Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
May 31, 2001
On appeal, we found the sentencing order improper in three respects. First,
we found that the trial court inappropriately applied the first aggravating circumstance.
Id. at 700. Second, we found the third aggravating circumstanceDefendants involvement with
cocaineto be inappropriate in this case. Id. Finally, we found that
the trial court erroneously failed to consider Defendants proffered mitigation evidence. Id.
Because the trial court incorrectly sentenced Defendant, we remanded the case to
the trial court for a new sentencing order. Id.
On remand, the trial court did not alter the original sentence. It
did issue a new se
ntencing order, from which Defendant appeals, arguing that it
suffers from the same defects as the original order.
Indiana law requires that the trial court take the following steps during sentencing:
(1) identify all significant mitigating and aggravating circumstances; (2) specify facts and reasons
which lead the court to find the existence of each such circumstance; and
(3) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced
in determination of the sentence. See Morgan, 675 N.E.2d at 1073; Dumbsky
v. State, 508 N.E.2d 1274, 1278 (Ind. 1987).
The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997). Indiana law, however, mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating circumstances that are clearly supported by the record may imply that the trial court failed to properly consider them. See id.
We also held that the trial court improperly considered Defendants prior cocaine i
See id. At the sentencing hearing, the State presented evidence of
an arrest for cocaine use while Defendant was in the military. See
id. The basis for this aggravating circumstance was a printout from the
National Crime Information Center. See id. at 700 n.7. There was
no evidence of a conviction, and Defendant testified that he was neither charged
nor disciplined because the cocaine was found in a desk that he shared
with another soldier. See id. We explained that the court could
not consider the cocaine arrest as criminal conduct:
To the extent that the trial court viewed the prior involvement with cocaine as evidence of criminal history, it was improperly considered under Indiana Code section 35-38-1-7.1(b)(2) (1993). A single arrest does not establish a history of criminal conduct. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.1991). Nonetheless, a prior arrest may be considered under Indiana Code section 35-38-1-7.1(d) (1993) because such a record reveal[s] to the court that subsequent antisocial behavior on the part of the defendant has not been deterred even after having been subject to the police authority of the State. Tunstill, 568 N.E.2d at 545. Here, the trial court did not demonstrate that it considered prior involvement with cocaine to be evidence that defendant has not been deterred from antisocial behavior. In fact, the trial court did not specify any particular manner in which it considered this evidence beyond a mere recitation of the facts. Therefore, the trial court erroneously cited to defendants prior involvement with cocaine as an aggravating factor in this case.
See id. (quotations in original).
The new sentencing order briefly addressed some of Defendants mitigation claims. It
[The witnesses for Defendant] generally testified that there were no problems with Defendant when he was growing up but that after his father passed and he was divorced from his ex-wife that he no longer was a leader, became a follower and an introvert. The experience that [Defendant] had in those regards are not mitigating factors and do not lessen the severity of this offense.
But the order fails to address his claims of a lack of significant
criminal history and remorse.
The trial court also failed to follow our direction regarding the cocaine arrest.
Instead, the court said, The fact that the defendant apparently began using
cocaine in the military is an extreme aggravating circumstance
because this case
was in fact a conspiracy to
perpetuate the criminal behavior or illegal
drug consumption with the defendant and his co-conspirators.
We explicitly stated in Sherwood that Defendants cocaine arrest could only be considered to the extent that his prior involvement with law enforcement did not deter further criminal activity. 702 N.E.2d at 700. We also clearly explained that a single arrest does not establish a history of criminal conduct. Id. Despite this, the trial court again found Defendants cocaine arrest as criminal conduct and found it particularly aggravating because the crime he was charged with was a continuation of that criminal conduct.
The only mitigating factor that we find to be significant is Defendants lack
of a si
gnificant criminal record prior to this crime. We find that
this is a mitigating circumstance in the medium range. See Baird v.
State, 604 N.E.2d 1170, 1182 (Ind. 1992) (weighing lack of criminal history as
a mitigating circumstance in the medium range), cert denied, 510 U.S. 893 (1993).
We do not find Defendants remorse to be out of the ordinary
and therefore do not give it any mitigating weight. See Evans v.
State, 727 N.E.2d 1072, 1083 (Ind. 2000) (It is within the sentencing courts
discretion to determine whether remorse should be considered as a significant mitigating factor.)
As noted in our earlier opinion, we agree with the trial courts
finding that the heinousness of the crime constitutes a valid aggravating circumstance.
Weighing the aggravating and mitigating circumstance, we find them in approximate balance and
conclude that concurrent presumptive sentences are therefore appropriate.
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9408-CF-195
May 31, 2001
Footnote: Ind. Code § 35-42-1-1 (1993).
Footnote: Id. §§ 35-41-5-2 and 35-42-5-1.
The presumptive sentence for murder at the time of the crimes was 40 years. Up to 20 years could be added for aggravating circumstances. See Ind. Code § 35-50-2-3 (1993). The presumptive sentence for a Class B felony was ten years. Up to ten years could be added for aggravating circumstances. See id. § 35-50-2-5.
Footnote: The trial court stated that the imposition of a reduced sentence would depreciate the seriousness of the crime. We found this to be an inappropriate aggravating circumstance because the record did not reflect any evidence that the trial court considered imposing a sentence shorter than the presumptive term. See Sherwood, 702 N.E.2d at 700
Footnote: Ind. Code § 35-50-2-3(a) (1993).
Id. § 35-50-2-5.