Attorney for Appellant
John F. Crawford
Indianapolis, IN
Attorneys for Appellee
Stephen Carter
Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ARTHUR SCHLICHTER,
Appellant (Respondent below),
v.
STATE OF INDIANA,
Appellee (Petitioner below).
)
) Supreme Court No.
) 49S02-0210-CR-508
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-9608-CF-129256
ON PETITION TO TRANSFER
December 18, 2002
SULLIVAN, Justice.
Arthur Schlichter pled guilty to two counts of forgery and one count
of theft and received consecutive sentences for the two forgery charges.
While serving his sentence, Schlichter violated his probation. Following
the revocation of his probation, Schlichter appealed, challenging the
propriety of the consecutive sentences. We hold that Schlichter may not
collaterally challenge his sentence on an appeal from his probation
revocation. Schlichter’s options were to appeal his sentence when imposed
or challenge it in a post-conviction proceeding.
Background
On January 17, 1997, Schlichter pled guilty to two counts of forgery
and one count of theft. On July 9, 1997, the trial court held a sentencing
hearing. At that time, both Schlichter and the State agreed to not contest
the issue of whether the two forgery counts constituted a “single episode”
of conduct. The trial court ultimately sentenced Schlichter to consecutive
sentences of eight years imprisonment for each count of forgery and to a
concurrent sentence of three years for the theft count. A portion of the
sentence was to be served in a community corrections and day reporting
setting.
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 Schlichter’s
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 court’s 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.
Discussion
The State contends that Schlichter’s appeal from his probation
revocation constitutes an impermissible collateral attack on his underlying
sentence. We agree.
As noted above, Schlichter appeals from the trial court’s decision
revoking his probation. However, he does not challenge the trial court’s
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 here—an 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.[1] It is for this reason that we must insist that
Schlichter seek relief either through a direct appeal of his sentence or a
petition for post-conviction relief.
Conclusion
Having previously granted transfer pursuant to Indiana Appellate Rule
58(A), thereby vacating the opinion of the Court of Appeals, we now affirm
the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] We make this point because a defendant will frequently give up
important rights as part of the plea bargaining process. See Games v.
State, 743 N.E.2d 1132, 1135 (Ind. 2001) (“Defendants who plead guilty to
achieve favorable outcomes in the process of bargaining give up a plethora
of substantive claims and procedural rights.”).