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Attorneys for Appellant Gregory F. Zoeller Attorney General of Indiana David A. Arthur Deputy Attorney General Indianapolis, Indiana

Attorney for Appellee Mark Small Indianapolis, Indiana

______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 45S00-0806-CR-377 STATE OF INDIANA,

In the

FILED
of the supreme court, court of appeals and tax court

Jul 30 2009, 2:11 pm

CLERK

Appellant/Cross-Appellee (Respondent below), v. STEVE HERNANDEZ, Appellee/Cross-Appellant (Petitioner below). _________________________________ Appeal from the Lake Superior Court, No. 49G02-7505-CR-111 The Honorable Clarence D. Murray, Judge The Honorable T. Edward Page, Temporary Judge _________________________________ On Direct Appeal _________________________________ July 30, 2009

Sullivan, Justice.

Steve Hernandez and the State both appeal determinations made by the trial court with respect to Hernandez's petition for post-conviction relief regarding convictions and sentences for two murders committed in 1975. Because these crimes were committed prior to the 1977 effec-

tive date of our state's current criminal sentencing code, resolution of the issues in this case requires the application of certain principles and terminology infrequently used today. On the most consequential of these, we hold that Indiana law in effect at the time of Hernandez's crimes dictated that he was not eligible to be considered for parole absent executive clemency. Background

In 1975, when he was 19 years old, Hernandez and several older men robbed a married couple, Ivan Trajkovich and Lillian Trajkovich. In the course of the robbery, both Ivan and Lillian were killed. Hernandez and his co-defendants were tried together; the jury found Hernandez guilty of two counts each of what the law then called "murder in the perpetration of a robbery" and "murder in the first degree." Under the law then in effect, the trial court sentenced Hernandez to two terms of life in prison. On appeal, this Court affirmed the sentence. Gutierrez v. State, 270 Ind. 639, 388 N.E.2d 520 (1979). Collateral relief was subsequently denied as well. See Hernandez v. State, No. 45A03-9306-PC-197 (Ind. Ct. App. July 13, 1994), trans. denied.

In 2006, the Court of Appeals granted Hernandez authority to file a successive petition for post-conviction relief. Ind. Post-Conviction Rule 1(12). The petition alleged that the trial court had sentenced him to only one, not two, terms of life in prison; that the reason his sentence was being treated as two life sentences rather than one was due to confusion of [Hernandez's] case with the cases of [his] co-defendants." (Appellant's App. 19.) The post-conviction court denied the petition and Hernandez appealed. In 2007, while the appeal was pending before the Court of Appeals, Hernandez requested that he be allowed to return to the post-conviction court with a new claim. The Court of Appeals dismissed the appeal without prejudice, granted Hernandez authority to amend his successive petition for post-conviction relief, and remanded the matter to the post-conviction court for further consideration.

This new claim was that the Parole Board, by applying a 1979 statute (certain language in Ind. Code

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