ATTORNEY FOR APPELLANT

William C. Menges, Jr.

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Teresa Dashiell Giller

Deputy Attorney General

Indianapolis, Indiana  

=

	IN THE

	SUPREME COURT OF INDIANA

JASON M. SUNDAY,    	   		)

   						)

Appellant (Defendant Below), 	)	 

)	

      v.					)	Indiana Supreme Court

 						)	Cause No. 34S00-9902-CR-123

STATE OF INDIANA,	    		)	

)

Appellee (Plaintiff Below).		)

	APPEAL FROM THE HOWARD SUPERIOR COURT

	The Honorable Stephen M. Jessup, Judge

	Cause No. 34D02-9612-CF-0075

	ON DIRECT APPEAL

December 14, 1999

BOEHM, Justice.

	Jason M. Sunday pleaded guilty to several charges including rape as a Class A felony.  He was sentenced to an aggregate term of 113 years, including fifty-five years for rape.  His

sole claim of error in this appeal is that the trial court erred in adding five years to his rape

sentence based on his use of a firearm in the commission of the offense.  Because the State

did not follow the statutory charging procedure necessary to enhance the rape count under

Indiana Code § 35-50-2-11, we remand this case to the trial court with instructions to reduce

the sentence for rape to fifty years and the total sentence to 108 years.

Factual and Procedural Background

	The following version of events is taken from Sunday’s confession to police.  In the early morning hours of November 11, 1996, Sunday used a ladder to enter the home of M.C.

He was armed with a .22 semi-automatic.  M.C. was asleep in her bedroom, and Sunday

entered the room and took $25.00 from a cigarette case on her dresser.  He then “yanked the

blanket off of her,” and she started screaming.  Sunday pulled out his gun and told her to be

quiet.  He handcuffed M.C.’s hands behind her neck and raped her.  He then “hog tied” her

and shot once into the bed to scare her.  After she tried to break the string with which she

was tied, Sunday shot M.C. twice before his gun jammed.  He then fled the house.  

Sunday confessed to police and was arrested.  While in jail awaiting trial, he escaped and was charged with escape under a different cause number.  Several months later, Sunday

entered into a plea agreement with the State.  The agreement provided in relevant part that he would plead guilty to attempted murder, rape as a Class A felony, burglary as a Class B

felony, and escape as a Class C felony.  The plea agreement also provided that the burglary

sentence would be served concurrently with the attempted murder sentence, but left the

sentences on the remaining counts to the discretion of the trial court.  In exchange for his

pleas, the State agreed to dismiss several other charges.  

At the guilty plea hearing, the trial court stated that Sunday faced a possible sentence

of twenty to fifty years for rape as a Class A felony.  That is the statutory range.  See Ind. Code § 35-50-2-4 (1998).  The trial court also stated on two different occasions that Sunday

faced a total maximum sentence of 108 years under the plea agreement, i.e., fifty years for

attempted murder, fifty years for rape and eight years for escape.  At sentencing, the State

argued that the trial court should impose an aggregate sentence of “a hundred and eight years

which is the maximum penalty, which this man deserves.”  The trial court then imposed the

maximum sentences for attempted murder and escape, but imposed a fifty-five year sentence

for rape.  The trial court ordered these counts served consecutively, for a total sentence of

113 years imprisonment.  

Enhancement of Sentences Under Indiana Code § 35-50-2-11

The trial court explained that the fifty-five year rape sentence was “the maximum allowed by law . . . [f]ifty years for the rape and five years for having committed same while

armed with a deadly weapon.”  Although the trial court did not cite the statutory basis for the additional five years, it appears that it relied on Indiana Code § 35-50-2-11, which provides

in its entirety: 

(a) As used in this section, “firearm” has the meaning set forth in IC 35-47-1-5.

(b) As used in this section, “offense” means:

(1)	a felony under IC 35-42 that resulted in death or serious bodily injury;

(2)	kidnapping; or

(3)	criminal confinement as a Class B felony.

(c) The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed

term of imprisonment if the state can show beyond a reasonable doubt that the person

knowingly or intentionally used a firearm in the commission of the offense.

(d) If after a sentencing hearing a court finds that a person who committed an offense used a firearm in the commission of the offense, the court may sentence the person

to an additional fixed term of imprisonment of five (5) years.

Sunday contends that the trial court erred in adding five years to the otherwise maximum sentence of fifty years for rape as a Class A felony because the State did not

comply with the requirement of subsection (c) that it seek the enhancement “on a page

separate from the rest of a charging instrument.”  The State responds that the statute “does

not contain the language ‘must,’ in fact sections (c) and (d) do not appear to dictate that

section (c) must be present at all.”1  We agree with Sunday, and accordingly remand this case to the trial court to reduce the rape sentence to fifty years.  

In construing a statute, we look to the plain, ordinary, and usual meaning of the

language unless the statute itself clearly provides a contrary meaning.  Riley v. State, 711 N.E.2d 489, 495 (Ind. 1999).  We examine the statute as a whole and do not presume that

the legislature intended statutory language to be applied illogically or to bring about an

unjust or absurd result.  Id.  In addition, it is well established that penal statutes must be strictly construed against the State.  See Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996).

	Although subsection (d) plainly provides for the addition of five years imprisonment when an offense is committed by the use of a firearm, subsections (a), (b), and (c) place

important limitations on the imposition of this additional sentence.  Subsection (a)

incorporates the definition of a firearm; subsection (b) limits the offenses for which the extra

time may be added; and subsection (c) requires that the allegation that a firearm was used

in the commission of the offense be filed on a separate page of the charging instrument and

that the State prove it beyond a reasonable doubt.  Taking this statutory provision as a whole,

it is clear that the legislature intended to require the State to seek a five-year enhancement

by first filing its allegation on a separate page of the charging instrument.  Because the State

did not comply with subsection (c) in this case, the trial court erred by adding five years to the otherwise maximum sentence of fifty years for rape as a Class A felony.2 	 

Conclusion

	This case is remanded to the trial court with instructions to reduce the sentence for rape to fifty years thereby reducing the total sentence to 108 years imprisonment.

	SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.