Partially Concurrent Sentences, Statutory Interpretation, and Legislative Intent: Amicus Brief filed in State v. Bryant Wilson (Indiana Supreme Court)

Transcription

1 From the SelectedWorks of Adam Lamparello Winter 2013 Partially Concurrent Sentences, Statutory Interpretation, and Legislative Intent: Amicus Brief filed in State v. Bryant Wilson (Indiana Supreme Court) Adam Lamparello, Indiana Tech Law School Charles MacLean, Indiana Tech Law School Available at:

2 IN THE SUPREME COURT OF INDIANA BRYANT E. WILSON, NO. 27S CR-584 vs. Appellant, Court of Appeals Cause No. 27A CR-1012 STATE OF INDIANA, Appellee. Grant Circuit Court Cause No. 27C FC-160 BRIEF OF AMICUS CURIAE: AMICUS PROFESSORS 1

3 TABLE OF CONTENTS Table of Authorities Brief Statement of the Interest of Amicus Curiae Summary of Argument Statement of Facts Discussion I. Courts Sentencing Power is Limited to that which is Expressly Authorized by Statute; a Sentencing Court is not Free to Extrapolate. II. III. IV. The Sentencing Statute Unambiguously Authorized Either Consecutive or Concurrent Sentences, but not Both. Any Ambiguity in Criminal Substantive and Sentencing Statutes Must be Resolved in Favor of the Defendant and Against the State. The Failure of the Statute to Forbid a Type of Sentence is Not Equivalent to the Statute Authorizing that Type of Statute. V. Defendant/Appellant Wilson s Partially Consecutive Sentence was Unauthorized by Statute, was and is Erroneous, and must be Corrected; Wilson is Entitled, upon Re- Sentencing to Imposition of Fully Concurrent Sentences. 2

4 BRIEF STATEMENT OF THE INTEREST OF AMICUS CURIAE Professors Charles MacLean, James Berles, and Adam Lamparello (collectively, Amicus Professors ) of the Indiana Tech Law School, Fort Wayne, Indiana and pursuant to Rule 41 of the Indiana Rules of Appellate Procedure, submit this Amicus brief in support of the Defendant/Appellant s interests, and in response to the Indiana Supreme Court s overture seeking amicus submissions in the case of Bryant E. Wilson v. State of Indiana. Inasmuch as the Defendant/Appellant is appearing pro se, the Amicus Professors interest is to ensure, as a service to this Court, the Bench more generally, the Bar, the public, and the Defendant/Appellant, that the Court is fully advised as to the law and policy on point. 3

5 SUMMARY OF ARGUMENT Sentencing is a creature of the legislature, and courts are limited to imposing sentences that are authorized by statute. Wilson v. State, 988 N.E.2d at (Robb, C.J., dissenting) (emphasis added). Indiana Code (the Code ) is specific and unambiguous: terms of imprisonment shall be served concurrently or consecutively. Id. (emphasis added). Accordingly, the Code s use of mandatory and disjunctive language requires fully consecutive or concurrent sentences. The Code s plain language does not explicitly or implicitly authorize courts to impose partially consecutive, blended, or split sentencing schemes. Partially consecutive sentences would impermissibly read into the Code a third sentencing option, thus contradicting Indiana s well-settled jurisprudence and undermining the goal of reasonable uniformity in sentencing. In Reed v. State, for example, this Court held that [a] sentence that is contrary to or violative of a penalty mandated by statute is illegal [and] without statutory authorization. 856 N.E.2d 1189, 1199 (Ind. 2006) (quoting Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)); see also Wilson, 988 N.E.2d at ( courts are limited to imposing sentences that are authorized by statute ) (Robb, C.J., dissenting); State v. Rogers, 590 A.2d 234, (N.J. 1991) (construing a nearly identical statute to threaten sentencing uniformity). This proposition is neither novel nor remarkable. In Baromich v. State, which involved a consecutive sentence that, at the time, was not authorized by statute, this Court held that it did not have the authority to impose sentences which are to run consecutively unless there is a specific statute which authorizes such a thing. 249 N.E.2d 30, 33 (Ind. 1969) (emphasis added). The analysis is no different in the context of partially consecutive sentences. The Code does not 4

6 authorize[] such a thing, particularly where, after the Code s enactment, two separate Indiana Court of Appeals opinions, in 2003 and 2012, respectively, put the legislature on notice of that issue. The legislature made no changes to the Code. Consequently, Wilson s partially consecutive sentence violates the Code s express language, is erroneous on its face, and must be corrected. Importantly, Indiana case law provides that following a successful sentencing appeal, assuming the defendant has not committed additional substantive criminal acts after the original sentencing, the defendant cannot be sentenced to a longer term of imprisonment than was originally imposed on the defendant. There are only two sentences permissible here, that is, either concurrent or consecutive, and consecutive sentencing would yield a longer term than defendant originally received; therefore, the defendant is entitled to fully concurrent sentences where the record fails to disclose substantive ongoing criminal conduct since the original sentencing. Based on the foregoing, the Amicus Professors respectfully request that this Court find the partially consecutive sentence was erroneous, and either (1) directly resentence the Defendant/Appellant to concurrent sentences, or (2) remand with instructions for the circuit court to resentence him to concurrent terms. 5

7 STATEMENT OF FACTS The Amicus Professors adopt the statement of Facts and Procedural History as presented in the opinion below of the Indiana Court of Appeals. Wilson v. State, 988 N.E.2d 1221, (Ind. Ct. App. 2013). The Amicus Professors augment those facts as follows. In 1996, Defendant/Appellant Wilson was sentenced to serve sentences that were partially consecutive to each other (one forty-five year term with five years of a second sentence to be served consecutively, for a total of fifty years imprisonment). Fully consecutive sentences could have been up to ninety years imprisonment or the augmented statutory maximum, whichever is less. Fully concurrent sentences could not have exceeded forty-five total years imprisonment, five fewer years than the sentence imposed on Wilson. On June 3, 2013, the Indiana Court of Appeals issued its decision. Id. Judge Crone drafted the court s majority opinion, in which Judge Friedlander concurred without separate opinion. Id. Chief Judge Robb appended a dissenting opinion, wherein he argued, I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute.... Because the sentencing in question was not explicitly permitted by statute, I believe it was therefore erroneous. Id. at (Robb, C.J. dissenting). On September 6, 2013, the Indiana Supreme Court, pursuant to the Defendant/Appellant s request, granted transfer of the case for further review. Wilson v. State, 993 N.E.2d 625 (Ind. 2013) (table). On September 9, 2013, the Honorable Brent E. Dickson, Chief Justice of the Indiana Supreme Court, issued an Order Directing Additional Briefing and Inviting Amicus Participation. Ind. S. Ct. Order (Sep. 9, 2013) (noting on the Order: All Justices concur. ). In 6

8 that Order, the Chief Justice explained, The Supreme Court is interested in receiving additional briefing on the issue of whether the imposition of a partially consecutive sentence is error. Id. at 1. The Order required prospective amici to file and serve, by September 20, 2013, a motion seeking leave to participate as amicus curiae. Id. The Order restricted each amicus brief to a maximum of 4200 words. On September 20, 2013, the Amicus Professors filed their Motion to File Brief as Amicus Curiae, soon followed by the requisite Notice of Appearance. The accompanying is the Amicus Professors Amicus Brief. 7

9 ARGUMENT I. The Code Expressly Requires Courts To Impose Fully Concurrent or Consecutive Sentences. The Code does not authorize courts to impose partially consecutive (or concurrent) sentences. The plain language expressly and unambiguously states that terms of imprisonment shall be served concurrently or consecutively. Id. (emphasis added). The words shall and or do not permit courts to engraft onto the Code a third sentencing option, which violates both Indiana law as well as basic principles of statutory construction. For example, if partially consecutive sentences were allowed, the words shall and or would be rendered meaningless, thereby re-writing the statute and undermining legislative intent. Should the legislature wish to amend the Code and allow partially consecutive sentences, it may do so. Thus far, they have declined the invitation. Decisional law throughout the country at both the state and federal level provides useful guidance, and generally falls into three categories. First, where a statute authorizes only consecutive or concurrent sentences, appellate courts have rejected the lower courts attempts to create a third option that conflates both alternatives. Second, in those instances where courts have authorized partially consecutive sentences, the relevant statute expressly authorized courts to fashion alternative sentences. The Code does neither. Third, a minority of courts have held that a statute authorizing fully concurrent or consecutive sentences implicitly gives courts the discretion to impose partially consecutive or concurrent sentences. In these cases, however, there has been at least an arguable basis in the statute s text to support this interpretation. The Code is neither susceptible to nor does it support such a construction. Consequently, partially consecutive sentences violate Indiana law and 8

10 impermissibly transgress upon the legislature s authority to define the nature and types of criminal punishment. A. Partially Consecutive Sentences Are Not Permitted Where A Statute Authorizes Fully Concurrent or Consecutive Sentences. In Rogers, the New Jersey Supreme Court confronted the question of whether N.J. Stat. Ann. 2C:44-5(a) authorized partially consecutive sentences. See 590 A.2d at The statutory language which is nearly identical the Indiana Code s language provided that [w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence. Id. at 116 (emphasis added). The Appellate Division had previously upheld a partially consecutive and concurrent sentence on the ground that it was necessary to achieve the purposes and principles of sentencing. See State v. Yarbough, 498 A.2d 1239, cert. denied, 475 U.S (1986). 1 The New Jersey Supreme Court reversed, holding that courts were not statutorily authorized to devise a split-sentencing scheme. Rogers, 590 A.2d at 236. The Court recognized that the Code s all-or-nothing choice does not allow any room for judicial revision of the Code s general sentencing provisions. Id. at 238; see also State v. Vires, 2005 WL at *2 (Ohio Ct. App. March 14, 2005) (holding that the statutory language consecutively or concurrently does permit the imposition of partially consecutive sentences). In addition, partially consecutive sentences undermine attempts to achieve a reasonable degree of sentencing uniformity. The Court held as follows: 1 In Yarbough, the Court set forth standards governing the imposition of concurrent or consecutive sentences, stating that the goal to provide that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing. 498 A.2d at

11 [T]he Code does not permit, for multiple offenses, sentences that are partially consecutive and partially concurrent The paramount goal of sentencing reform was greater uniformity Under the split-sentencing scheme envisioned by the Appellate Division, however, trial courts would be free to design sentences that could vary widely. The multitude of possible combinations would hardly foster the goal of uniformity. Rogers, 590 A.2d at (emphasis added). Similarly, in In re Costello, the Washington Court of Appeals held that partially concurrent sentences were unlawful because they violated the plain language of R.C.W.A. 994A.120(17), which require[d] that sentences be either fully consecutive or fully concurrent. 129 P.3d 827, 834 (Wash. Ct. App 2006); see also State v. Grayson, 125 P.3d 169 (Wash. Ct. App. 2005) (emphasis added) [brackets added]. B. Partially Consecutive or Concurrent Statutes Are Permitted Only Where A Statute Provides Express Authorization. Courts have upheld partially consecutive or concurrent sentences only where a statute expressly grants this authority. In Reyes v. State, the Court of Appeals of Alaska upheld the lower court s partially consecutive sentence based on the plain language of Alaska Stat (b), which governed parole eligibility during the term of a consecutive or partially consecutive presumptive sentence imposed under Alaska Stat (e) or (g). 978 P.2d 635, 642 (Alaska Ct. App. 1999) (emphasis added). 2 Similarly, in United States v. Gallegos, the Ninth Circuit upheld the District Court s imposition of a partially consecutive sentence based on the plain language of 18 U.S.C. 3584, as well as Section 5G1.3(c) of the United States Sentencing Guidelines. See 613 F.3d 1211, (9th Cir. 2010). The Ninth Circuit acknowledged that [t]he starting point for our interpretation of a statute is always its language, which in Gallegos stated that sentences may run concurrently or consecutively. Id. at (emphasis added). While recognizing that the 2 Alaska Stat (g) was later amended into (b), which expressly authorizes concurrent or partially concurrent sentences. 10

12 term or necessarily implied separate alternatives, the majority interpreted the word may to suggest a grant of permissive discretion, that allowed courts to utilize the entire spectrum of possibility when imposing a sentence. Id. at This justified sentences that were wholly concurrent, wholly consecutive, or anything in between. Id. at The Ninth Circuit also relied on the Senate Committee Report for the Comprehensive Crime Control Act of 1984, which involved carefully considered determinations as to the appropriateness of concurrent, consecutive, or overlapping sentences. Id. at 1216 (emphasis added). Furthermore, the policy statement to Section 5G1.3(c) of the Sentencing Guidelines, governing undischarged terms of imprisonment, stated that the sentence may be imposed to run concurrently, partially concurrently, or consecutively Id. at (emphasis in original). C. Statutes Authorizing Fully Consecutive or Concurrent Sentences Do Not Provide Courts With the Implicit Discretion to Impose Blended or Overlapping Sentences. At least one court has interpreted statutes authorizing fully concurrent or consecutive sentences to give courts the power to impose sentences that blend both alternatives. See State v. Trice, 976 P.2d 568, 571 (Oregon Ct. App. 1999). In Trice, for example, the Court of Appeals of Oregon interpreted Or. Rev. Stat , which authorized concurrent or consecutive sentences, to grant the courts implicit authority to impose sentences that are partially consecutive and concurrent. 976 P.2d 568, 571 (Oregon Ct. App. 1999). Critically, however, in Trice the statutory text justified this conclusion. The court s reasoning was predicated on language providing the courts with discretion to impose consecutive terms of imprisonment, and stating that sentences may be made concurrent or consecutive. Id. at 570 (quoting Or. Rev. Stat ) (emphasis added). Put differently, the implicit authority to impose partially consecutive or concurrent sentences originated from the express language in that state s statute. 11

13 D. Indiana Code Does Not Grant Courts With The Express or Implied Authority to Impose Partially Consecutive Sentences. The Code expressly requires courts to impose terms of imprisonment [that] shall be served concurrently or consecutively (emphasis added) [brackets added]. Unlike the statutes discussed above, the Code does not use the word may or contain other language that can be construed as a grant of permissive discretion to impose anything in between these separate alternatives. Id.; see also Gallegos, 613 F.3d at The imposition of partially consecutive sentences is contrary to the Code s express mandate and Indiana law. In Hull v. State, for example, the Indiana Court of Appeals invalidated a lower court s partially consecutive sentence, holding that it constituted fundamental error, and was therefore void, because the Code authorized concurrent or consecutive sentencing, but not both. 799 N.E.2d 1178, (Ind. Ct. App. 2003) ( the law does not authorize the sentence imposed on Hull ); see also Mickelson v. Idaho St. Corr. Inst., 955 P.2d 1131, 1134 (Ida. 1998) ( hybridization of concurrent and consecutive sentences is erroneous ); Baromich, 249 N.E.2d at 33 (1969) (invalidating a consecutive sentence that, at the time, was not authorized by statute, and holding that [t]he rule in this state is that the court does not have authority to impose sentences which are to run consecutively unless there is a specific statute which authorizes such a thing ). As Chief Justice Robb stated in Wilson, courts are limited to imposing sentences that are authorized by statute, because sentencing is a creature of the legislature. 988 N.E.2d at (Robb, C.J., dissenting); see also Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000) (a trial court s sentencing authority is only that which is conferred by the legislature, and it does not possess the power to impose sentences beyond the statutorily prescribed parameters ); White v. State, 330 N.E.2d 84, 88 (Ind. 1975) ( a trial judge does not have authority to impose 12

14 consecutive sentences unless there is a specific statute so authorizing.... We are not at liberty to dispute the legislature s prerogative. ); Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006) ( [a] sentence that is contrary to or violative of a penalty mandated by statute is illegal in the sense that it is without statutory authority ) (quoting Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). In fact, earlier this year the Indiana Court of Appeals re-affirmed the principle that [t]rial courts have broad discretion in sentencing, but must act within statutorily prescribed limits [even when the State, in reply, argues that the legislature could not have intended to rule-in or rule-out alternative sentencing approaches not expressly authorized by statute]. Porter v. State 985 N.E.2d 348, 358 (Ind. Ct. App. 2013); see also In re Swiecicki, 460 N.E.2d 91, 93 (Ill. App. Ct. 1984) (courts are not authorized to enlarge the meaning of a statute by adding language aimed at correcting any supposed omission or defect ). Here, the Code provides that courts shall impose a concurrent or consecutive sentence. Any sentence beyond these statutory limits is unauthorized and therefore void. This interpretation is consistent with basic principles of statutory construction. In Dague v. Piper Aircraft Corp., for example, this Court held that our duty is to ascertain and give effect to the intent of the legislature. 418 N.E.2d 207, 210 (Ind. 1981). In so doing, the Court is required to give meaning to the language used, where that meaning is clear and unambiguous. Id. The Code does not present ambiguity or room for interpretation. To begin with, the word or in an Indiana criminal statute is almost always construed in the disjunctive. Sharp v. State, 817 N.E.2d 644, 647 (Ind. Ct. App. 2004) ( The words and and or as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature respectively ) (quoting 13

15 Barr v. Sun Exploration Co., 436 N.E.2d 821, (Ind. Ct. App. 1982)); R.L. v. State, 437 N.E.2d 482, 485 (Ind. Ct. App. 1982) ( where the legislature utilizes the disjunctive [or] and no portion of the statute is thereby rendered meaningless, effect must be given to the plain words used by the legislature ). Furthermore, in construing statutes, Indiana courts also recognize and apply the canon, expressio unius est exclusio alterius, that is, where the legislature has included certain terms in a statutory list, the list should be construed as excluding all terms not listed. Brown v. State, 774 N.E.2d 1001, 1006 (Ind. Ct. App. 2002). In addition, to the extent that ambiguity exists in a criminal statute, the rule of lenity requires that all ambiguities be resolved in favor of the accused and against the State. Dowd v. Sullivan, 27 N.E.2d 82, 85 (Ind. 1940). That is true whether the penal statute addresses the substantive crime or the sentence for the crime. Id.; Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996) ( This policy of lenity applies to the ambit of criminal laws and to the penalties that they impose ); see also Dye v. State, 984 N.E.2d 625, (Ind. 2013); Ross v. State, 729 N.E.2d 113, 116 (Ind. 2000) ( when a conflict arises over the question of imposing a harsher penalty or a more lenient one, the long-standing Rule of Lenity should be applied... where there is ambiguity it must be resolved against the penalty ) (quoting Dowd, 27 N.E.2d at 85)). [T]he invocation of criminal penalties on the basis that the spirit, although not the letter, of a penal statute has been violated is a path our courts have only rarely tread. Pennington v. State, 426 N.E.2d 408, 410 (Ind. 1981). Based on these principles, it is improper for the courts to conclude that, where the legislature has not forbidden a type of sentence, the legislature is deemed to have thereby authorized that type of sentence. See Wilson, 988 N.E.2d at ( there was no legal authority in 1996 [when Wilson was originally sentenced] that expressly disapproved of partially 14

16 consecutive sentences..., [thus,] Wilson s sentence is not erroneous on its face ) (emphasis added); Merida v. State, 977 N.E.2d 406, (Ind. Ct. App. 2012) (Crone, J., concurring and dissenting) 3 ( Indiana Code Section , does not specifically prohibit partially consecutive sentences ) (emphasis added). These two opinions directly contradict the Code s express language, the weight of Indiana precedent favoring lenity, and disregard the specific types of sentences that have been expressly and specifically authorized by the Indiana General Assembly. This Court s decision in Prewitt v. State departs from these well-settled principles. 878 N.E.2d 184, (Ind. 2007). In Prewitt, this Court, perceiving a statute to be confusing, gave the word or a more expansive and, as a practical matter, conjunctive meaning. Id. Extrapolating from the statute s plain language, this Court cobbled together an argument that the legislature must not have intended the plain meaning of the words when enacting the statute. Id. The Court reasoned that since the General Assembly, in recent decades, has strived to encourage judicial flexibility, the Court should interpret the legislature s words more broadly than the words the General Assembly chose. Id. at 187. But in nearly the same breath, this Court noted that the legislature has at least twice amended that same statute when judicial decisions comported with the enacted words of the statute, but not the legislature s apparently unwritten intent. Id. This last path is the proper and constitutional path. The courts should give plain meaning to the legislature s words, and let the legislature amend for greater clarity when judicial 3 Judge Crone in his concurring and dissenting opinion in Merida, brought the potential ambiguity and illegality of partially consecutive sentencing to the attention of the Indiana General Assembly. The legislature has failed to act, perhaps implying there is no ambiguity at all. Indeed, the General Assembly has been aware, since 2003, that Indiana appellate courts construed partially consecutive sentences as unauthorized and illegal sentences. Hull, 799 N.E.2d 1182 (in 2003, the Indiana Court of Appeals held the law does not authorize the [partially consecutive] sentence imposed on Hull ). If the legislature had intended to expressly and specifically authorize partially consecutive sentences, it could have done so ab initio, or certainly it could have done so after the Hull decision in 2003, or certainly after Judge Crone put it on notice in Failure of the legislature to specifically authorize partially consecutive sentences effectively renders partially consecutive sentences unauthorized and illegal. 15

17 interpretations of its enacted words do not match what the legislature intended. Courts ought not short-circuit that process by trying to interpret around the middleman. Ultimately, the Prewitt case is not supported by Indiana law, and its continued vitality should be questioned. 4 The greater weight of authority, particularly in construing criminal statutes, is to rest on the legislature s words and their plain and ordinary meanings. Here, the legislature s words present no ambiguity courts can impose sentences consecutively or concurrently, but not both. Wilson was sentenced to partially consecutive sentences under the 1995 version of the sentencing statute, which provided in pertinent part, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. Ind. Code (1995). 5 His partially consecutive sentence, therefore, is contrary to law. II. Wilson is Entitled, upon Resentencing, to Imposition of Fully Concurrent Sentences. If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. Ind. Code (2013). Indiana courts are duty bound to correct an illegal sentence, and A sentence in contravention of statutory authority constitutes fundamental error and cannot be ignored by a court of review. Hull, 799 N.E.2d at 1181 (citing Kleinrichert v. State, 297 N.E.2d 822, 826 (Ind. 1973); Golden v. State, 553 N.E.2d 1219, (Ind. Ct. App. 1990)). After Hull won his sentencing appeal on the ground that partially consecutive sentences (totaling seventy-five years imprisonment) were unauthorized and illegal, the case was remanded 4 It should be noted that this Court in Prewitt cited two civil cases and one criminal case from 1896 en route to allowing a court to re-write penal legislation if the court believes the legislature must have meant to enact words other than the words it enacted. 878 N.E.2d at Indeed, the concepts of partially consecutive, blended, or hybrid sentencing are not mentioned anywhere in the Indiana Code. 16

18 for resentencing. Hull, 799 N.E.2d at Upon resentencing, Hull was sentenced to fully consecutive sentences (totaling ninety years imprisonment). Hull v. State, 839 N.E.2d 1250, 1252 (Ind. Ct. App. 2005). That court reasoned, in part, that the longer sentence on remand was supported by the fact Hull had committed perjury after his original sentencing. Id. at That court grounded its reasoning on settled case law and court rule. Hicks v. State, 729 N.E.2d 144, 146 (Ind. 2000) (quoting Ind. Post-Conviction R. 1(10)(b)) ( [A resentencing] court cannot impose a more severe penalty than that originally imposed unless the court [finds after hearing] identifiable [criminal] conduct on the part of the petitioner that occurred after the imposition of the original sentence. ). Wilson s partially consecutive sentence was in error, and this Court is duty bound to correct that error. Furthermore, there is no record of additional criminal conduct by Wilson after his original sentencing. Since there are only two possible sentencing schemes here fully concurrent (forty-five years) or fully consecutive (ninety years or the augmented statutory maximum, whichever is less) and since Wilson cannot be resentenced to a longer sentence that he received originally (fifty years), Wilson is entitled to be resentenced to fully concurrent fortyfive year terms, five years less than the current (partially consecutive) sentence. This Court could resentence on its own, or remand with instructions to sentence Wilson to a fully concurrent fortyfive years in prison. The State respectively requests that this Court find the original partially consecutive sentence unauthorized, and resentence Wilson to serve a fully concurrent sentences totaling forty-five years imprisonment. 17

19 CONCLUSION The Professors respectively request that this Court find the original partially consecutive sentence unauthorized, and resentence Wilson to serve fully concurrent sentences totaling fortyfive years imprisonment. 18