ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher A. Cage Jeffrey A. Modisett
Anderson, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
DONTAY L. JONES, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 48S00-9709-CR-489 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
SHEPARD, Chief Justice.
Appellant Dontay Jones was charged with murder, Ind. Code Ann. § 35-50-2-3 (West 1998); attempted robbery, a class A felony, Ind.
Code Ann. § 35-42-5-1 (West 1998); and carrying a handgun without
a license, a class A misdemeanor, Ind. Code Ann. § 35-47-2-1 (West
1998). Jones pled guilty to murder and the handgun violation. The
trial court sentenced him to the presumptive term of fifty-five
years for murder, with a concurrent one-year sentence for the
Appellant raises two issues in this direct appeal:
(1) Whether the trial court was required to create a detailed sentencing statement articulating its reasons for imposing the presumptive sentence for murder, and
(2) Whether the trial court erred in rejecting Jones'
proposed mitigating circumstances.
According to Jones, the other two men made their way into the
home before him. Raymond Johnson attempted to subdue Peters by
striking him in the head with his gun. Peters, however, shot the
three intruders with his own weapon. The trespassers then shot and
Sentencing is conducted within the "discretion of the trial court and will be reversed only upon a showing of abuse of that discretion." Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). The trial court also has discretion to determine "whether a presumptive sentence will be increased or decreased because of aggravating or mitigating circumstances." Id. When a standard sentence has been imposed, we presume that the trial court considered "the risk that the person will commit another crime, the nature and circumstances of the crime committed, and the prior criminal record, character, and condition of the person." Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986) (citing Keys v. State, 390 N.E.2d 148, 152 (Ind. 1979)). Finally, and most importantly as it relates to Jones' issue, a sentencing judge must articulate her reasoning only when
she deviates from the statutory presumptive sentence. Finch v.
State, 510 N.E.2d 673 (Ind. 1987); Winfrey v. State, 547 N.E.2d 272
The trial judge here imposed the presumptive term for the
murder conviction and thus was not required to state a basis for
imposing that sentence.
Jones concedes the proposition articulated in Tunstill v. State that a trial court is not "obliged to accord the same weight to a factor which the defendant considers mitigating or to find mitigators simply because it is urged by the defendant." 568 N.E.2d 539, 546 (Ind. 1991). However, appellant urges that this grant of discretion to a trial judge is appropriate only where opposing parties cannot agree about the existence of mitigating factors. Appellant further suggests that there was no dispute as to the mitigating evidence presented, and, as a result, the trial judge
was required to accord as much weight to the mitigating
circumstances as did the respective parties.
Sentencing decisions are within the discretion of the trial
court and we will reverse only upon a showing of abuse of that
discretion. Sims, 585 N.E.2d at 272. When a trial court imposes
the presumptive sentence, we have long held that it will be
presumed on appeal that the trial court considered the proper
factors in making its sentencing determination. Hammons, 493
N.E.2d at 1254; see also Ind. Code Ann. § 35-38-1-7.1 (West 1998)
(listing aggravating and mitigating factors).
When a court engages in a balancing process between
aggravating and mitigating circumstances, it is obligated to
include a statement of its reasons for selecting the sentence
imposed. Hammons, 493 N.E.2d at 1254; Ind. Code Ann. § 35-38-1-3
(Ind. 1998). The trial court is not required to find mitigating
circumstances which are offered by a defendant or to explain why he
has chosen not to make such a finding, Hammons, 493 N.E.2d at 1254-
55, though the failure of a trial court to find mitigating
circumstances which are clearly supported by the record may
reasonably give rise to a belief that they were overlooked and
hence not properly considered, id. at 1255.
It appears clear from the statement the trial judge made at the close of the sentencing hearing that the court indeed engaged
in a balancing of aggravating and mitigating factors.See footnote
mitigation, he recognized that Jones' lacked a male role model
during his formative years and that he was only eighteen when he
committed the crime. The judge also indicated several aggravating
factors, including Jones' criminal history at an early age, his
intoxicated state when he committed the crime, and his disregard
for the hardship that his potential incarceration would cause his
young child and girlfriend.
A judge's use of aggravating factors to offset a mitigating
factor in order to arrive at a presumptive sentence is well within
his discretion--indeed it exhibits the type of reasoning required
by our law.
At the heart of Jones' argument, however, is his contention that the trial court failed to consider additional mitigating circumstances strongly supported by the record.See footnote 2 Our review of the record causes us to believe Jones' claim is without merit. What constitutes a "significant" mitigating factor is generally within the discretion of the trial court. See Ross v. State, 676 N.E.2d 339, 347 (Ind. 1997) (stating, "the 'proper' weight to be afforded
by the trial court to the mitigating factors may be to give them no
weight at all.").
We have on occasion found an abuse of discretion on the
grounds that a trial court failed to consider significant
mitigating factors, see, e.g., Tunstill, 568 N.E.2d at 545 (holding
the trial court abused its discretion in failing to consider as
mitigating the undisputed fact that the victim induced the
defendant by delivering unprovoked blows to the defendant). The
mitigating factors argued by Jones are not of the Tunstill caliber,
and the court did not abuse its discretion by declining to give
them such weight as would lead to a reduced sentence.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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