ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD W. PAGOS STEVE CARTER
Michigan City, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
HEATHER J. SHAW,
) ) Appellant-Defendant, ) ) vs. ) No. 46A05-0202-CR-65 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Shaw next attempted to induce an allergic reaction from Glumac by changing laundry
detergent. This, too, did not achieve her desired result of sending Glumac
back to the hospital. She then, for six days, replaced Glumacs kidney
medication with different medication that she had stolen from another patient. She
became very frustrated that there was no apparent effect on Glumac.
On June 13, Shaw obtained antifreeze, and the following day, she put a
potentially lethal dose in Glumacs coffee. She made sure that he drank
all of it and then left for her day job. Shaw returned
later that day and found Glumac incoherent and confused. Finally, she had
succeeded and Glumac was hospitalized on June 14.
Shaw visited Glumac in the hospital each day and spent time with his
family. At no time did she alert anyone to the possibility that
he might be suffering from being poisoned. After a lengthy visit on
June 17, she took one of Glumacs checks, forged it, and cashed it
for one hundred dollars. On June 18, Glumacs family disconnected his life
support and the following day he passed away from kidney failure. That
same day, Shaw forged another one hundred dollar check.
On June 27, Shaws best friend sought out the police and informed them
of what she knew about Shaws conduct. Police questioned Shaw soon thereafter,
but she denied any wrongdoing. A second interview with Shaw was conducted
on July 5. She initially admitted stealing Glumacs checks but denied poisoning
him. Once a lie detector test was set up, Shaw broke down
The State charged Shaw with attempted murder on July 8, 1999. The
State initially believed that it could not prove the cause of death because
Glumac had been cremated. On February 18, 2000, however, the State filed
a motion to amend the charging information to add a charge of murder.
Before the trial court could rule upon the motion, Shaw reached a
plea agreement with the State. Pursuant to the plea agreement, Shaw pled
guilty to attempted murder and the State dismissed forgery charges that were filed
in a separate action. The plea agreement made no provision with regard
Id. at *2-4.
The trial court sentenced Shaw to fifty years imprisonment. In her first appeal, Shaw argued that the trial court improperly considered Glumacs death as an aggravating circumstance. See footnote Id. at *5. Relying on Conwell v. State, 542 N.E.2d 1024 (Ind. Ct. App. 1989), a panel of this court determined that the trial court erred when it considered Glumacs death as an aggravating circumstance because attempted murder is a lesser included offense of murder and when a defendant pleads guilty to an included offense, the element(s) distinguishing it from the greater offense may not be used as an aggravating circumstance to enhance the sentence. Id. at *6. The case was then remanded for proceedings consistent with our opinion.
On remand, the trial court again sentenced Shaw to fifty years imprisonment. Shaw now appeals.
Id. (internal citation omitted); see also Newman v. State, 719 N.E.2d 832, 839
(Ind. Ct. App. 1999), trans. denied (2000).
A sentencing statement must include: (1) the identification of all significant mitigating and aggravating circumstances; (2) the specific facts and reasons that led the court to find the existence of each such circumstance; and (3) reflection of an evaluation and balancing of the mitigating and aggravating circumstances in fixing the sentence. OConnell v. State, 742 N.E.2d 943, 951 (Ind. 2001) (citing Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995)). In her first appeal, Shaw did not argue that the trial courts sentencing statement was insufficient, and we find that the trial courts original sentencing statement sufficiently identified and discussed the aggravating and mitigating circumstances and reflected a balancing of those circumstances in fixing Shaws sentence. The case was remanded for re-sentencing solely on the grounds that the trial court considered an improper aggravating circumstance. Where a case has been remanded for re-sentencing, a trial courts responsibility in that circumstance is to produce a new sentencing order that responds to the concerns raised by our court. See footnote Id. at 952.
In this case, the trial court issued the following amended sentencing order on remand: [t]he court has now engaged in the process of reweighing the valid aggravating circumstances and mitigating circumstances and finds that the aggravating circumstances outweigh the mitigating circumstances. The Court further finds that the original sentence of fifty (50) years remains appropriate. Appellants Appendix at 107 (emphasis added). Although the amended sentencing order does not specifically set out each aggravating and mitigating circumstance, it sufficiently responds to this courts concern that the trial court initially considered an improper aggravating circumstance. Therefore, the amended order taken in conjunction with the original sentencing order is sufficient.
MATHIAS, Judge, dissenting
I respectfully dissent.
Our supreme court has determined that the maximum possible sentences are generally most appropriate for the worst offenders. Buchanan v. State 767 N.E.2d 967, 973 (Ind. 2002) (quoting Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000)). As the majority noted, Shaw argues that she is not the very worst offender because of her lack of criminal history. Slip Op. at 7.
Our General Assembly has determined that a defendants prior or lack of criminal history is so significant that trial courts shall consider it when determining what sentence to impose. See Ind. Code § 35-38-1-7.1(a) (Supp. 2002); see also Hildebrandt v. State, No. 82A01-0108-CR-311, 2002 Ind. App. LEXIS 897, at *12-13 (June 7, 2002). The statute appropriately encourages leniency toward defendants who have not previously been through the criminal justice system. Biehl v. State, 738 N.E.2d 337, 339 (Ind. Ct. App. 2000), trans. denied. Our supreme court has also recognized that a lack of criminal history is significant in sentencing. Id. It has found the maximum sentence to be manifestly unreasonable in a number of cases, at least in part, due to the defendants lack of a prior criminal history. Id. (citing Edgecomb v. State, 673 N.E.2d 1185 (Ind. 1996); Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996); Willoughby v. State, 660 N.E.2d 570 (Ind. 1996); Widener v. State, 659 N.E.2d 529 (Ind. 1995); Walton v. State, 650 N.E.2d 1134 (Ind. 1995); Harrington v. State, 584 N.E.2d 558 (Ind. 1992)).
Perhaps Shaw should have been tried for murder. She was initially charged with attempted murder but seven months later, the State moved to amend the charging information to add a charge of murder. However, before the trial court could rule on the States motion to amend, Shaw and the State agreed to the terms of a plea agreement on the attempted murder charge.
Plea agreements are a well-established part of our system of justice. They represent the best interests both of law enforcement, through the prosecuting attorney, and of the individual defendant involved. Most importantly, they are subject to review and approval by the judiciary. See Ind. Code § 35-35-3-3 (1998).
Judge Gilmore was charged with the difficult decision of reviewing Shaws plea agreement. He chose to approve the agreement, when he could have chosen to reject it instead, especially in light of the States pending motion to amend the charging information to add the charge of murder. But by approving the plea agreement, he established the possible sentencing range at a presumptive thirty years, with a minimum sentence of twenty years and a maximum sentence of fifty years. See Ind. Code § 35-50-2-4 (1998). In comparison, the possible sentencing range for murder would have been a presumptive sentence of fifty-five years, with a minimum sentence of forty-five years and a maximum sentence of sixty-five years. See Ind. Code § 35-50-2-3 (1998).
At the initial sentencing hearing, before the first appeal and remand, Judge Gilmore found the following valid aggravating circumstances: 1) Shaws actions were but a part of a prolonged effort to harm Glumac; 2) Shaw was in a position of trust with Glumac and his family and Glumac was entirely dependent upon her help and care; 3) Glumac was seventy-three years old at the time the events took place; and 4) after Glumac was taken to the hospital upon ingesting the antifreeze, Shaw never offered any information to Glumacs medical providers, which possibly could have saved his life. Appellants App. pp. 81-82. In addition, the trial court found the following mitigating circumstances: 1) Shaw pled guilty; 2) Shaw had no previous criminal history other than traffic-related matters; and 3) Shaw expressed remorse for her actions to Glumacs family. See footnote Id. at 82. Most importantly, however, in order to determine that Shaws conduct warranted the maximum available sentence of fifty years, Judge Gilmore also incorrectly considered Mr. Glumacs death as an aggravating circumstance.
The death of Mr. Glumac obviously and understandably troubled Judge Gilmore at sentencing. However, as our court found in Shaws first appeal, it was inappropriate to consider Mr. Glumacs death when sentencing Shaw, and the case was remanded for re-sentencing on those grounds.
Upon re-sentencing, Judge Gilmore issued the following amended sentencing order: [t]he court has now engaged in the process of reweighing the valid aggravating circumstances and mitigating circumstances and finds that the aggravating circumstances outweigh the mitigating circumstances. The Court further finds that the original sentence of fifty (50) years remains appropriate. Appellants App. p. 107 (emphasis added).
The nature of Shaws offense was a Class A felony, not murder. We should consider the nature of the offense in determining whether to revise the sentence imposed, as an indicator of a policy preference for imposition of the presumptive sentence. Bradley v. State, No. 49A02-0107-CR-494, 2002 Ind. App. LEXIS 967, at *13 n.8 (June 19, 2002) (citing Hildebrandt, 2002 Ind. App. LEXIS 897, at *11). As we noted in Hildebrandt, the presumptive sentence is meant to be the starting point for any courts consideration of the sentence which is appropriate for the crime committed. Hildebrandt, 2002 Ind. App. LEXIS 897, at *11. In addition, part of our task upon review is to seek reasonable sentencing consistency statewide.
As the sentencing aggravators and mitigators disclose, the character of this offender clearly merits a sentence substantially in excess of the presumptive sentence. However, without the inappropriate aggravator of Mr. Glumacs death, and with the continued importance of the essentially mandatory mitigating circumstance of no significant prior criminal history, Judge Gilmores summary re-sentencing to the maximum available sentence of fifty years was manifestly unreasonable. I would therefore remand this case to the trial court with instruction to reduce Shaws sentence to forty-five years.