

1.C. § 35-50-1-2(a). This provision, apart from the mandatory duty to give consecutive sentences in specified circumstances set out in I.C. § 35-50-1-2(b), grants a general discretionary authority to the trial court to order consecutive sentences whenever such an order is justified by sufficient reason which must be articulated. Shippen v. State (1985), Ind., 477 N.E.2d 903.

The language employed in Section (a) above by the legislature is restrictive. The general authority is limited to those occasions when a court is meting out two or more terms of imprisonment. If a court is contemporaneously imposing two or more sentences, it is granted the general statutory authority to order them to be served consecutive to one another. Section (a) does no more than this.

In the case on appeal, the Division One sentencing court was imposing a single sentence upon a plea of guilty to one of several counts, upon a plea agreement which called for a single sentence. There was therefore no occasion for the exercise of the general authority to order consecutive sentences granted by IC. § 35-50-1-2(a) See Stockey v. State (1987), Ind., 508 N.E.2d 793. Frazier v. State (1987), Ind.App., 512 N.E.2d 215. Furthermore, and most importantly here, there would at a later time in the future, when sentencing upon the other pending charges, in the absence of some agreement between the defense and prosecution, be no oceasion for the exercise of that same authority.

Thus the trial court below in the post-conviction proceeding was correct in concluding as a matter of law that there was no possibility of consecutive sentences arising as a result of appellant's plea of guilty while other charges pended against him. Consequently the lack of an advisement of such non-existent possibility could not impact the decision to plead guilty. White v. State (1986), Ind., 497 N.E.2d 893. Appellant's choice to plead guilty was not unknowing or involuntary as a result of the absence of an advice by the trial court regarding the possibility of consecutive sentences.

The judgment denying post-conviction relief is affirmed.

SHEPARD, C.J., and DICKSON, J., concur. PIVARNIK, J., concurs in result with separate opinion in which GIVAN, J., concurs.