Robert W. Rock
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Priscilla J. Fossum
Attorney General of Indiana
Deputy Attorney General
Robert W. Rock
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Priscilla J. Fossum
direct appeal, we affirmed the murder conviction but remanded for a new sentencing hearing
because (1) it was unclear whether the trial court relied on a forty or fifty year presumptive
sentence and (2) the trial court's sentencing statement did not properly substantiate
aggravating circumstances and did not elaborate some potentially mitigating circumstances.
Carter v. State, 686 N.E.2d 1254, 1262-64 (Ind. 1997). A second sentencing hearing was
held on January 7, 1998, and the trial court again imposed the maximum sentence of sixty
years. This appeal followed, in which Carter essentially argues that the trial court, although
applying the correct presumptive sentence, repeated the other sentencing errors. Carter also
suggests that his sentence is manifestly unreasonable. We conclude that, although the trial
court did not err in its finding of aggravating and mitigating circumstances, the maximum
sentence of sixty years is manifestly unreasonable for this fourteen year old offender.
Accordingly, we reduce the sentence to fifty years imprisonment.
At the first sentencing hearing, the trial court specifically asked defense counsel in his final summation to please point out to me . . . what you believe to be mitigating circumstances as would be reflected by the record. Trial counsel discussed several potentially mitigating circumstances at that hearing and mentioned some of these again at the second sentencing hearing. Of those discussed, the trial court found only Carter's young age and that he had no significant criminal record to be mitigating. In this appeal, Carter asserts that the trial court should have found several other factors to be mitigating.See footnote 2
First, Carter suggests that his below average I.Q. of eighty-nine and an alleged behavior disorder are mitigating circumstances. Although both of these factors were mentioned in a psychiatric report attached to the presentence report, neither was argued as a mitigating circumstance during summation. Trial counsel did not view either factor as significant enough to warrant any mention at either sentencing hearing. Moreover, a substantial percentage of the population has an I.Q. in the range of Carter's but continues to
function in compliance with our laws, and the evidence of Carter's alleged behavior disorder
is not clearly supported by the record.See footnote
The trial court did not abuse its discretion by failing
to find either of these to be mitigating circumstances.
Carter also contends that he was known as a good child. He had never been in trouble before, and he was respectful to adults. He cites to the testimony of his aunt and father, both of whom indicated that Carter had never mistreated other children and had always been respectful to adults. His aunt, however, testified that she had not had regular contact with Carter and his father testified that he had been incarcerated for dealing cocaine since Carter was eight years old. Moreover, as discussed in part B, infra, this testimony is contradicted by an allegation that Carter attempted to molest his three-year-old sister three weeks before the murder at issue in this case. In light of all of these considerations, we cannot say that this offered mitigating circumstance was clearly supported by the record, see Wilkins, 500 N.E.2d at 749, or that the trial court abused its discretion by failing to find it to be mitigating.
What remains of Carter's argument is that (1) his academic achievement while in
custody awaiting trial and (2) the verbal and physical abuse he suffered as a child should
have been considered as mitigating circumstances. As a preliminary matter, we note that
neither of these is a statutory mitigating circumstance. See Ind. Code § 35-38-1-7.1(c)
(1998). Nevertheless, as to the first of these, Carter offered the testimony of Michael Welch,
a school teacher at the Madison County Detention Center. Welch testified at the first
sentencing hearing that Carter is a B . . . B+ student. He's doing quite well academically.
Carter cites to no authority that holds that academic achievement while incarcerated and
awaiting trial is a significant mitigating circumstance that must be identified or credited by
the trial court at sentencing. Although Carter's academic achievement in the face of a
pending murder charge is laudable, the trial court did not abuse its discretion by failing to
find it as a mitigating circumstance.
As to the other proffered mitigator, Carter merely mentions his abusive childhood in passing without any further explanation and only a single record citation to a psychological evaluation that was attached to the presentence report. The presentence report noted that Carter described his step-father as both verbally and physically abusive. It also quoted Carter as saying that his mother threw things, swung baseball bats, everything. You name it, she probably did it. A psychiatric evaluation prepared before trial and attached to the presentence report also notes that Carter gave some history of what could be emotional and physical abuse from [his] mother. He talk[ed] about his mother paddling him, hitting him with a coat hanger, etc. The psychological evaluation mentioned above noted that Carter complains that his mother has often been physically aggressive to him . . . . He says
that when his mother was angry that she would often hit him with her open hand or her fist,
or with coat hangers, shoes, belts and other household objects. The record thus contains
uncontradicted assertions of an abusive childhood based solely on Carter's own statements.
Nevertheless, the trial court was not required to find Carter's abusive childhood as a
mitigating circumstance. See Page v. State, 615 N.E.2d 894, 896 (Ind. 1993) (Evidence of
a troubled childhood does not require the trial court to find it to be a mitigating
circumstance.); see also Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998) (citing Page and
finding no error in trial court's failure to find defendant's troubled youth as a mitigating
circumstance, noting that the only evidence of his childhood was contained in the
presentence report and the defendant ma[d]e no argument about the effects or facts of his
B. The Aggravating Circumstances
Carter also contends that the trial court abused its discretion in finding aggravating circumstances. His brief categorizes the trial court's finding of aggravating circumstances as follows: (1) that the Defendant committed other offenses in the course of committing this offense (a reference to the charges, which were not waived to adult court, alleging Kidnaping and Confinement and Child Molestation); (2) allegations that the Defendant had molested his sister; and (3) the facts and circumstances of the murder. The sentencing statute requires trial courts to consider the nature and circumstances of the crime committed, see Ind. Code § 35-38-1-7.1(a) (1998), and the third factor was properly considered as such and is not challenged on appeal. Instead, Carter challenges only the first two of these.
out any factual inaccuracies in the presentence report. Brown, 698 N.E.2d at 782 (citing Ind.
Code § 35-38-1-12(b) (1998)); see also Gardner v. State, 270 Ind. 627, 634, 388 N.E.2d 513,
517-18 (1979) (the assertions in the [presentence] report will be accepted as true unless
challenged by the defendant) (construing predecessor statute). Moreover, the trial court
observed that evidence related to Carter's attempted sexual assault of his sister was in the
first trial but the Prosecutor elected not to put it in . . . because of [Indiana Evidence Rule]
404(B)[.] The evidence rules, other than those with respect to privilege, do not apply to
sentencing hearings. See Ind. Evidence Rule 101(c). Uncharged crimes may properly be
considered at a sentencing hearing. See Kent v. State, 675 N.E.2d 332, 340-41 (Ind. 1996)
(letters from women who knew defendant and reported that he had been physically abusive
to them in the past could be considered at sentencing hearing on the issue of defendant's past
and his character). Under these circumstances, the trial court did not abuse its discretion in
considering Carter's attempted molestation of his sister as an aggravating circumstance.
C. The Weighing of Aggravators and Mitigators
As a final requirement of the sentencing statement, the trial court must evaluate and balance the mitigating circumstances to determine whether they offset the aggravating circumstances. Hammons, 493 N.E.2d at 1254. When the trial court properly identifies and articulates all significant aggravating and mitigating circumstances, this requires that the trial court merely indicate that the aggravating circumstances outweigh the mitigating circumstances. The trial court did this.
In sum, the sentencing statement is not defective.
N.E.2d 140, 148 (Ind. 1986). Unlike the briefs after remand, the briefs in Carter's first
appeal attempt to analogize or distinguish Carter's case from other sentencing challenges,
but Carter invoked cases from other jurisdictions that are not particularly helpful under the
manifestly unreasonable standard of Indiana's Appellate Rule 17(B). However, the State
argued that [t]he nature and circumstances of Carter's crime are very similar to those of the
defendant's in Poling v. State, 515 N.E.2d 1074 (Ind. 1987). In Poling, the trial court found
several aggravating circumstances including the risk that Poling would commit another
crime, Poling's flight following his crime, his conduct prior to arrest, demonstrating a course
of conduct indicative of continuing criminal intent, and the heinousness of this crime. Id.
at 1081. In addition, the trial remarked on the brutal facts of the crime. The court found as
mitigating circumstances the age of the defendant (seventeen) and his lack of a prior criminal
record. Id. at 1076, 1081. On these facts, we held that the imposition of the maximum
sentence of sixty years for murder was not manifestly unreasonable.
More recent cases have also presented us with similar facts of a youthful defendant who lacked a prior criminal record. As in Poling, we found the maximum sentence not to be manifestly unreasonable in Loveless v. State, 642 N.E.2d 974 (Ind. 1994). In that case, the trial court found the defendant's age (sixteen) and lack of delinquent or criminal record as mitigating circumstances. Id. at 976.See footnote 6 However, the trial court also properly found two
non-statutory aggravating circumstances: (1) the victim of the murder was only twelve years
old and (2) the 'gruesome nature' of the crime, 'involv[ing] planning and result[ing] in the
confinement of the victim for a period of over eight (8) hours and suffering by the decedent
for the last four (4) to five (5) hours of her life' and 'badly mutilat[ing]' the victim's body.
Id. at 977. On these facts, we affirmed the sixty year maximum sentence. Cf. Tingle v.
State, 632 N.E.2d 345, 351 (Ind. 1994) (maximum sentence imposed on seventeen-year-old
defendant upheld; mitigating weight of defendant's youth greatly exceeded by aggravators
including age of victim (seventy-eight), defendant's prior juvenile history and parole status,
and the brutality of the crime).
Under somewhat different circumstances, we have reduced sentences involving youthful offenders. In Walton v. State, 650 N.E.2d 1134 (Ind. 1995), we reduced a 120 year sentence imposed on a sixteen year old defendant who killed both of his adoptive parents to eighty years. We noted that the trial court had improperly found as the sole aggravating circumstance that imposition of a reduced sentence would depreciate the seriousness of the crime. Id. at 1136 (quoting Ind. Code § 35-38-1-7.1(b)(4)). Moreover,
[s]ince an additional aggravator is not present, the 120 year sentence may have been appropriate in light of the character of the offense, but it was manifestly unreasonable for this offender, who was sixteen years old, mentally ill, and lacking a history of criminal or delinquent acts. There are, however, non-statutory aggravating circumstances, for instance, multiple killings, on the face of the record which clearly support separately served consecutive sentences for each homicide.
Id. at 1137.
Later that same year, we considered the propriety of imposing a seventy year sentence
on a seventeen-year-old defendant for felony murder (sixty years) and conspiracy to commit
robbery (ten years). See Widener v. State, 659 N.E.2d 529 (Ind. 1995). Although the trial
court in that case considered the youthful age of the defendant as a mitigating circumstance,
it did not describe other mitigating circumstances that we found to be significant, namely the
defendant's lack of criminal history, his guilty plea and acceptance of responsibility, and the
fact that his co-defendants initiated and primarily formulated the plan to rob. Id. at 534. On
these facts, we reduced the defendant's sentence to fifty years for murder to be served
concurrently with the sentence for conspiracy to commit robbery. Id.
Although the nature of Carter's offense is not as severe as that in Loveless, the other aggravating and mitigating circumstances are virtually identical. Poling also presents the same mitigating circumstances and similar aggravating ones. On the other hand, Carter's case is similar to Walton and Widener, with the exception that Carter was not mentally ill (as in Walton) nor did he accept responsibility by pleading guilty or have codefendants who initiated and primarily formulated the crime (as in Widener).
Appellate Rule 17(B) requires our consideration of both the character of the offender and the nature of the offense. As to the character of the offender, Carter is fundamentally different from all of the defendants in the previously mentioned cases in one very significant respect: he was fourteen at the time of the offense, not sixteen or seventeen. Our decisional law has recognized that a defendant's youth, although not identified as a statutory mitigating circumstances, is a significant mitigating circumstance in some circumstances. See, e.g., Walton, 650 N.E.2d at 1137. This is a more powerful factor for
a fourteen-year-old defendant than it is for one who is sixteen or seventeen. The legislature
has made at least two significant distinctions between the treatment accorded to offenders
who are sixteen or older and those under sixteen. First, a child who is at least sixteen at the
time of committing murder may be sentenced to death or life imprisonment without parole,
but those penalties are not available for a child under the age of sixteen. Ind. Code § 35-50-
2-3(b) (1998). Second, although a child who is at least ten years of age when committing
an act that would be murder may be waived to adult court, see id. § 31-30-3-4, other serious
charges may be waived only if the child is at least sixteen at the time of the alleged offense.
See id. § 31-30-3-5; but see id. § 31-30-3-2(1) (permitting the waiver of fourteen year olds
when certain conditions are met). The legislature has also determined that juvenile courts
do not have jurisdiction when an individual is at least sixteen years of age and is alleged to
have committed murder, kidnaping, rape, carjacking or a number of other serious offenses.
See id. § 31-30-1-4. In short, these statutes evince strong legislative sentiment that a sixteen
year old should be treated differently from a younger child in at least some respects.
Nevertheless, for our purposes today, the same term of years is available to a fourteen year
old as is available to a seventeen year old or a thirty-five year old convicted of murder.
Individuals of any age convicted of murder face the same presumptive, minimum, and
The trial court also found another mitigating circumstance and an aggravating circumstance that go to the character of the offender. Carter's lack of a criminal history was found to be mitigating, but his attempted molestation of his sister was found to be
aggravating. As to the nature of the offense, as the trial court found and as is true of most
murder cases, the facts of this case are severe and troubling. Moreover, this was the murder
of a child under the age of twelve, which is a statutory aggravating circumstance. See id. §
The crime(s) of a fourteen year old defendant may, under other circumstances, warrant the imposition of the maximum sentence. In light of the nature of this offense and character of this offender, however, Carter's very youthful age is sufficiently mitigating that the maximum sentence is manifestly unreasonable. However, we are also impressed by the age of the victim and the circumstances of the crime elaborated by the trial court. The trial court was within its discretion in finding that these two mitigating circumstances were outweighed by the significant aggravating circumstances. Reduction to something between the presumptive and the maximum imposed by the trial court is necessarily somewhat arbitrary. Nevertheless, our constitutional power to review and revise sentences allows this Court to reduce a sentence to any term of years within the statutorily authorized range, and requires us to consider claims of excessive sentences. In this case, a balancing of these significant and troubling factors leads the majority of this Court to conclude by consensus that Carter's sentence should be reduced to fifty years imprisonment.
SHEPARD, C.J., and SULLIVAN and SELBY, JJ., concur.
DICKSON, J., concurs and dissents with separate opinion.
We have emphasized that this review is very deferential to the trial court: '[T]he issue is
not whether in our judgment the sentence is unreasonable, but whether it is clearly,
plainly, and obviously so.' Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting
Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997), cert. denied, ___ U.S. ___, 119 S.Ct.
104, 142 L.Ed.2d 83 (1998)). See also Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999);
Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998); Weeks v. State, 697 N.E.2d 28, 30
Because I do not find the sentence ordered by the trial judge to be clearly, plainly, and obviously unreasonable, I cannot agree to revise it and would affirm the sentence imposed by the trial court.
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