ATTORNEY FOR APPELLANT
Bruce R. Snyder
P. Stephen Miller
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
RICKY WARLICK, )
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 02S00-9810-CR-539
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John Surbeck, Jr., Judge
Cause No. 02D04-9606-CR-259
ON DIRECT APPEAL
January 27, 2000
Ricky Warlick pleaded guilty to murder and burglary as a Class A felony.
The State sought a sentence of life imprisonment without parole, alleging that
Warlick intentionally killed while committing a burglary. Warlick was sentenced to life
imprisonment without parole on the murder count, to be served concurrently with a
thirty year sentence for burglary. In this direct appeal of that sentence,
Warlick contends that (1) the trial court considered non-statutory aggravators; (2) the trial
court failed to consider mitigating circumstances clearly supported by the record; and (3)
the trial court improperly weighed the aggravating and mitigating circumstances. We affirm
the trial court.
Factual and Procedural Background
At approximately 6:00 a.m. on June 13, 1996, Annie Warlick was lying on
the sofa of her sisters home where she had been staying for several
weeks. She was holding her infant daughter, Tekia, and her brother was
sitting at the other end of the sofa. Warlick, Annies estranged husband,
entered the home, put a gun to Annies head, and fired two shots.
Warlick then turned and walked out of the house. He drove
away, threw the gun out the car window, and went to his aunts
home where he told her of the killing and asked her to take
him to the police department. Warlicks aunt called his father, who upon
his arrival told her to call 911, which she did.
Warlick was charged with murder, burglary as a Class A felony, and criminal
recklessness as a Class D felony. The State initially sought the death
penalty, alleging that Warlick had intentionally killed Annie while committing or attempting to
commit burglary. See Ind. Code § 35-50-2-9(b)(1)(B). That count was later
dismissed at the request of the victims family and replaced with a request
for life without parole, based on the same aggravator.
On February 5, 1998, Warlick pleaded guilty to all counts without a plea
agreement. After the penalty phase hearing, the trial court found that Warlick intentionally
killed Annie during the commission of a burglary. It found Warlicks remorse
as the sole mitigating circumstance, found that the aggravating circumstance substantially outweigh[ed] the
mitigating circumstance, and imposed a sentence of life without parole on the murder
count, to be served concurrently with a term of thirty years for the
burglary count. The State dismissed the criminal recklessness count.
I. Non-Statutory Aggravators
Warlick contends that the trial court erred in considering non-statutory aggravating circumstances in
imposing a sentence of life without parole. In Bivins v. State, 642
N.E.2d 928, 955 (Ind. 1994), this Court held that trial courts, in deciding
whether to impose a sentence of death, are limited by the aggravating circumstances
specified in the death penalty statute. See Ind. Code § 35-50-2-9(b).
The same rule applies to life imprisonment without parole. See Farber v.
State, 703 N.E.2d 151, 153 (Ind. 1998); Ajabu v. State, 693 N.E.2d 921,
936 (Ind. 1998) (The statute provides that life without parole is imposed under
the same standards and is subject to the same requirements.).
Warlick points to three alleged aggravators that he contends the trial court impermissibly
considered. First, he quotes the trial courts statement at the sentencing hearing
that he forced his way into the house contrary to a protective or
restraining order . . . . He contends that the use of
the word force was impermissible because the evidence at the guilty plea hearing
was that he just walked up the step, opened the door and walked
in the house. The word force does not appear in the trial
courts sentencing order, which states that Warlick without authority or invitation, entered the
residence of Annie Warlick contrary to a restraining or protective order. The
trial courts use of the word force at the sentencing hearing, if error
at all, is harmless because it was not included in the sentencing order.
See Prowell v. State, 687 N.E.2d 563, 565 (Ind. 1997).
Second, Warlick asserts since the violation of a protective order was not alleged,
considering it as an aggravator was also impermissible. As this Court observed
Prowell, a death penalty case,
the circumstances of the crime often provides an appropriate context for consideration of
the alleged aggravating and mitigating circumstances. Inclusion of the nature and circumstances
of the offense in a trial courts sentencing order does not necessarily compel
a conclusion that such matters were improperly considered and weighed as aggravating circumstances.
Id. at 567. Similarly, in Holmes v. State, 671 N.E.2d 841, 850
(Ind. 1996), this Court found that
the trial judges references in the sentencing order to premeditation, deliberation, moving intently
from one killing to the next, and the use of extreme force and
torture, makes i[t] perfectly clear that she was considering the manner in which
the aggravators occurred for the sole purpose of giving an appropriate weight to
those proved aggravators.
Cf. Stevens v. State, 691 N.E.2d 412, 437 (Ind. 1997) (Even if the
facts articulated in the judges surplus statement indicate some influence on his decision,
they appear mostly to be restatements of facts which would fall within the
charged aggravating factors.). In light of these authorities, we find no error
in the trial courts mention of the violation of a restraining or protective
The court was merely describing the nature of the offense and
restating facts necessary to determine the appropriate weight to be given to it,
not finding a separate improper aggravator.
Finally, Warlick argues that it was improper for the trial court to consider
that the killing was with total disregard for the minor child held by
the victim Annie P. Warlick . . . . He contends that
this was not part of the burglary alleged as a statutory aggravator and
that the facts show that he did not know until after the shooting
that his daughter was in Annies arms. As explained above, trial courts
are given some latitude in describing the nature of the statutory aggravating circumstance
in order to determine the appropriate weight to give it. The trial
courts observation was supported by the evidence. Although Warlick stated at the
guilty plea hearing that he didnt even notice my daughter laying there till
after I shot, when asked if he had taken any concern if anybody
was with Annie at all, he responded that he had not. In
sum, there was an adequate factual basis for this statement in the trial
courts sentencing order and its mention did not violate
II. Failure to Consider Mitigating Circumstances
The trial court found Warlicks remorse as the sole mitigating circumstance. Warlick
contends that the trial court should have also found as mitigating circumstances his
lack of criminal history and acceptance of responsibility by surrendering to police.
The allegation that the trial court failed to find mitigating circumstances requires Warlick
to establish that the mitigating evidence is both significant and clearly supported by
the record. See Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).
We review the trial courts finding of mitigating circumstances for an abuse
of discretion. See Penick v. State, 659 N.E.2d 484, 488 (Ind. 1995).
As to the first of these, Warlick points to the following comment by
the State: The only possible mitigator that I could see here is
that he has a lack of significant criminal history. Not a lack
of any criminal history but a lack of a significant criminal history .
. . .
One of Warlicks attorneys later argued as mitigation that
crimes have all been misdemeanors prior to this time and theyve all involved
his former wife, Annie Warlick. The only place thats not 100% true
is that he had a reckless driving and he had a resisting arrest
involving an assault back in Tennessee when he was roughly twenty-nine years old.
Nevertheless, the trial court rejected this proffered mitigating circumstance, observing that Warlicks criminal
history certainly is significant and I suppose as a matter of hindsight its
what led up to where we are today, a series of domestic batteries,
invasion of privacies, all involving domestic type of matters. This was not
an abuse of discretion.
Nor did the trial court abuse its discretion by failing to find Warlicks
surrender to the police to be mitigating. Warlick shot Annie in plain
view of her brother who was sitting a few feet away. Had
he not surrendered, he would no doubt have been apprehended in short order.
Compare Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) ([D]efendants eventual
capture and arrest were nigh unavoidable, and we cannot say that the trial
court abused its discretion in failing to find that his voluntary statement to
police was a mitigating circumstance entitled to any significant weight.) with Brewer v.
State, 646 N.E.2d 1382, 1386 (Ind. 1995) ([A]ppellant had clearly succeeded in escaping
responsibility for the heinous crime that he had committed nearly fifteen years before.
His surrender and subsequent confession provided a major benefit to the community;
that benefit to society should be reflected in the sentence imposed.).
III. Weighing the Aggravating and Mitigating Circumstances
As a final point, Warlick argues that the trial court failed to properly
weigh the aggravating and mitigating circumstances. He concedes that the trial court
has discretion in determining what weight to assign to these factors, but nonetheless
contends that the trial court gave too much weight to the aggravating circumstance
and not enough weight to the mitigating circumstances. His argument regarding the
aggravating circumstance relies on Justice DeBrulers concurring opinion in Matheney v. State, 583
N.E.2d 1202, 1210 (Ind. 1992): [W]here the intent of the burglary is
the intent to kill, the weight of the aggravator is greatly diminished, for
the mind had formed but a single felonious intent. The majority opinion
did not embrace this view but rather held: The General Assembly could
reasonably have determined that a murder committed by breaking and entering a dwelling
in the place where a person should be able to feel secure, merited
the death penalty. Id. at 1208. Although the aggravating circumstance here,
and in Matheney, may not be the weightiest one, the trial court was
certainly allowed to give it considerable weight.
Warlick also argues that the trial court did not give enough weight to
the mitigating circumstances. However, as explained in Part II.,
supra, the trial
court did not abuse its discretion by failing to find Warlicks criminal history
or acceptance of responsibility as mitigating circumstances. Therefore, what remains is Warlicks
remorse after the offense as the sole mitigating circumstance to be weighed against
his intentional killing of Annie during the course of a burglary as an
aggravating circumstance. The trial court concluded that [t]he aggravating circumstance of the
intentional killing by the defendant, Ricky P. Warlick, Sr. of the victim, Annie
Warlick, during the commission of a felony burglary, substantially outweighs the mitigating circumstance
of the defendants remorse.
Although this Court has the constitutional authority to review and revise sentences, Ind.
Const. art. VII, ' 4, it will not do so unless the sentence
imposed is Amanifestly unreasonable in light of the nature of the offense and
the character of the offender.@ Ind. Appellate Rule 17(B).
review under Rule 17(B) is very deferential to the trial court: A[T]he issue
is not whether in our judgment the sentence is unreasonable, but whether it
is clearly, plainly, and obviously so.@ Prowell v. State, 687 N.E.2d 563,
568 (Ind. 1997). The nature of the offense, the premeditated killing of
ones estranged wife by shooting her at close range without provocation, is severe
and troubling. Weighed against the character of the offender, a man who
showed remorse after the fact but had a history of misdemeanor domestic offenses
against the victim, does not lead us to conclude that a sentence of
life imprisonment without parole is manifestly unreasonable.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs in result.
Although Warlicks principal brief merely asserts that the violation of a
protective order was not alleged, his reply brief adds that [t]he only evidence
of a restraining order at the penalty phase was the mention of a
restraining order the terms of which were not discussed and the existence of
which was never formally determined. He further points out that its existence
was based solely on hearsay. However, Warlick did not object to this
testimony and the [f]ailure to object at trial waives any claim of error
and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes and
to establish a material fact at issue. Allen v. State, 686 N.E.2d
760, 775 (Ind. 1997).
The death penalty statute lists [t]he defendant has no significant history
of prior criminal conduct as a mitigating circumstance. Ind. Code § 35-50-2-9(c)(1)
(1998). This language differs from the non-capital sentencing statute which provides as
a mitigating circumstance that the defendant has no history of delinquency or criminal
activity, or the person has led a law-abiding life for a substantial period
before commission of the crime. Id. § 35-38-1-7.1(c)(6). In the non-capital
context, a single conviction or juvenile adjudication may negate this mitigating circumstance.
See, e.g., Bufkin v. State, 700 N.E.2d 1147, 1153 (Ind. 1998). In
the capital context, however, the language of the statute suggests that something more
is required to constitute a significant criminal history.
As we recently observed in reviewing a sentence in a non-capital
case, [s]ignificance varies based on the gravity, nature and number of prior offenses
as they relate to the current offense. Wooley v. State, 716 N.E.2d
919, 929 n.4 (Ind. 1999). Here, Warlick was convicted of murdering the
same woman against whom he had committed other domestic offenses.
Warlick points to Article I, § 16 of the Indiana Constitution.
However, the prohibition against cruel and unusual punishment is aimed at the
kind and form of punishment, rather than the duration and amount. Ratliff
v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998) (quoting Wise v. State, 272
Ind. 498, 502, 400 N.E.2d 114, 117 (1980)). See also Lawrence v.
State, 268 Ind. 330, 339-40, 375 N.E.2d 208, 213-14 (1978) (sentence of life
imprisonment does not violate Article I, § 16).