ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. DIRK CARNAHAN
Vincennes, Indiana Attorney General of Indiana
MATTHEW D. FISHER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
TYSON J. WILKIE, )
vs. ) No. 14A04-0401-CR-8
STATE OF INDIANA, )
APPEAL FROM THE DAVIESS SUPERIOR COURT
The Honorable Judith H. Dwyer, Judge
Cause No. 14D01-0208-FC-736
August 18, 2004
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
In October 2003, Tyson Wilkie pleaded guilty to two counts of Causing Death
When Operating a Motor Vehicle With a Schedule I Controlled Substance in the
Body, both as Class C felonies. The trial court sentenced Wilkie to
the maximum sentence of eight years on each count and ordered him to
serve those sentences concurrently. Wilkie now appeals and raises the following issues
1. Whether the trial court abused its discretion when it imposed the eight-year sentence.
2. Whether Wilkies eight-year sentence is inappropriate in light of the nature of the
offense and his character.
3. Whether the trial court abused its discretion when it denied Wilkies request that
he be given pre-trial credit for 299 days he spent on home detention
prior to sentencing.
FACTS AND PROCEDURAL HISTORY
During the late morning of July 10, 2002, Wilkie was driving his Firebird
southbound on State Road 57 when he crossed the center line and collided
with a coal truck traveling in the northbound lane. Wilkies Firebird began
to spin and hit the northbound vehicle of Aaron Sims head-on. Gart
Salmon, Wilkies best friend, and A.W., Wilkies younger brother, were both passengers in
Wilkies vehicle when the collision occurred. Both Sims and Salmon were killed,
and Wilkie and A.W. sustained injuries. In particular, Wilkie suffered a broken
neck, a broken back, and brain injuries. Emergency crews transported Wilkie to
Deaconess Hospital in Evansville, where he tested positive for marijuana. On the
day of the accident, Wilkie was driving on a suspended license.
In August 2002, the State charged Wilkie with two counts of causing death
when operating a motor vehicle while intoxicated, as Class C felonies; two counts
of reckless homicide, as Class C felonies; driving while suspended, a Class A
misdemeanor; and reckless driving, a Class B misdemeanor. In late August, the
State released Wilkie to home detention. In June 2003, Wilkie returned to
jail until his sentencing in December 2003.
In October 2003, Wilkie pleaded guilty to two counts of Class C causing
death when operating a motor vehicle with a Schedule I controlled substance in
the body. In exchange for Wilkies plea, the State agreed to dismiss
the remaining charges. The parties also agreed that sentencing on each count
would be left to the trial court, but that Wilkie would serve the
sentences imposed concurrently.
Prior to sentencing, Wilkies counsel submitted a pre-sentence memorandum in which he proffered
several mitigating factors and asserted that he should be given pre-trial credit for
the 299 days he spent on home detention. Wilkie also contended that
the presumptive term of four years was appropriate. The State argued that
the trial court should impose the maximum sentence of eight years on each
count to run concurrently.
The trial court identified two aggravating factors: (1) the risk that Wilkie
would commit another crime, and 2) he was in need of rehabilitation best
provided by incarceration. The court identified no mitigating factors. The court
then sentenced him to eight years on each count and, consistent with the
plea agreement, ordered Wilkie to serve those terms concurrently.
See footnote Wilkie now appeals.
DISCUSSION AND DECISION
Issue One: Aggravators and Mitigators
We first address Wilkies argument that the trial court abused its discretion when
it imposed sentence. Specifically, Wilkie asserts that (1) the trial court failed
to acknowledge several proffered mitigating factors, (2) the aggravating factors identified by the
court are not supported by the record, and (3) the court failed to
engage in a proper balancing of the aggravators and the mitigators. We
address those arguments in turn.
Sentencing decisions lie within the sound discretion of the trial court, and we
reverse only for an abuse of that discretion. ONeill v. State, 719
N.E.2d 1243, 1244 (Ind. 1999). When a trial court imposes an enhanced
sentence, it must identify all of the significant aggravating and mitigating factors, state
the specific reason why each factor is considered aggravating or mitigating, and articulate
its evaluation and balancing of those factors. Brown v. State, 760 N.E.2d
243, 245 (Ind. Ct. App. 2002), trans. denied. A single aggravating factor
is sufficient to justify an enhanced sentence. Lewis v. State, 759 N.E.2d
1077, 1087 (Ind. Ct. App. 2001), trans. denied.
A. Mitigating Factors
A finding of mitigating circumstances, like sentencing decisions in general, lies within the
trial courts discretion.
See Widener v. State, 659 N.E.2d 529, 533 (Ind.
1995). The trial court is not obligated to find mitigating factors or
explain why it has chosen not to do so. Antrim v. State,
745 N.E.2d 246, 248 (Ind. Ct. App. 2001). A trial court must
include mitigators in its sentencing statement only if they are used to offset
aggravators or to reduce the presumptive sentence, and only those mitigators found to
be significant must be enumerated. Battles v. State, 688 N.E.2d 1230, 1236
(Ind. 1997). In addition, the trial court is not required to give
the same weight or credit to mitigating evidence as does the defendant.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). Although a trial
court must consider evidence of mitigating circumstances presented by the defendant, it is
not obligated to explain why it has found that the mitigator does not
exist. Allen v. State, 722 N.E.2d 1246, 1252 (Ind. Ct. App. 2000).
Indeed the proper weight to be afforded by the trial court to
the mitigating factors may be to give them no weight at all.
Ross v. State, 676 N.E.2d 339, 347 (Ind. 1997).
Here, the trial court did not find any mitigating circumstances. Wilkie asserts
that the court abused its discretion in that regard and claims that the
court overlooked several significant mitigating factors.
See footnote First, Wilkie claims that the trial
court abused its discretion when it failed to find his guilty plea as
a mitigating factor. However, not every guilty plea must be credited as
a mitigating circumstance.
See Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind.
1999), cert. denied, 531 U.S. 858 (2000). And the trial court addressed
that proffered mitigator at sentencing as follows:
I do not consider pleading guilty as a mitigating circumstance. I mean,
the defendant [chose] to plead guilty. I dont think in this instance
it helps the victims or the families at all. I mean, you
cant do anything to the victim, whether you plead guilty or deny it.
I mean, the victim is in the same position, the actual victim,
so I dont consider that a mitigating circumstance.
Transcript at 39. Thus, the trial court considered Wilkies guilty plea but
decided not to give that proposed mitigator any weight. See Ross, 676
N.E.2d at 347. The court acted within its discretion in that regard.
In a similar argument, Wilkie asserts that the trial court should have found
his remorse to be mitigating. In support, he directs us to his
statements during the sentencing hearing that he is sorry for what happened and
wishes that he could trade places with the two victims. But in
the Pre-Sentence Investigation Report, Chief Probation Officer Beth OBrian stated that during her
interview with Wilkie, [t]he defendant did not express much remorse for his actions.
Appellants App. at 247. While Wilkie mentioned the loss of his
best friend to OBrian, she noted that he failed to acknowledge the second
victim at any time during [the] interview. Id. Moreover, the trial
court was able to observe Wilkie first-hand at the sentencing hearing and, thus,
is a much better judge of his demeanor and sincerity. Regarding Wilkies
expressed remorse, the court stated:
I really dont consider remorse . . . a mitigating circumstance. I
mean, quite frankly, everyone when they get to this point is going to
be sorry. You are sorry for all sorts of reasons, you know,
most of all, probably, whats going to happen to you, and thats only
Transcript at 39. Based on that statement, it is reasonable to infer
that the trial court did not believe that Wilkies remorse was genuine, and
we will not second-guess the trial court on such credibility determinations. The
trial court did not abuse its discretion when it decided not to give
Wilkies alleged remorse any mitigating weight.
Next, Wilkie makes several arguments related to his alleged lack of criminal history,
general character, and history of a law-abiding life. Specifically, Wilkie points out
that he has only one misdemeanor conviction and that the trial court should
have found his criminal history, or lack thereof, as mitigating. To the
contrary, however, the trial court considered Wilkies criminal history, which consists of one
conviction but seven prior charges, when it identified aggravating factors and explained in
relevant part as follows:
In considering aggravating circumstances, I can consider the risk that you would commit
another crime, and I can certainly consider arrests as other crimes. I
do not necessarily consider I mean, the fact that there are not
convictions, I can still consider the arrests. One thing, Mr. Wilkie, that
bothers me about your record, very seriously, is that this charge was filed
August 27, 2003, and on January of 2002, in Monroe County, you were
charged with Operating a Vehicle While Intoxicated Endangering a Person, and Operating a
Vehicle While Intoxicated With a B.A.C. of .08 of More. Now, [your
attorney] indicates this has been dismissed, but it could have been dismissed for
a variety of reasons. You were still charged with that, and right
or wrong, that would scare me to death, so, you know, obviously it
didnt keep you from doing the second [offense] involving, basically, the same type
of things, except a little more serious, . . . . You
have several charges which have been dismissed. To me, this indicates that
you need rehabilitation that will best be served by incarceration, because you were
allowed to be on the pre-trial diversion program twice, you were placed on
probation once or twice, and none of these things seemed to affect you
or keep you from committing another crime. I mean, these are not
horrendous crimes, but you finally ended up doing that, so, I would say
that you need rehabilitation, which is best provided by incarceration . . .
Transcript at 40-41. The trial court did not abuse its discretion when
it refused to find Wilkies criminal history as a mitigating factor.
Wilkie also claims that the evidence shows that there is little or no
risk of his re-offending. In support, he again directs us to his
testimony at the sentencing hearing in which he stated that because of the
medication he takes to prevent seizures, he cannot use marijuana in the future.
He also points to his remorse as evidence that he is unlikely
to re-offend. But similar to Wilkies claim of remorse, the trial court
considered and rejected Wilkies assertion that he will not use drugs in the
future. Specifically, the court stated:
Turning my attention to another thing that Mr. Wilkie said on the stand,
he takes his medication, therefore, he can never take illegal drugs again.
Well, I dont know about you, Mr. Wilkie, but Im sure a lot
of people in this courtroom know people with heart conditions, artery conditions, they
smoke, they drink. I have smoked myself when I knew I shouldnt
with [an] artery condition. So, this doesnt guarantee anything to me.
You also drove when, in fact, you didnt have a license, so you
are not strictly going by the law at all times.
Id. at 39-40. Once again, the trial court acted within its discretion
when it chose not to find credible Wilkies assertion that he would not
re-offend because of his medications and his remorse.
Further, Wilkie discusses many of the mitigating factors listed under Indiana Code Section
35-38-1-7.1(c) and claims that there is evidence in the record regarding those factors.
But none of his arguments on those factors is convincing. For
example, he directs us to the statutory mitigating factor that the crime neither
caused nor threatened serious harm to persons or property or the person did
not contemplate that it would do so, I.C. § 35-38-1-7.1(c)(1), and asserts that
because there is no evidence that he contemplated the deaths of two persons
when he ingested marijuana, the court should consider that as mitigating. But
as the State points out, a lack of intent to cause death is
irrelevant to the crimes to which Wilkie pleaded guilty. See Ind. Code
§ 9-30-5-5(a) (stating person who causes death of another when operating vehicle with
controlled substance listed in schedule I in body commits Class C felony).
Thus, we agree with the State that that mitigating factor does not apply.
Wilkie also contends that the court should have found as mitigating that the
crime was the result of circumstances unlikely to recur, see I.C. § 35-38-1-7.1(c)(2),
but that argument is identical to his claim that he is unlikely to
re-offend, which the trial court rejected. Indeed, many of Wilkies remaining arguments
regarding mitigating factors listed under Indiana Code Section 35-38-1-7.1(c) are substantially similar to
factors already discussed above and which the trial court properly rejected. See
I.C. § 35-48-1-7.1(c)(6) (person has led law-abiding life); 35-48-1-7.1(c)(7) (person likely to respond
to probation); 35-48-1-7.1(c)(8) (person unlikely to commit another crime).
The final two mitigating factors Wilkie proffered are: (1) he will make
restitution to the victims; and (2) imprisonment will result in undue hardship on
him. See I.C. § 35-48-1-7.1(c)(9), (10). In support of these mitigating
factors, Wilkie directs us to his testimony that he will seek employment upon
his release and make restitution to the victims families and insurance companies.
He also contends that because of the nature and seriousness of his injuries,
in addition to the mental affects of the death of his best friend,
prison will impose an undue hardship on him. Brief of Appellant at
17. But we cannot conclude that either of those circumstances, if at
all mitigating, qualify as significant mitigating factors. Accordingly, the trial court did
not abuse its discretion when it refused to find such factors as mitigating.
See Battles, 688 N.E.2d at 1236 (stating trial court must enumerate only
those mitigators found to be significant).
B. Aggravating Factors
Next, Wilkie claims that the evidence does not support the aggravating factors identified
by the trial court. While Wilkies argument on this issue contains citations
to the record, he does not support his argument with proper citations to
authority. See Ind. App. R. 46(A)(8)(a). Thus, Wilkie has failed to
present cogent argument and has waived his claim on appeal. See Harrison
v. State, 707 N.E.2d 767, 777 (Ind. 1999) (stating failure to present cogent
argument results in waiver), cert. denied. 529 U.S. 1088 (2000).
Waiver notwithstanding, the trial courts statements during the sentencing hearing clearly set forth
the evidence on which it relied in determining the presence of the two
aggravating factors. The information contained in the Pre-Sentence Investigation Report, in addition
to the testimony at the sentencing hearing, supports the aggravating factors identified by
the court. The trial court did not abuse its discretion when it
found two aggravating factors, and those aggravators justify the courts imposition of an
eight-year sentence. See Lewis, 759 N.E.2d at 1087 (stating single aggravating factor
is sufficient to justify enhanced sentence).
The trial court did not identify any mitigating factors, and we have already
determined that the court did not abuse its discretion in that regard.
Thus, a balancing of the aggravating and mitigating factors would have been futile.
Moreover, the trial court indicated in its written sentencing order that the
aggravating factors outweighed the mitigating circumstances. Thus, Wilkies attack on the trial
courts balancing of the aggravating and mitigating factors lacks merit.
Issue Two: Indiana Appellate Rule 7(B)
Wilkie next asserts that his eight-year sentence is inappropriate. Under Article VII,
Section 6 of the Indiana Constitution, we have the constitutional authority to review
and revise sentences. Foster v. State, 795 N.E.2d 1078, 1092 (Ind. Ct.
App. 2003), trans. denied. However, we exercise with great restraint our responsibility
to review and revise sentences, recognizing the special expertise of the trial bench
in making sentencing decisions. Id. A sentence that is authorized by
statute will not be revised unless it is inappropriate in light of the
nature of the offense and the character of the offender. Id. (citing
Ind. Appellate Rule 7(B)).
Initially, the State asserts that because he pleaded guilty pursuant to a plea
agreement, Wilkie is barred from challenging the appropriateness of his sentence. In
support, the State directs us to our recent decision in Gist v. State,
804 N.E.2d 1204, 1206 (Ind. Ct. App. 2004). In that case, we
addressed a defendants claim that his sentence was inappropriate and there, as in
this case, the defendant appealed his sentence after having pleaded guilty. The
plea agreement in Gist provided in part that (1) the State would recommend
to the trial court that the defendant be sentenced, at most, to the
presumptive term of ten years, and (2) that the State acknowledged that its
representation that it would not recommend more than the presumptive term was an
inducement to the defendant to enter into the agreement. Id. The
trial court sentenced the defendant to ten years, consistent with the States recommendation,
and the defendant asserted that his ten-year sentence was inappropriate. Id.
In analyzing that claim, we stated that [a] plea agreement is contractual in
nature and binds the defendant, the State, and the trial court. Id.
We then determined:
By entering into [the] agreement with the State, Gist necessarily agreed that a
ten-year sentence was appropriate. If Gist thought that a ten-year sentence was
inappropriate, then presumably he would not have entered into the plea agreement in
the first place. Where, as here, a defendant is sentenced in accordance
with a plea agreement an agreement he voluntarily entered into, we cannot
say that the sentence is inappropriate.
Id. at 1206-07.
Gist is distinguishable because unlike the plea agreement in that case, the agreement
here did not contain a provision in which the State (1) agreed to
limit its sentencing recommendation to the presumptive term, and (2) acknowledged that the
defendant was induced to enter into the agreement based on that sentencing recommendation.
Rather, Wilkies plea agreement provides in relevant part that [t]he defendant understands
a person who commits a [C]lass C felony shall be imprisoned for a
fixed term of four years with not more than four years added for
aggravating circumstances or not more than two years subtracted for mitigating circumstances.
Appellants App. at 211. In other words, Wilkies plea agreement contained boilerplate
language regarding the possible sentencing range for the class of offense to which
he was pleading guilty. By signing an agreement in which he attested
only that he understood the range of sentences which the trial court could
impose by law, Wilkie did not in any way agree that a maximum
sentence was appropriate.
Further, we disagree with the decision in Gist to the extent that
it suggests that anytime a defendant voluntarily enters into a plea agreement, that
defendant is thereafter barred from challenging his sentence as inappropriate. See id.
at 1206 (Where, as here, a defendant is sentenced in accordance with a
plea agreement an agreement he voluntarily entered into, we cannot say that
the sentence is inappropriate.). In particular, we cannot agree with Gists interpretation
of our decision in Mann v. State, 742 N.E.2d 1025 (Ind. Ct. App.
2001), trans. denied. The panel in Gist stated that its holding is
consistent with [Mann], where we said that a sentence fell within the sentencing
range provided for in the plea agreement was not manifestly unreasonable even though
the defendant was sentenced at the upper end of that range. 804
N.E.2d at 1207 (citation omitted). However, the only discussion in Mann of
the defendants manifestly unreasonable challenge appeared in a footnote and provided:
Because we remand for correction of Manns sentence, we do not address his
implicit premise that a sentence to which a defendant has agreed in a
plea bargain can be manifestly unreasonable. Mann entered into a plea agreement
that provided the trial court could impose a sentence between thirty and fifty
years. Manns sentence of fifty years, although at the upper end of
his agreement, was still within the agreement.
742 N.E.2d at 1026 n.1. Accordingly, the panel in Mann did not,
in fact, determine whether Manns sentence was manifestly unreasonable.
See footnote Today, we squarely
address the question left open in
Mann and hold that where a defendant
enters into a plea agreement and, pursuant to that agreement, attests only that
he understands that the trial court will sentence him in accordance with statute,
the defendant does not necessarily agree that a maximum sentence is appropriate and
does not waive appellate review of his sentence under Indiana Appellate Rule 7(B).
Still, if a defendant signs a plea agreement in which he agrees to
a specific term of years, or to a sentencing range other than the
range authorized by statute,See footnote he will not be able to claim thereafter that
a sentence imposed consistent with the agreement is inappropriate. And although we
take issue with the broad language that appears in
Gist, we agree with
the result in that case where the State agreed to recommend the presumptive
term, the defendant expressly acknowledged that the States recommendation induced him to plead
guilty, and the trial court imposed the presumptive term. But we reject
the idea that a defendant can agree to be sentenced in accordance with
the statutory range applicable to his offense and, as a result of that
agreement, be barred from claiming that the trial courts decision to impose the
maximum sentence is inappropriate under Appellate Rule 7(B).
Having determined that Wilkie may challenge the appropriateness of his sentence, we examine
the nature of the offense and Wilkies character to determine whether a sentence
of eight years is inappropriate.
See Ind. App. R. 7(B). Wilkie
asserts that his was not one of the worst offenses and that he
is not one of the worst offenders. But as we explained in
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied:
There is a danger in applying [the worst offense and worst offenders] principle
that is illustrated in the instant case. If we were to take
this language literally, we would reserve the maximum punishment for only the single
most heinous offense. In order to determine whether an offense fits that
description, we would be required to compare the facts of the case before
us with either those of other cases that have been previously decided, or
more problematically with hypothetical facts calculated to provide a worst-case scenario
template against which the instant facts can be measured. If the latter
were done, one could always envision a way in which the instant facts
could be worse. In such case, the worst manifestation of any offense
would be hypothetical, not real, and the maximum sentence would never be justified.
This leads us to conclude the following with respect to deciding whether a
case is among the very worst offenses and a defendant among the very
worst offenders, thus justifying the maximum sentence: We should concentrate less on
comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for
which the defendant is being sentenced, and what it reveals about the defendants
character. Issue Three: Pre-Trial Credit
Wilkies actions resulted in the death of two persons, as well as injuries
to his minor brother. The pre-sentence investigation report lists a litany of
charges that have been filed against Wilkie over the years, some of which
involve his driving in an impaired state. We agree with the trial
courts statements that Wilkie has had many opportunities to learn from his past
mistakes, but he has failed to take advantage of those opportunities. Rather,
he continued his criminal behavior with dire consequences. We conclude that an
eight-year sentence is not inappropriate.
Finally, Wilkie contends that the trial court abused its discretion when it failed
to give him pre-trial credit for the 299 days he spent on home
detention prior to sentencing. As our supreme court noted in Purcell v.
State, 721 N.E.2d 220, 224 n. 6 (Ind. 1999), a trial court is
within its discretion to deny a defendant credit toward sentence for pre-trial time
served on home detention. The court further explained that a defendant is
only entitled to credit toward sentence for pre-trial time served in a prison,
jail or other facility which imposes substantially similar restrictions upon personal liberty.
Id. Moreover, in in Molden v. State, 750 N.E.2d 448, 451 (Ind.
Ct. App. 2001), this court determined that a trial court did not abuse
its discretion when it denied credit time under Indiana Code Section 35-50-6-3 to
a defendant who was confined in home detention while awaiting trial.
In support of his contention that he should have been given credit for
his home detention, Wilkie relies on cases in which home detention was ordered
as part of an executed sentence, see Purcell, 721 N.E.2d at 221, and
as a term of probation. See Dishroon v. State, 722 N.E.2d 385,
386 (Ind. Ct. App. 2000), superseded by Ind. Code § 35-38-2-3(h). Those
cases do not involve pre-trial credit under Indiana Code Section 35-50-6-3(a) and, thus,
are not applicable. The trial court did not abuse its discretion when
it refused to give Wilkie pre-trial credit for the 299 days he spent
on home detention.
KIRSCH, C.J., and RILEY, J., concur.
A person who commits a Class C felony shall be
imprisoned for a fixed term of four (4) years, with not more than
four (4) years added for aggravating circumstances or not more than two (2)
years subtracted for mitigating circumstances. Ind. Code § 35-50-2-6(a).
Footnote: On June 24, 2004, after briefing was completed in this case,
the United States Supreme Court issued its opinion in
Blakely v. Washington, --
U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that
decision, but we leave for another day whether and, if so, to what
extent Blakely may affect a trial courts finding of aggravators to support an
enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B).
To the extent that some of Wilkies proffered mitigating factors
overlap, we discuss those together.
Footnote: Like the plea agreement in this case, the agreement in
Mann provided that the trial court could impose a sentence of not less
than thirty years nor more than fifty years, which is the statutory sentencing
range for a Class A felony. Mann, 742 N.E.2d at 1026.
For example, if Wilkie had agreed that the trial court
could impose a sentence of not less than four years but not more
than six years on his Class C felony conviction, he could not have
challenged a six-year sentence had the court imposed it.
Footnote: We reject the States contention that Wilkie may not challenge
his sentence because of comments he made during the sentencing hearing. Our
review of Wilkies testimony as a whole shows that he believed that the
trial court should impose four years executed and four years suspended to probation.
Wilkies counsel, however, asked the trial court to impose the presumptive term
of four years.