ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Howard Howe Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
John B. Herriman
Deputy Attorney General
Indianapolis, Indiana
TONY BERRY, )
Defendant-Appellant, )
)
v. ) 49S00-9612-CR-739
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9510-CF-151127
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DICKSON, J.
The defendant-appellant, Tony Berry, was convicted of murder and robbery and sentenced to consecutive terms of sixty years for the murder and eight years for the robbery. The trial court also ordered that these sentences run consecutive to a separate sentence for an unrelated conviction in another court. In this direct appeal, the defendant
claims that the evidence was insufficient to support his convictions and that the sentence
consecutive to the unrelated conviction was error.
An appellate claim of insufficient evidence will prevail if, considering the
probative evidence and reasonable inferences that support the judgment, and without
weighing evidence or assessing witness credibility, we conclude that no reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458
N.E.2d 223, 226 (Ind. 1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264
(1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
The evidence supporting the judgment reveals that the defendant spent the evening
of October 12, 1995, with two other men, Carlton Holcomb and Gregory Ellis, visiting
various clubs and driving around. While driving near the Eagle Terrace Apartment
Complex, the defendant noticed Edward White's car, a white Buick Park Avenue with
gold-colored rims. The defendant stated that he wanted to get the rims from it. Ellis,
who was driving at the time, stopped at a corner to let the defendant out. A short time
later, Ellis and Holcomb decided to try to stop the defendant. As they backed around the
corner, Holcomb saw a flash and heard a shot. The defendant then pulled up behind
them, driving White's car. The three men drove away, stopped briefly at a hotel parking
lot, and then drove to the area where police eventually found the victim's car. Ellis and
Holcomb helped the defendant strip the car of three rims, the radio, and the battery. The
men then placed them in the trunk of the car Ellis was driving. Holcomb testified that,
while driving away from the victim's car, the defendant admitted that "he walked up
behind him and shot him." Record at 232. A forensic pathologist testified that White's
death was caused by a gunshot to the back of the head. The police technician recovered
fingerprints from several items found in the car and from the outside of the car. A
fingerprint analyst identified the defendant's fingerprints on the car and also identified
fingerprints of both Holcomb and Ellis either on the car or on items found with the car.
The defendant offered an alibi witness at trial and attempted to portray Ellis and
Holcomb as the perpetrators, explaining his own fingerprints on the car by offering the
excuse that he later helped them strip the car after the crime had been committed. He
essentially asks us to reweigh the evidence, which we cannot undertake on appellate
review. There was sufficient evidence to support the jury's conclusion that the defendant
committed the murder and robbery.
The defendant next contends that the trial court had no authority to impose the
sentences in this case consecutive to the sentence in a separate, unrelated case. The
applicable statute provides, in relevant part: "The court may order terms of imprisonment
to be served consecutively even if the sentences are not imposed at the same time." Ind.
Code § 35-50-1-2(c) (Supp. 1996). We have noted that this portion of the statute
"essentially overturned the contemporaneity requirement" of previous cases. Weaver v.
State, 664 N.E.2d 1169, 1170 (Ind. 1996). In Weaver, the trial court imposed a sentence
and ordered that it be served consecutive to sentences imposed in unrelated cases tried in
different counties. Because the statute had not yet gone into effect, the trial court lacked
authority to impose the consecutive sentence. Id. at 1170-71. Here, however, the
defendant was sentenced on August 9, 1996, after the statutory provision went into effect.
The trial court therefore had authority to impose this sentence consecutive to the sentence
in another case even though the two sentences were not contemporaneously imposed.
The convictions and sentence of the defendant are affirmed.
SHEPARD, C.J., and BOEHM, J., concur. SULLIVAN, J., dissents with separate
opinion in which SELBY, J., concurs.
Howard Howe
Jeffrey A. Modisett
Indianapolis, Indiana
Attorneys for Appellee
Attorney General of Indiana
John B. Herriman
Deputy Attorney General
Indianapolis, Indiana
TONY BERRY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 49S00-9612-CR-739
)
)
)
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SULLIVAN, Justice, dissenting.
The defendant here contends that the trial court had no authority to require that his sentence here be served consecutively to that imposed at another time by another court. I agree.
Some background is in order. In Kendrick v. State, 529 N.E.2d 1311, 1311 (Ind.
1988), we held: "Trial courts, in the absence of express statutory authority, cannot order
consecutive sentences, i.e., the commencement of a sentence cannot, in the absence of
express statutory authority, be postponed." We further held that the authority of the trial
court to determine "whether terms of imprisonment shall be served concurrently or consecu
tively," granted in Ind. Code § 35-50-1-2(a), was "restrictive. The general authority is
limited to those occasions when the court is meting out two or more terms of imprison
ment." Kendrick, 529 N.E.2d at 1312. Accord, Seay v. State, 550 N.E.2d 1284, 1289 (Ind.
1990).
As such, the state of the law after Kendrick and Seay was that a consecutive sentence
could only be imposed under Ind. Code § 35-50-1-2(a) if the sentence was consecutive to
another sentence imposed (i) at the same time and (ii) by the same court.
In 1994, the legislature amended Ind. Code § 35-50-1-2 to provide: "The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time." 1994 Ind. Acts. P.L. 164 § 1. We confronted this amendment last year in Weaver v. State, 664 N.E.2d 1169 (Ind. 1996). There consecutive sentences had been imposed in violation of Kendrick before the effective date of the 1994 amendment and we found them invalid. In the course of enunciating the result, we said: "Although the legislature essentially overturned the contemporaneity requirement of Seay and Kendrick
with the 1994 amendment, the legislation doing so became effective after Weaver's sentence
was imposed. The . . . Court acted beyond the scope of its statutory authority." Weaver,
664 N.E.2d at 1170-71 (footnotes omitted; emphasis supplied).
To me the Weaver language indicates that the 1994 amendment overturned the
contemporaneity requirement, i.e., the "same time" requirement, of Kendrick and Seay but
not the "same court" requirement. Because the sentence here was imposed consecutive to
a sentence imposed by another court, I believe the trial court acted beyond its authority.
SELBY, J., concurs in dissent.
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