Johnston v. Dobeski

Attorney for Appellants

Donald W. Pagos
Sweeney, Dabagia, Donoghue,
Thorne, Janes & Pagos
Michigan City, Indiana
Attorneys for Appellee State

Jeffrey A. Modisett
Attorney General of Indiana

Greg Ullrich
Deputy Attorney General
Indianapolis, Indiana

Attorney for Appellee Dobeski

J. David Keckley
South Bend, Indiana

IN THE
INDIANA SUPREME COURT

JAMES JOHNSTON and
JUDY JOHNSTON,
Appellants (Intervenors below),

v.

RICHARD ALLEN DOBESKI,
Appellee (Petitioner below),

and

STATE OF INDIANA,
Appellee (Respondent below).

)
) Supreme Court No.
) 64S04-9902-PC-140
)
) Court of Appeals No.
) 64A04-9801-PC-32
)
)
)
)
)
)
)
)

APPEAL FROM THE PORTER CIRCUIT COURT
The Honorable Donald D. Martin, Special Judge
Cause No. 64-PCCR-105

ON PETITION TO TRANSFER

November 22, 2000

SULLIVAN, Justice.

In 1964, sixteen-year-old Richard Dobeski murdered two children. He
received consecutive life sentences under the indeterminate sentencing
system in effect at the time. In 1989, the State agreed to reduce the two
life sentences to two consecutive 40-year terms in return for Dobeski
agreeing to dismiss his claims for post-conviction relief. This appeal
challenges the validity of that agreement, which we affirm.

Background

On August 31, 1964, Richard Allen Dobeski, at sixteen years of age,
murdered James and Judy Johnston’s two minor children. The sentence for
murder in effect at the time was an indeterminate term of life, subject to
parole. Burns Ind. Stat. Ann. § 10-3401 (1956 Replacement). Accordingly,
the trial court sentenced Dobeski to two consecutive life terms of
imprisonment. In January, 1985, Dobeski filed a petition for post-
conviction relief, alleging violations of his constitutional rights during
his trial. On July 10, 1989, Dobeski and the State entered into a court-
approved agreement in which Dobeski agreed to dismiss his petition for post-
conviction relief with prejudice, and the State agreed that Dobeski’s
original sentences would be modified “to a sentence of forty (40) years on
each [murder] count to be served consecutively with credit for time
served.” The local prosecutor’s office did not notify the Johnstons of
this agreement and they remained unaware of it until a friend informed them
that notice of a parole hearing for Dobeski appeared in the local
newspaper.
On May 14, 1997, the Johnstons asked the post-conviction court to
allow them to intervene and to vacate the 1989 agreement between the State
and Dobeski, on grounds that it was illegal and did not comply with Indiana
law governing sentence modification. The trial court conducted hearings on
the Johnstons’ requests on June 27, 1997, and October 3, 1997. On October
7, 1997, Dobeski asked the court to dismiss the Johnstons’ motions. On
October 9, 1997, the trial court granted Dobeski’s request and dismissed
the Johnstons’ motions, finding that they lacked legal standing to
challenge Dobeski’s agreement with the State. The Johnstons appealed.

On appeal, the State changed its position and sided with the
Johnstons, arguing that the trial court had no authority to accept an
agreement for a sentence less than a life sentence on either murder
conviction. The Court of Appeals agreed with the trial court that the
Johnstons lacked standing to intervene, but held that the trial court had
committed fundamental error in modifying Dobeski’s sentence to two
consecutive 40-year terms because “[i]n 1964, the only sentences authorized
for murder in the first degree were death and life imprisonment.” Johnston
v. State, 702 N.E.2d 1085, 1090 (Ind. Ct. App. 1998). The Court of Appeals
vacated the 1989 agreement between the State and Dobeski. Id. at 1091.

Discussion

I

We agree with the trial court and Court of Appeals that the Johnstons
lacked standing to intervene and adopt and incorporate by reference Part I
of the Court of Appeals’s opinion addressing that issue.

II

The essential issue presented to us is the authority of a prosecutor
and a petitioner for post-conviction relief to resolve a post-conviction
claim – and the extent of that authority.

A

We take judicial notice that Indiana prosecutors and petitioners for
post-conviction relief do resolve post-conviction relief claims on terms
that include a sentence different than that imposed at trial (1) prior to
adjudication,[1] and (2) after adjudication but prior to resolution on
appeal.[2] There are sound policy reasons that our system should permit
prosecutors and petitioners for post-conviction relief to agree to resolve
post-conviction relief claims, including facilitating resolution of
meritorious, difficult-to-defend, and otherwise complex post-conviction
issues; making efficient use of limited resources; and promoting judicial
economy. To further these policies, we affirm the authority of prosecutors
and petitioners for post-conviction relief to agree to resolve post-
conviction relief claims on terms that include a sentence different than
that imposed at trial; and we affirm the authority of post-conviction
courts to accept such agreements.

B

Likely because it would be rare for there to be appeals from such
agreements, our appellate courts have not addressed whether there are
limitations on their terms. The specific question presented to us by this
case is whether it was permissible for the State to agree to an 80-year
executed time sentence when that sentence was not provided for by statute
when Dobeski committed his 1964 crimes.

As a general rule, the law in effect at the time a defendant committed
a crime controls his or her sentencing. See Smith v. State, 675 N.E.2d
693, 695 (Ind. 1996); Watford v. State, 270 Ind. 262, 264, 384 N.E.2d 1030,
1032-33 (1979).[3] On August 31, 1964, when Dobeski committed these
murders, the only penalties prescribed by statute for first-degree murder
were death and life imprisonment. See Burns Ind. Stat. Ann. § 10-3401
(1956 Replacement). Reasoning from the general rule, the Court of Appeals
concluded that the post-conviction court was without authority to approve
the settlement agreement because it contained a sentence not prescribed by
§ 10-3401.

We will return to this general rule but first examine the law in
effect when Dobeski committed his crimes – and find that Indiana’s
sentencing regime was fundamentally different in 1964 than it is today.

C-1

As the Court of Appeals observed, the determinate sentencing system in
effect today was enacted by the legislature in 1977. See Johnston, 702
N.E.2d at 1090; Pub. L. No. 340 § 150 (1977). That legislation reflected
the conclusion of the commission studying the penal code and the General
Assembly agreed that the criminal code’s then-existing indeterminate
sentencing provisions and procedures should be eliminated. See William A.
Kerr, Forward: Indiana’s Bicentennial Criminal Code, 10 Ind. L. Rev. 1, 28
(1976); see also Criminal Offenses, Penalties, and Procedures Study
Committee Meeting Minutes 2 (Apr. 29, 1964) (on file with the Indiana State
Archives) (documenting that the Model Sentencing Act subcommittee
recommended that the parole board be required by statute to establish by
administrative decree minimum terms to be served before a prisoner is
eligible for parole); Criminal Code Study Commission Minutes 2 (Apr.25,
1962) (on file with the Indiana State Archives) (documenting that, after
hearing commentary from interested parties and considering the issues over
time, the committee unanimously approved a determinate sentencing law and
agreed to prepare the appropriate legislation).

Under the new code, the legislature adopted fixed terms of years for
crimes, including murder, while limiting and clarifying parole options.
See Ind. Code §§ 35-50-2-3 and 35-50-6-1 (Burns Supp. 1977). The final
1977 code changes collapsed the distinction between first and second-degree
murder, establishing one class of murder that was punishable by
imprisonment of a determinate period of 30 to 60 years, with a presumptive
or standard sentence of 40 years. See Ind. Code § 35-50-2-3 (Burns Supp.
1977); see also William A. Kerr, Forward: Indiana’s New and Revised
Criminal Code, 11 Ind. L. Rev. 1, 8 (1978); Kerr, Forward: Indiana’s
Bicentennial Criminal Code, 10 Ind. L. Rev. 1, 13. When a person is
sentenced for murder under today’s code, a fixed number of years is
specified in the sentencing order.

C-2

A prisoner whose crime was committed before the 1977 code took effect
could not benefit from it. It expressly includes a savings clause
precluding application of the new sentencing scheme to penalties incurred
before October 1, 1977.[4] Therefore, neither the post-1977 criminal code,
nor the current sentence modification provisions at Ind. Code § 35-38-1-17
control our analysis of this case because they were not in effect at the
time Dobeski committed his crimes in 1964. Instead, we must analyze the
1989 agreement between Dobeski and the prosecutor’s office in the context
of the sentencing system in effect at the time Dobeski committed his crimes
– to repeat, a fundamentally different system from today’s.

As the authorities cited above indicate, the pre-1977 criminal code
provided for an indeterminate rather than a determinate sentencing scheme.
As such, the amount of time a prisoner actually served was determined under
both formal and informal parole procedures and rules.

In fact, from 1961 until the criminal code was revised in 1977, the
Indiana parole board was “authorized to release on parole, pursuant to the
laws of the state of Indiana, any person confined in any penal or
correctional institution in this state except persons under sentence of
death.” Burns Ind. Stat. Ann. § 13-1609 (Supp. 1961) (originally enacted
as Pub. L. No. 343 § 9 (1961)). The parole board was to

. . . . conduct hearings at each correctional institution at such time
as may be necessary for a full study of the cases of prisoners
eligible for release on parole and to determine when and under what
conditions and to whom parole may be granted . . . .

Id.

C-3

Viewing the pre-1977 sentencing and parole statutes as a whole, it is
clear that even though two consecutive life sentences were imposed on
Dobeski, the period of confinement was indeterminate, subject to adjustment
through the parole process. Said differently, the pre-1977 sentencing and
parole statutes could have operated to provide that Dobeski’s original
period of confinement would be modified to one equal to that provided in
the settlement agreement.

Our review of the parole board’s minutes from 1962-1973 indicates that
parole was authorized for 273 inmates serving life sentences at the Indiana
State Prison during those years. The average term served by those 273
prisoners before parole was authorized was 19.4 years; only five of them
served 40 years or more before parole was authorized.[5] Minutes of the
Indiana Parole Board 1962-1973 (on file with the Indiana State Archives).

D

We recognize and adhere to the general rule that the law in effect at
the time a defendant committed a crime controls his or her sentencing. But
none of the cases in which this rule has been cited[6] involve a court
considering an agreement tendered jointly by the State and a petitioner for
post-conviction relief that, among other things, includes a sentence
different than that imposed at trial. The question remains whether it is a
rule that prevents us from affirming the agreement the State made with
Dobeski.

We conclude that the State should be held to the agreement it made
with Dobeski in 1989 for the following reasons. First, affirming the
agreement furthers as a general matter the interests identified above –
facilitating resolution of meritorious, difficult-to-defend, and otherwise
complex post-conviction issues; making efficient use of limited resources;
and promoting judicial economy. Some if not all of these considerations
were undoubtedly at work in this case. Second, as part of the agreement,
Dobeski dismissed his claim for post-conviction relief with prejudice. We
see reviving this claim now, almost a decade later, highly problematic for
all concerned. Third, the original life sentences had been imposed under
an indeterminate sentencing regime that expressly provided for later
review. Fourth, practice under the indeterminate sentencing system
regularly authorized parole from life sentences after periods of time much
less than the revised sentence in this case. Fifth, the sentence provided
for in the agreement here corresponds to consecutive presumptive terms
under the sentencing regime in effect at the time the agreement was
approved.[7]

We recognize that this Court has previously said that it requires an
exercise of administrative and not judicial power to reduce indeterminate
sentences. Dowd v. Basham, 233 Ind. 207, 212, 116 N.E.2d 632, 635 (1954).
But that was in the context of a prisoner’s attempt to have his sentence
reduced as against opposition from the State. Here, the administrative
branch of government acting through the county prosecutor, as part of an
effort to resolve and conclude litigation, sought court approval of an
agreement that, among other things, included a sentence different than that
imposed at trial. We hold it to be within the judicial power to dismiss
the litigation on this basis.

Conclusion

Having previously granted transfer, we now (1) adopt and incorporate
by reference Part I of the Court of Appeals’s opinion denying the
Johnstons’ legal standing to intervene; and (2) affirm the post-conviction
court’s acceptance of the 1989 agreement between the State and Dobeski.

DICKSON, BOEHM, and RUCKER, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE STATE

Donald W. Pagos Karen M. Freeman-Wilson
Michigan City, Indiana Attorney General of Indiana

Greg Ullrich
Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR APPELLEE DOBESKI

J. David Keckley
South Bend, Indiana

IN THE

SUPREME COURT OF INDIANA

JAMES JOHNSTON AND )
JUDY JOHNSTON, )
)
Appellants (Intervenors Below))
) 64S04-9902-PC-140
v. ) in the Supreme Court
)
RICHARD ALAN DOBESKI, ) 64A04-9801-PC-32
) in the Court of Appeals
Appellee (Petitioner Below), )
)
and )
)
STATE OF INDIANA, )
)
Appellee (Respondent Below). )

APPEAL FROM THE PORTER CIRCUIT COURT
The Honorable Donald D. Martin, Special Judge
Cause No. 64-PCCR-105

November 22, 2000

SHEPARD, Chief Justice, dissenting.

It has long been bedrock law that the sentence for a crime is the
sentence in existence when the crime was committed, unless it is apparent
that the legislature intended to ameliorate the criminal law and give
perpetrators a retroactive benefit. See, e.g., Taylor v. State, 681 N.E.2d
1105, 1112 (Ind. 1997). As the majority indicates, the General Assembly
expressly precluded application of the 1997 sentencing scheme to persons
who committed crimes before October 1, 1977. Slip op. at 8.

In Landaw v. State, 258 Ind. 67, 68, 279 N.E.2d 230, 231 (1972) we
held that “[i]t is clearly within the sole power of the Legislature to fix
the punishment for crimes, and this Court has no power to alter that
legislative determination.” We have specifically upheld the constitutional
authority of the legislature to make sentencing changes prospective only.
Parsley v. State, 273 Ind. 46, 401 N.E.2d 1360 (1980), cert. denied, 449
U.S. 862 (1980).

I conclude that the trial court therefore had no authority to modify
Dobeski’s sentence in a manner that ignored the legislature’s decision to
make the 1977 sentencing scheme prospective only. The fact that the court
acted upon an agreement of the parties seems to me not to affect the
court’s power. In effect, the trial court granted parole, but, of course,
parole is not within a court’s domain.

I think today’s decision both impinges on the distribution of powers
dictated by the Indiana Constitution and untethers us from long-established
law. I am concerned about where this arrow, once shot in the air, may come
to ground.

-----------------------
[1] See, for example, State ex. rel. Woodford v. Marion Superior
Court, 655 N.E.2d 63, 64-65 (Ind. 1995), where a post-conviction relief
petitioner and an outgoing prosecutor had submitted an agreement asking the
court to set aside petitioner’s life sentence and impose a sentence of 50
years with ten years suspended to probation. The issue in Woodford was
whether the petition needed authorization under Ind. Post-Conviction Rule
1(10). Neither this Court nor any of the parties challenged the ability of
the State and the petitioner to negotiate such an agreement, or the post-
conviction court’s authority to accept or reject the agreement.

[2] See, e.g., McCollum v. State, No. 45S00-9403-PD-228, CCS entry
4/29/99, at p. 6; and Townsend v. State, No. 45S00-9403-PD-227, CCS entry
4/29/99, at p. 7 (Prisoners who both were sentenced to death for two
murders filed separate post-conviction petitions which were denied;
petitioners appealed the denial to this Court; prior to our issuing of a
decision in either case, the post-conviction court accepted agreements
between both petitioners and the State to re-sentence each petitioner to
two consecutive 60-year sentences).
[3] An exception – not applicable in this case – to this rule occurs
when the legislature amends the statute that was in force at the time of
the offense, the amendment takes effect prior to sentencing, and the
amendment provides for an ameliorative penalty. See Elkins v. State, 659
N.E.2d 563, 565 (Ind. Ct. App. 1995).
[4] The savings clause provides:

a) Neither this act nor Acts 1976, P.L. 148 affects:

(1) rights or liabilities accrued;
(2) penalties incurred; or
3) proceedings begun
before October 1, 1977. Those rights, liabilities, and proceedings
are continued, and penalties shall be imposed and enforced as if this
Act and Acts 1976, P.L. 148 had not been enacted.

(b) An offense committed before October 1, 1977, under a law
repealed by Acts 1976, P.L. 148 shall be prosecuted and remains
punishable under the repealed law.

Pub. L. No. 341 § 150 (1977).

[5] The minutes do not reflect cases in which parole was rejected for
prisoners serving life sentences. A study of parole in Indiana indicates
that in 1965, 50.8% of all inmates at the Indiana State Prison had their
parole requests denied or continued; 36.9% were paroled to supervision;
7.5% were paroled and discharged; and 4.8% were paroled on other terms.
National Council on Crime and Delinquency, Corrections in Indiana 8.10
(1967).
[6] See, e.g., Smith, 675 N.E.2d at 695; Watford, 270 Ind. at 264, 384
N.E.2d at 1032.
[7] Because of the presence of all of these factors here, we hold this
situation distinct from that in challenges to plea agreements in cases like
Lighty v. State, 727 N.E.2d 1094 (Ind. Ct. App. 2000) and Sinn v. State,
609 N.E.2d 434 (Ind. Ct. App. 1993).