Attorney for Appellant                    Attorneys for Appellee    
C. Robert Rittman                        Steve Carter
Marion, Indiana                             Attorney General of Indiana    
                    
                        Nicole M. Schuster                                    Deputy Attorney General
                        Office of Attorney General
Indianapolis, Indiana

     A jury found appellant Frederick A. Laux guilty of murder, felony murder and burglary resulting in bodily injury. The court sentenced him to life without parole, plus twenty additional years for the burglary count. On appeal, Laux makes one claim warranting relief: that a no-contact order was improperly incorporated into his sentence. We otherwise affirm.

    The next day, Heidi and Laux agreed to attend a dance sponsored by Heidi’s employer. Laux had the daughters for weekend visitation and brought them with him to the dance. During the dance, Laux became increasingly suspicious that Heidi was involved with a co-worker. Laux left the dance around 8:00, went home, and played cards with his daughters before going to bed. Around 3 a.m. the following morning, Laux awoke and decided to “fix” Heidi. He dressed in two pairs of sweatpants, a sweatshirt, gloves, a hat, and a ski mask. He collected a flashlight and a crowbar and ran to Heidi’s house.

    Upon arrival, Laux used the crowbar to pry open a coal chute and gain entrance to Heidi’s house. He entered the basement through the chute and made his way upstairs. Laux proceeded to Heidi’s bedroom, struck her three times with the crowbar, strangled her, and left. She died from her injuries within twenty minutes.

    The State charged Laux with murder, See footnote felony murder,See footnote and burglary resulting in bodily injury.See footnote It later requested a sentence of life in prison without parole. After a three-day trial, the jury found Laux guilty on all counts and recommended life in prison without parole. The trial court merged Laux’s murder and felony murder convictions and sentenced him to life in prison without parole for the murder and a consecutive term of twenty years for the burglary. It also ordered that Laux was to have no contact with Heidi’s family.

    Indiana’s statutory sentencing scheme specifies the penalties for various classes of offenses and grants trial judges some discretion. “While the judge is vested with broad discretion in sentencing, he must act within statutorily prescribed limits.” Douglas v. State, 464 N.E.2d 318, 320 (Ind. 1984).

    The trial court sentenced Laux in accordance with the statutes governing the crimes he committed. The general penalty for murder is “a fixed term at fifty-five (55) years, with not more than ten (10) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; in addition, the person may be fined not more than ten thousand dollars ($10,000).” Ind. Code Ann. § 35-50-2-3(a) (West 1998). Indiana’s death penalty statute, Indiana Code § 35-50-2-9, authorizes either a sentence of death or life in prison without parole upon satisfying the requirements of the statute. Similarly, the code declares that the penalty for burglary as: “a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000).” Ind. Code. Ann § 35-50-2-5 (West 1998). By their own terms, these statutes do not authorize imposition of a no-contact order as part of an executed sentence. Had the court suspended part of the sentence for either crime, of course, it could certainly have conditioned that suspension on no contact.

    To be sure, the trial court was hardly without the power to grant protection for Heidi’s family and the children. Indiana’s statutes provide a mechanism by which a victim may obtain a no-contact order. The legislature has created a variety of protective arrangements, recently revised to meet the various circumstances where a court order may be useful. See Ind. Code Ann. § 5-2-9-5 (West 1998) (listing various forms of protection, along with statutory cites.)

    The Double Jeopardy Clause states that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This clause “yields three protections: (1) protection from reprosecution for the same offense after an acquittal; (2) protection from reprosecution for the same offense after conviction; and (3) protection from multiple punishments for the same offense.” Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (overruled on other grounds)).

    Laux makes what we understand to be two separate arguments under the rubric of double jeopardy.

First, Laux argues that his conviction for both felony murder and the underlying felony violates double jeopardy because it effectively punishes him twice for the same conduct. (Appellant’s Br. at 28-30). Quoting from Kennedy, Laux argues that “a conviction and sentence for both felony murder and the accompanying felony violates double jeopardy because the conviction for murder while in the commission of a felony could not occur without proof of the accompanying felony.” Id. at 967.

Had Laux in fact been convicted and sentenced for felony murder, he would be entitled to relief. This is not what occurred. The trial court merged the felony murder conviction and the intentional murder conviction and entered judgment only for the latter. Under these circumstances, there is no double jeopardy violation. Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (stating that “a jury verdict on which the court did not enter judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic.”); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (citing to six other cases reaching the same conclusion); Moore v. State, 652 N.E.2d 53, 59-60 (Ind. 1995). See footnote

Second, Laux argues that his sentence violates double jeopardy because the burglary was considered as an aggravating circumstance in the sentencing under Ind. Code § 35-50-2-9 (West 1998). (Appellant’s App. 28-30). We disagree.

In Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), we observed that the “facts necessary to establish the (b)(1) aggravating circumstance serve to narrow the eligibility for the penalty and are not identical to the elements of the crime.” Id. at 1165 (citing West v. State, 755 N.E.2d 173, 186 (Ind. 2001)). Because the felonies listed in Ind. Code § 35-50-9-2(b)(1) are not elements of the crime, but rather a list of permissible aggravators, they essentially serve a function analogous to sentencing enhancements. The statute thus indicates only what felonies are permissible to consider in imposing life without parole.

We have already implicitly accepted that sentencing aggravators do not constitute double jeopardy violations. In Bivins v. State, 642 N.E.2d 928 (Ind. 1994), we let stand both a death sentence, and a conviction and sentence for robbery that was used as an aggravator in sentencing Bivins under the death penalty statute. Id. at 949. In Bivins, the only double jeopardy violation we found to exist was the sentence and conviction for theft that was, itself, a lesser charge contained in the robbery conviction. Id.

The Supreme Court has repeatedly held that courts may consider past and concurrent criminal conduct in enhancing sentences. In Witte v. United States, 515 U.S. 389 (1995), the Court reiterated that the “use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.” Id. at 399. In so doing, the Court upheld the “taking [of] the circumstances surrounding a particular course of criminal activity into account in sentencing for a conviction arising therefrom.” Id. at 400. Similarly, the Court has upheld the consideration in sentencing of conduct underlying criminal charges of which the defendant was acquitted. See, e.g., United States v. Watts, 519 U.S. 148, 152-54 (1997) (per curiam). See footnote In the context of double jeopardy, then, Ind. Code § 35-50-9-2(b)(1) does nothing more than restrict the scope of the trial court’s discretion in considering the circumstances surrounding a crime to the examination of those specifically listed in the statute.

We acknowledge that Woods v. State, 547 N.E.2d 772 (Ind. 1989) concluded that a sentence for robbery violated double jeopardy when it was used as an aggravator to sentence the defendant to death. Id. at 795. However, Woods reached this conclusion based on the premise that the “commission of a robbery is an essential element of the aggravating circumstance of committing an intentional killing in the course of committing a robbery.” Id. We have since rejected this view of the aggravating factors listed in Ind. Code § 35-50-2-9, see, Overstreet, 783 N.E.2d at 1164-65, and therefore believe that insofar as it relates to double jeopardy, Woods was flawed.

Because “taking into account conduct related to the offense of conviction in sentencing is not the same thing as holding the defendant criminally culpable for that conduct,” United States v. Dawn, 129 F.3d 878, 884 (7th Cir. 1997), and because the (b)(1) aggravators are not elements of a crime, we conclude that the use of the class B burglary conviction as an aggravating factor in sentencing Laux to life without parole, as well as the sentencing of Laux to life without parole and twenty years for the burglary, did not violate the principles of double jeopardy. See footnote

In his supplemental brief, Laux requests that we revise his sentence of life in prison. (Appellant’s Supp. Br. at 8-9). In 2002, the General Assembly altered in important ways the relative roles of judge and jury under Indiana Code § 35-50-2-9, effective for sentencings conducted after June 30, 2002. We have not yet resolved the effect of these amendments on the sentencing role of the trial judge, the present requirements for sentencing orders, or the standard of appellate review. The parties have not argued any issues arising from the 2002 amendments. We thus reserve judgment on such questions and pursuant to paragraph number 3 of our remand order, we review Laux’s claim on the merits.

Indiana Code § 35-50-9-2(l) provides that before life imprisonment without parole may be imposed as a sentence the jury must find that: “(1) the state has proved beyond a reasonable doubt that one (1) of the aggravating circumstances listed in subsection (b) exists: and (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.”

On remand, the trial court’s sentencing order clearly identifies that one of the aggravating factors listed in subsection (b) was proven beyond a reasonable doubt. Specifically, the trial court found that the state had proven the aggravating factor provided in Ind. Code § 35-50-9-2(b)(1)(B): that the “defendant committed the murder by intentionally killing the victim while committing or attempting to commit . . . . Burglary.” (Appellant’s Supp. App. at 7)(the court specifically found “[t]hat the state proved beyond a reasonable doubt that the Defendant committed the murder while committing burglary.”). See footnote The trial court further stated that the State had proven that the killing was intentional. (Appellant’s Supp. App. at 8-9). This is sufficient to satisfy the general requirement that the state prove beyond a reasonable doubt the existence of at least one aggravating factor.See footnote

    As for the court’s finding that the aggravating factor outweighs any mitigating factors, Laux contends that the single aggravator charged was insufficient to support his sentence given the finding of a mitigating factor.See footnote (Appellant’s Supp Br. at 5-8). Specifically, Laux argues that his lack of significant prior criminal history outweighs the sole aggravator. Id. We do not agree.

    Although the trial court did find as a mitigating factor that Laux lacked a significant prior criminal history (Apppellant’s Supp. App. at 9), the court was under no obligation to assign that factor any particular weight. As we have previously held, it is “the decision of the trial court to decide what weight mitigating factors are to be given.” Kingery v. State, 659 N.E.2d 490, 498 (Ind. 1995). See also Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998). In this case, the trial court considered Laux’s lack of prior criminal history, but in balancing the aggravating factor with this mitigating factor concluded that “the breaking and entering of the victim’s home at approximately 3:00 a.m. with the intent to commit battery with a deadly weapon, is so onerous that it completely outweighs the mitigating circumstance.” (Appellant’s Supp. App. at 9). In short, as Justice Boehm once wrote, the trial court did what “it was entitled to do,” it “considered [Laux’s] lack of prior criminal history but declined to accord it significant weight.” Bunch, 697 N.E.2d at 1258.

The record supports the trial court’s conclusion that the aggravator outweighed any mitigating circumstances. Laux woke up in the middle of the night believing that he had to “fix” – murder – his ex-wife. In order to accomplish that goal, he dressed himself in dark clothes and a put on a dark face mask. He then ran to his ex-wife’s home and broke into her home through the basement in the dead of night. Laux entered her bedroom where she was sleeping and struck her three times in the head with a crowbar before he finally strangled her. Laux then returned home and took steps to conceal his crime, both from his daughters, whom he had left alone in order to commit the murder, and the police.

Given the brutality of the crime, a brutality which Laux’s counsel appropriately acknowledges, (Appellant’s Supp. Br. at 8), we are not persuaded that the trial court and the jury were wrong in concluding that the high culpability embodied in the single aggravator outweighed Laux’s lack of prior criminal history.

    Laux also requests that we reduce his sentence in order to “bring it into line with the interests of justice.” (Appellant’s Supp. Br. at 9). Indiana Appellate Rule 7(B) permits this Court to “revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”
    
In making this request, Laux points out that he has “no prior record of any criminal offenses or history of violent acts,” that he has been “consistently employed since of the age of 15,” that he performed well in school and received a degree from Purdue University, and that this “crime is an aberration on an otherwise responsible, caring, peaceful, hardworking, and honest life.” (Appellant’s Supp. Br. at 9). Laux requests that we give consideration to his expression of remorse at the sentencing hearing. Id.
    
Although we agree that Laux’s lack of criminal history, work ethic, educational achievement, and remorse have value; we cannot ignore the brutality of the crime that he committed. In light of all of the circumstances surrounding Laux’s crime, we are not persuaded that the sentence is inappropriate.

Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., dissents from Part I of the majority opinion
for the reasons expressed in Ritchie v. State, 890 N.E.2d
258, 271-74 (Ind. 2004) (Rucker, J., dissenting in part).
In all other respects I fully concur.
Sullivan, Justice, dissenting.

I respectfully dissent in two respects from the Court’s opinion.

I turn first to “consideration of the trial court’s decision.”

When imposing a sentence of life without parole, the same heightened standards used in death penalty cases apply. 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.”), after remand, 722 N.E.2d 339 (Ind. 2000); see also Ind.Code § 35-50-2-9 (2004). Because a sentence of life in prison without parole is imposed under the same standards as the death penalty, we require the same specificity from a trial court sentencing a defendant to life in prison without parole as we would a court sentencing a person to death. Ajabu, 693 N.E.2d at 936. Neither Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000) nor recent statutory changes 1 lessen these r equirements. Brown v. State, 783 N.E.2d 1121, 1127 (Ind. 2003).

As the Court points out, after briefing on this case was completed, we remanded this case to the trial court for a new sentencing order because the one originally entered by the trial court did not comply with these requirements. As the Court also points out, the trial court’s revised sentencing order is sufficient to satisfy the general requirement that the trial court find that the state prove beyond a reasonable doubt the existence of at least one aggravating circumstance. It is certainly the case that a proper statutory aggravating circumstance was charged and submitted to the jury (“the defendant committed murder by intentionally killing the victim while committing burglary”). The jury found that the State had met its burden of proof beyond a reasonable doubt. I conclude that the State has proven beyond a reasonable doubt that at least one of the aggravating circumstances listed in the statute exists. See Ind. Code § 35-50-2-9(k)(1) (1998). As such, I believe the sentence imposed is authorized by law. Furthermore, given the nature of Laux’s attack on Heidi, I would assign this aggravating circumstance weight in the highest range.

However, in my view, the mitigating circumstances present in this case are such as to warrant a sentence less than life without parole. The trial court itself found that Laux had “no significant history of prior criminal conduct.” Indeed, there is absolutely nothing of record to suggest that Laux ever had any difficulty with the law whatsoever—either as a juvenile or an adult. In my view, absence of criminal history is the weightiest of all mitigating circumstances. One who has conformed his or her conduct to the dictates of our society is entitled to consideration upon committing a first offense. Laux maintained a blemish-free legal history throughout his childhood and adulthood. The record indicates that following graduation from high school and Purdue University, Laux was hard-working, honest, and responsible. Under these circumstances, I would assign weight to the absence of any prior criminal history in the highest range.

Laux clearly was unable to deal with the separation from Heidi and must face severe consequences as a result of his terrible, violent behavior. It appears that he recognizes that fact and has expressed sincere remorse. The aggravating circumstance here is weighty indeed but in my view does not outweigh the mitigating circumstance. In light of the nature of the offense and character of the offender, I would revise the sentence imposed to 65 years in prison.