ATTORNEY FOR APPELLANT
Edward C. Hilgendorf
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Barbara Gasper Hines
Deputy Attorney General
SUPREME COURT OF INDIANA
ANDREW CHERRONE, JR., )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 71S00-9904-CR-265
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D04-9806-CF-00238
ON DIRECT APPEAL
March 31, 2000
Andrew Cherrone, Jr. was convicted of the murder and attempted robbery of Howard
Shultz. He was sentenced to consecutive terms of sixty-five years imprisonment for
murder and fifty years for attempted robbery. In this direct appeal he
contends: (1) the trial court should have suppressed his confession to police because
he was denied the right to consult with his father during the interrogation;
(2) there is insufficient evidence to support his conviction for attempted robbery; and
(3) his 115-year sentence is manifestly unreasonable. We affirm the convictions but
remand to the trial court with instructions to impose concurrent sentences.
Factual and Procedural Background
On the evening of May 24, 1998, Cherrone, sixteen, was drinking alcohol
with his friends Roy McCarthy, fourteen, and Justin Maike, fifteen. His thirteen-year-old
girlfriend Margaret Deskovich was also present but not drinking. Late that evening
the group went to a convenience store to get something to eat, but
had no money. Cherrone told Maike, [W]e should go rob Mr. Shultz,
a ninety-year-old man who lived nearby. Cherrone then said he was not
serious, but he and Maike walked to Shultzs house. Deskovich and McCarthy
remained at the convenience store.
Cherrone and Maike found lights on at Shultzs house and knocked on the
door. When Shultz answered the knock, Cherrone asked if he could use
the telephone. Shultz retrieved a cordless phone and handed it to Cherrone,
who pretended to call someone. Because Maikes face was covered by his
shirt, Shultz asked if Maike was a boy or a girl. Maike
then showed his face to Shultz. After a few seconds of silence,
Cherrone jumped in the door at Shultz and began beating him with the
cordless phone. Maike screamed at Cherrone to stop and then ran back
to the convenience store. Cherrone ultimately stabbed Shultz in the neck with
a pen. Shultz died as the result of cranial blunt trauma .
. . to the head and brain cavity as well as a stab
wound to the neck.
Cherrone then went with the others to Deskovichs house where he told Maike
and McCarthy to burn his clothes. En route he discarded Shultzs cordless
phone. Cherrone told Maike and McCarthy not to tell anyone about the
crime because if he went to prison, his family would get [them].
While Maike and McCarthy were burning the clothes, Cherrone told Deskovich that he
had beaten Shultz over the head with the phone and stabbed him in
the neck with a pen. Nearly three weeks later, Cherrone confessed to
Cherrone was charged with murder, attempted robbery as a Class A felony, and
felony murder. A jury found him guilty of all three counts, and
the trial court entered judgment of conviction only for murder and attempted robbery.
Cherrone was sentenced to maximum consecutive terms totaling 115 years imprisonment.
I. Admissibility of Juvenile Confession
Cherrone first contends that the trial court erred in admitting his videotaped confession.
Cherrone filed a motion to suppress the confession, which the trial court
denied after a hearing. Indiana Code § 31-32-5-1 sets forth specific requirements
necessary for a valid waiver of state or federal constitutional rights in cases
involving a juvenile. The statute provides in relevant part that these rights
may be waived only:
(2) by the childs custodial parent . . . if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver.
Ind. Code § 31-32-5-1 (1998). We review a trial courts ruling as
to the voluntariness of a waiver by looking to the totality of the
circumstances, considering only the evidence favorable to the State and any uncontested evidence.
Carter v. State, 686 N.E.2d 1254, 1257 (Ind. 1997). Indiana Code
§ 31-32-5-4 provides that a review of the totality of the circumstances in
juvenile cases is to include consideration of the childs physical, mental, and emotional
maturity; whether the child or parent understood the consequences of the childs statements;
whether the child and parent had been informed of the delinquent act; the
length of time the child was held in custody before consulting with his
parent; whether there was any coercion, force, or inducement; and whether the child
and parent were advised of the childs right to remain silent and to
the appointment of counsel.
A detective met Cherrone at the Juvenile Probation Office and Cherrone remained with
the detective voluntarily for approximately an hour, during which the police unsuccessfully attempted
to locate his mother and then telephoned his father and waited for his
father to arrive at the police station. After Cherrones father arrived at
the police station, Cherrone conversed with him for about fifteen minutes before the
interview with police began. Before initiating questioning, police advised both Cherrone and
his father that they wanted to discuss Cherrones knowledge of Shultzs murder.
Police also read aloud and Cherrone and his father signed a waiver of
rights form that explained the right to remain silent, the right to talk
to a lawyer before and during questioning, the right to the appointment of
an attorney at no expense, and the right to stop questioning at any
time. The waiver also advised Cherrone that anything he told the police
could be used against him in court. After the waiver was signed,
the detective asked and received permission to speak to Cherrone outside his fathers
presence. After approximately thirty minutes of questioning, Cherrone confessed to the murder.
Cherrone relies primarily on the statutory requirement that a juveniles rights may be
waived by his or her parents only after meaningful consultation between the parent
and juvenile. Ind. Code § 31-32-5-1(2)(C). Specifically, he points to the
following exchange between Officer Reihl and Cherrones father after the waiver of rights
form was explained and signed.
Would you mind if I talked to him privately now or .
Cherrone, Sr.: Sure.
Reihl: Would that be okay?
Cherrone, Sr.: Yeah.
Cherrones father then left the room, and Officer Reihl proceeded to question Cherrone
while his father waited outside. Cherrone contends by denying him the opportunity
to meaningfully consult with his father post-advisement and post-waiver his rights were violated
and the confession was rendered inadmissible. Cherrone cites
Foster v. State, 633
N.E.2d 337 (Ind. Ct. App. 1994), in support of this contention. As
the Court of Appeals observed in Foster:
The meaningful consultation requirement of the statute is a matter peculiar to juvenile
waivers; it is a safeguard
additional to those requirements common to adult waiversthat
they be knowingly, voluntarily, and intelligently made. The meaningful consultation requirement may
be satisfied by actual consultation of a meaningful nature or by the express
opportunity for such consultation, which is then forsaken in the presence of the
proper authority by the juvenile, so long as the juvenile knowingly and voluntarily
waives his constitutional rights. The State bears the heavy burden of proving
that the meaningful consultation requirement has been met.
Id. at 347 (quoting Williams v. State, 433 N.E.2d 769, 772 (Ind. 1982))
(internal citations omitted) (emphasis in Williams). In Foster, the detective orally advised
the juvenile and his parents of his rights and then informed the parents
that they were entitled to a conference. See 633 N.E.2d at 348.
After a forty-five minute conference, the detective repeated the rights advisement and
secured a written waiver signed by both parents and the juvenile. See
id. Although it appears that Fosters parents remained with him throughout the
subsequent interview, the Court of Appeals opinion in Foster in no way suggests
that their presence was required. Rather, the court observed that the waiver
was executed after a forty-five minute family consultation. Thus, Foster was not
only afforded an opportunity for a meaningful consultation, an actual consultation transpired.
II. Sufficiency of Evidence for Attempted Robbery
Indiana Code § 31-32-5-1 imposes requirements before a juvenile and his or her
parent may affirmatively waive Miranda rights. Specifically, subsection 2(C) requires a meaningful
consultation before any rights may be waived. We do not agree with
Cherrones contention that it requires a consultation after that waiver.
B. Totality of the Circumstances
The totality of the circumstances surrounding Cherrones interview with police also support the
trial courts conclusion that Cherrones waiver was voluntary. Cherrone was sixteen years
old at the time of the confession and he points to nothing to
suggest that his physical, mental, or emotional maturity was any less than the
average sixteen year old. He was voluntarily with police for only an
hour while waiting for his father to arrive. His father was then
present for a fifteen-minute conversation after being advised of the nature of the
investigation and before the rights were explained to and waived by Cherrone and
his father. Finally, the police did not use any coercion, force, or
inducement to secure the waiver from either Cherrone or his father. In
sum, all six statutory factors support the trial courts conclusion that Cherrones waiver
of rights was voluntary. The videotaped confession was therefore properly admitted into
Cherrone argues that there is insufficient evidence to support his conviction for attempted
robbery. Specifically, he contends that there is insufficient evidence to prove that
he had the requisite intent to rob Shultz when he entered Shultzs home.
When reviewing the sufficiency of evidence to establish the elements of a
crimeincluding the intent elementwe consider only the evidence and reasonable inferences drawn therefrom
that support the verdict. Heavrin v. State, 675 N.E.2d 1075, 1079 (Ind.
1996). We do not reweigh evidence or judge the credibility of witnesses
and will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Garrett v. State, 714 N.E.2d 618, 621 (Ind. 1999); Taylor v. State,
681 N.E.2d 1105, 1110 (Ind.1997).
Deskovich testified that on the evening of the murder she, Cherrone, McCarthy, and
Maike went to a convenience store near Shultzs house because they were hungry.
However, they had no money. At the convenience store Maike heard
Cherrone say, [W]e should go rob Mr. Schultz. Maike did not respond,
and the two young men then started walking toward Shultzs house. Maike
testified that, upon their arrival at Shultzs house, Cherrone asked if he could
use the phone. Shultz retrieved a cordless phone, which he handed to
Cherrone who remained at the door. Cherrone pretended to dial the phone
and then, after a brief pause, jumped in the door at Shultz and
started beating him over the head with the phone. This evidence is
sufficient to support a reasonable inference that Cherrone intended to rob Shultz and
took a substantial step toward the commission of that crime.
As a final point, Cherrone contends that the imposition of consecutive maximum sentences
of sixty-five years for murder and fifty years for attempted robbery is manifestly
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 manifestly unreasonable in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 17(B).
The trial courts sentencing statement found aggravating and mitigating circumstances relating both to
the nature of the offense and the character of the offender. The
trial court observed that Cherrone knew that the victim was ninety years-old, frail,
and lived alone. The victim was brutally beaten and then was stabbed
in the neck with a ballpoint pen and left to die. The
trial court found these circumstances of the crime to be a matter of
severe aggravation. As regards the character of the offender, the trial court
observed that Cherrone was on probation for underage consumption of alcohol at the
time of this offense but also found that Cherrone had suffered a difficult
childhood and may have been under the influence of alcohol on the night
of the offense. Although not expressly finding it to be a mitigating
circumstance, the trial court also mentioned Cherrones youthful age of sixteen.
We agree with the trial courts view of the severe and disturbing nature
of the offense. Nonetheless, we view the imposition of maximum and consecutive
sentences for this sixteen-year-old offender who lacked a significant history of criminal activity
as manifestly unreasonable. Accordingly, we remand this case to the trial court
with direction to impose concurrent sentences.
Cf. Brown v. State, 720 N.E.2d
1157, 1159-60 (Ind. 1999) (remanding for imposition of concurrent sentences for a sixteen-year-old
offender); Carter v. State, 711 N.E.2d 835, 843 (Ind. 1999) (finding maximum sentence
for a fourteen-year-old offender manifestly unreasonable).
Cherrones convictions are affirmed. This case is remanded to the trial court
with instructions to impose concurrent sentences.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.
DICKSON, J., concurs as to Parts I and II, dissents as to Part
III, and would affirm the trial court.
Cherrone also makes a somewhat oblique suggestion that he was not
given the opportunity to have a meaningful consultation with his father after they
were advised of his rights but before waiver. Cherrone did not argue
in the trial court that a consultation is "meaningful" only if it follows
the advisement of rights. It is well settled that a party cannot
raise one ground in the trial court and a different ground on appeal.
See Wurster v. State, 715 N.E.2d 341, 347 (Ind. 1999). As
explained above, the consultation between Cherrone and his father occurred upon his father's
arrival at the police station--before the detective explained the rights Cherrone and his
father would be waiving. It appears that the usual, and in
our view the better, practice as described in Foster and more recent cases
that have come before this Court, see, e.g., Trowbridge v. State, 717 N.E.2d
138, 148 (Ind. 1999); Carter v. State, 686 N.E.2d 1254, 1258 (Ind. 1997),
is to provide the consultation after advising the juvenile and his or her
parents of the rights to be waived. In Graham v. State, 464
N.E.2d 1 (Ind. 1984), Justice DeBruler joined by Justice Prentice in dissent expressed
the view that the statute requires that the consultation occur after the advisement
of rights "so that there is assurance that the [parent and juvenile]
know what is at stake in the waiver which police are attempting to
get . . . ." Id. at 11 (DeBruler, J., dissenting).
We need not decide whether Justice DeBruler's view that the statute requires the
consultation occur after the advisement but before the waiver of rights is correct,
because that issue was neither presented to the trial court nor cogently argued
on appeal. Nor, for the same reason, do we address whether the
other evidence in the case would render harmless any error in the admission
of the confession.
Cherrone also points out that the videotape contained a sixteen-minute conversation
between him and his father that occurred after Cherrone was arrested. He
contends that this segment "was inadmissible and improperly published to the jury."
Because Cherrone did not object to this segment at trial, any claim of
error is waived. See Angleton v. State, 686 N.E.2d 803, 814 (Ind.
Cherrone's argument focuses on the alleged improper balancing of the aggravating
and mitigating circumstances. He suggests, but fails to make a cogent argument
to support, error in the trial court's articulation of aggravating and mitigating circumstances
in its sentencing statement. For example, Cherrone makes the following passing reference
to mitigating circumstances: "The record indicates that Cherrone was sorry for his
indiscretion, was responding to probation, and had been the victim of his grandfather
earlier in life." An allegation that the trial court failed to identify
or find a mitigating circumstance requires a defendant to establish that the mitigating
evidence is both significant and clearly supported by the record. Carter v.
State, 711 N.E.2d 835, 838 (Ind. 1999). Cherrone cites only the Presentence
Report in support of these contentions. The Presentence Report does not mention
any remorse for the killing, which is plainly not a mere "indiscretion."
Moreover, the fact that Cherrone committed the instant offenses while on probation contradicts
his assertion that he was responding to probation. Finally, the trial court expressly
found that Cherrone had "had some very hard things in [his] life from
what I read in the pre-sentence report . . . ." This
presumably addressed the abuse by his grandfather.