Walter E. Bravard
Attorneys for Appellee
Jeffrey A. Modisett
Andrew L. Hedges
Attorney General of Indiana
Deputy Attorney General
Walter E. Bravard
Attorneys for Appellee
Jeffrey A. Modisett
Andrew L. Hedges
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
On September 7, 1995, defendant Dwayne Taylor pled guilty to MurderSee footnote 1 , a class A felony. On December 11, 1995, the trial court sentenced Taylor to 60 years in prison. The
sole issue in this appeal is the propriety of the sentence. We affirm.
Defendant had confronted Penny and shot her in the face. Stephanie Penny died
from her wounds. On September 7, 1995, after withdrawing his initial not-guilty plea,
defendant pled guilty to the charge of Murder without the benefit of a plea agreement with
Defendant asserts that his 60 year sentence is manifestly unreasonable because the
trial court (1) failed to provide justification for the cited aggravating circumstances, (2)
relied on prior uncharged misconduct to enhance the sentence, and (3) failed to consider all
mitigating circumstances. We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7).
a sentence, a trial court must: (1) identify significant aggravating and mitigating circum
stances; (2) state the specific reason why each circumstance is aggravating or mitigating; and
(3) evaluate and balance the mitigating against the aggravating circumstances to determine
if the mitigating offset the aggravating circumstances. Mitchem v. State, 685 N.E.2d 671,
678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
Master Commissioner Young presided over the sentencing hearing on November 7,
1995. After the hearing, the Master Commissioner recommended to Judge Magnus-Stinson
that defendant serve a maximum sentence of sixty (60) years. At the sentencing hearing, the
Master Commissioner explained the basis for the sentence as follows:
I'll show that I accept the pre-sentence report's aggravating factors as being
That there is a history of violent behavior. That there is a need for
correctional rehabilitative treatment that can best be provided by commitment
to a penal facility. That I find the lying in wait as an aggravator. I think it has
been admitted and proved that that's what happened. I think that imposition
of a reduced sentence would depreciate the seriousness of the crime. In
reviewing the statutory mitigating factors, I do believe it's a mitigator that
you've expressed remorse and I think that your minimal criminal history is
also a mitigator. But, I do not believe that those mitigators outweigh the
premeditated, lying in wait, nature of this offense. And based upon that I'm
going to find that the aggravating outweigh the mitigating factors in this case,
impose the maximum sentence of sixty (60) years . . . .
(R. at 134-36). The Judge approved the Master Commissioner's recommendation
In such a crime, there is considerable time expended in planning, stealth and anticipation of the appearance of the victim while poised and ready to commit an act of killing. Then, when the preparatory steps of the plan have been taken and the victim arrives and is presented with a diminished capacity to employ defenses, the final choice in the reality of the moment is made to act and kill. This aggravating circumstance serves to identify the mind undeterred by contemplation of an ultimate act of violence against a human being and, of equal importance, the mind capable of choosing to commit that act upon the appearance of the victim.
Thacker, 556 N.E.2d 1315, 1324-25 (Ind. 1990). In fact, the Indiana General Assembly has
found lying in wait to be so egregious as to justify a sentence of death in certain circum
stances. See Ind. Code § 35-50-2-9(a) & (b)(3) (Supp. 1994).See footnote
We have construed this
statutory aggravator as "deserving consideration for the penalty of death those who engage
in conduct constituting watching, waiting and concealment with the intent to kill, and then
choosing to participate in the ambush upon the arrival of the intended victim." Thacker,
556 N.E.2d at 1325. Accordingly, the presence of this aggravating circumstance in any
murder is significant and warrants the consideration of an enhanced sentence.
Here, defendant carefully planned his attack on Penny. He took a chair and bedding
and hid in Penny's storage shed. He waited for Penny for twenty-one hours. He watched
for her through a small hole in the shed. Once Penny opened the door to the shed, "she was
surprised to see him and ran." Defendant chased Penny, averted an attempt by her brother
to subdue him, and confronted Penny before he shot her in the face and killed her. These
actions are demonstrative of a "mind undeterred by contemplation of an ultimate act of
violence against a human being and, of equal importance, the mind capable of choosing to
commit that act upon the appearance of the victim." Thacker, 556 N.E.2d at 1325.
Although the non-capital sentencing statute does not specifically cite the lying in wait
element of a crime as a separate aggravator, a court may consider the nature and circum
stances of a crime to determine what sentence to impose. Ind. Code § 35-38-1-7.1(a)(2)
(Supp. 1994). See also Scheckel v. State, 620 N.E.2d 681, 685 (Ind. 1993) (the particularly
heinous nature and circumstances of the crime were considered as an aggravator). Further,
the manner in which a crime is committed can be considered as an aggravating circum
stance. Concepcion v. State, 567 N.E.2d 784, 791 (Ind. 1991). Accord Smith v. State, 675
N.E.2d 693, 698 (Ind. 1996) (defendant's planning of a crime may serve as an aggravating
circumstance); Bustamante v. State, 557 N.E.2d 1313, 1322 (Ind. 1990) (careful planning of
a crime may serve as a proper aggravating circumstance).
The trial court's sentencing statement reflected the particular lying in wait circum stances of this crime. "Mr. Taylor everybody feel[s] pain, everybody feel[s] frustrated at some point. But, they don't go out and shoot people. . . . [T]hey don't sit and lay in wait for somebody." (R. at 131.) The court expressed its understanding that everyone may feel that life is "rotten;" but, "what you did was then to decide well, I'm gonna lay in wait and kill somebody." (R. at 132-33.) The trial court provided sufficient explanation for its reliance on the lying in wait nature of the crime as an aggravating circumstance in enhancing the presumptive sentence.
(R. at 118-21.)
Defendant contests the use of criminal activity as an aggravator because he has never
been convicted of a crime. He argues that under such circumstances, a trial court may not
consider arrests alone in order to enhance a presumptive sentence.
The trial court found that defendant had "a history of violent behavior." (R. at 134.)
We have held that "[a]lthough a record of arrest, without more, may not be properly consid
ered as evidence of prior criminal history, 'such information may be relevant to the trial
court's assessment of the defendant's character in terms of risk that he will commit another
crime.'" Ealy v. State, 685 N.E.2d 1047, 1058 (Ind. 1997) (citations omitted). A trial court
may evaluate "any other factor which reflects on the defendant's character, good or bad"
when determining the appropriate sentence to impose. Tunstill v. State, 568 N.E.2d 539,
545 (Ind. 1991). See also Ind. Code § 35-38-1-7.1(d) (Supp. 1994) (statutory list of aggra
vating circumstances is not exhaustive). Although we have stated that a defendant's arrest
record alone cannot justify an enhanced sentence, it does not preclude a trial court from
attributing to a defendant's arrest record the risk that defendant may commit a similar act in
the future. Accord Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998) (allegations of prior
criminal history need not be reduced to conviction to be considered a proper aggravating
factor); Scheckel, 620 N.E.2d at 683; Tunstill, 568 N.E.2d at 545.
The trial court demonstrated sensitivity to these distinctions when it responded to the
State's and defendant's respective arguments over the propriety of considering the arrest as
an aggravating circumstance:
I can look at charged and uncharged, . . . and I can look at the cases in which
he's charged and cases that were not brought down to conviction. But, I also
think that the relative weight that I give to each one of those incidents. I give
more weight to a conviction than I do an arrest and I give more weight to an
arrest than I do to somebody just coming in and saying such and such hap
pened and nothing else to substantiate it.
(R. at 122-23.) The trial court's focus on the defendant's behavior coupled with its prioritiz
ation of the relative weight assignable to different types of incidents appears to us to be an
appropriate way to assess defendant's character. See Ind. Code § 35-38-1-7.1(a)(1) to (3)
(Supp. 1994).See footnote
The court also considered the defendant's minimal criminal history, evi
denced by the absence of any prior criminal convictions, as a mitigating circumstance.
Moreover, this was not the sole factor used to enhance defendant's sentence. We conclude
that the trial court appropriately considered and weighed defendant's prior criminal activity
in enhancing defendant's presumptive sentence.
the court: (1) defendant did not have a criminal record, (2) defendant cooperated with the
authorities _ he turned himself and the hand gun over to the police, and gave a full confes
sion, and (3) defendant expressed remorse. The record reflects that the trial court acknowl
edged the "cooperation" mitigator, but dismissed it as a significant mitigator because defen
dant's cooperation was "after the fact."See footnote
The trial court did accept two of the mitigators that
defendant presented: defendant's minimal criminal history and his remorsefulness. The
record shows that the trial court heard the mitigating factors presented by defendant,
carefully considered them, and then found two of the mitigating circumstances to be signifi
Although the trial court improperly applied two of the aggravating factors, we find that the court engaged in a weighing and balancing of the aggravating and mitigating factors. Despite a trial court's improper application of an aggravating circumstance to enhance a sentence, "this Court will affirm if the other aggravating circumstances are adequate to support the sentence imposed." Scheckel, 620 N.E.2d at 684 (citations omitted). Here, the lying in wait aggravating circumstance falls within the highest range of aggravation and is
adequate to support the sentence imposed. We find no error in the trial court's enhancement
of defendant's sentence.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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