Appellant (Defendant below                   ),

                                                      v.
                                               

                                                  STATE OF INDIANA,
                                        Appellee (Plaintiff below                         ).

    Defendant Paul Eddie Rhodes appeals his conviction for murder and sentence of life imprisonment without parole. We affirm the conviction. Because we find that the trial court sentenced defendant under a statute not in effect at the time of the crime, we vacate defendant's sentence of life imprisonment without parole and resentence defendant to a term of sixty years.

bailiff present; and (4) whether the trial court erred in finding defendant not to be mentally retarded within the meaning of Ind. Code § 35-36-9-2 (Supp. 1994).

Ind. Code § 35-50-2-9(a) (Supp. 1994) (emphasis added).See footnote 4 ⁴

    The effective date of the statute on which the State and the trial court relied was July 1, 1994. See 1994 Ind. Acts P.L. 158 § 7. Defendant murdered the victim on May 8, 1994, almost two months before the statute became effective. “One of our well established rules

of criminal law is that the controlling law is that which is in effect at the time the crime is committed.” Smith v. State, 675 N.E.2d 693, 695 (Ind. 1996) (citing Jackson v. State, 257 Ind. 477, 484, 275 N.E.2d 538, 542 (1971)). See also Isaacs v. State, 673 N.E.2d 757, 765 (Ind. 1996).

    Indiana Code § 35-50-2-9, as in effect on May 8, 1994, did not permit the State to request a sentence of life imprisonment without parole; a sentence of life imprisonment without parole was available only as an alternative when the State sought a sentence of death. See Ind. Code § 35-50-2-9 (1993).See footnote 5 ⁵ This contrasts with the 1994 version of the statute on which the State and the trial court relied: Ind. Code § 35-50-2-9 (Supp. 1994) permits the State to request either a sentence of death or life imprisonment without parole. Because the trial court relied on the later version of the statute, it imposed on defendant a sentence which statutorily was available to it only as an alternative when the State sought a sentence of death, which here the State had not.See footnote 6 ⁶

    Defendant asks this Court to remand this cause for resentencing under the provisions of Ind. Code § 35-50-2-9 (1993). We choose, however, to exercise our authority “in all appeals of criminal cases, . . . to review and revise the sentence imposed.” Ind. Const. art. VII, § 4. See Roark v. State, 644 N.E.2d 565, 571 (Ind. 1994); Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989). Having determined that the provisions of Ind. Code § 35-50-2-9

(1993) are not applicable to defendant because the State did not file a request for the death sentence, we turn to the statute governing sentencing for the crime of murder in effect at the time defendant murdered the victim, which provides as follows:
A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances[.]

Ind. Code § 35-50-2-3 (1993).

    In imposing the sentence of life imprisonment without parole, the trial court stated:
        The defendant has been found guilty by a jury of Murder.

        The jury has found that an aggravating circumstance exists beyond a reasonable doubt, that the aggravating circumstance outweighs mitigating circumstances, and has recommended that the sentence of life imprisonment without parole be imposed.

        The Court has considered the same evidence that was presented to the jury at trial and has considered all possible mitigating circumstances listed in I.C. 35-50-2-9(c) and all of the possible mitigating circumstances contained in the defendant's Sentencing Memorandum dated February 24, 1997.^{[See footnote 8 8 ]}

        The Court now finds the following aggravating circumstance exists beyond a reasonable doubt:
        1.    The defendant committed the murder of Antwan Majors on May 8, 1994, while on probation after receiving a sentence for the commission of a felony.

        The Court finds that the aggravating circumstance outweighs any

possible mitigating circumstances. The Court is personally convinced beyond a reasonable doubt that the defendant is guilty of the murder for which he has been convicted and that he deserves the sentence of life imprisonment without parole as to the aggravating circumstance found herein.

        The Court hereby sentences the defendant to life imprisonment without parole.

(R. at 225-26.)

    We agree with the trial court that defendant murdered Antwan Majors while defendant was on probation.See footnote 9 ⁹ We assign this aggravator weight in the middle to high range. Ind. Code § 35-38-1-7.1(b)(1) (1993). The victim was aged 14. We assign this aggravator weight in the middle to low range. Ind. Code § 35-38-1-7.1(d) (1993). Defendant has a history of criminal activity.See footnote 10 ¹⁰ We assign this aggravator weight in the middle to high range. Ind. Code § 35-38-1-7.1(b)(2) (1993). Defendant presented substantial evidence demonstrating his lack of intellectual capabilities and his unhappy and often abusive childhood. We assign these mitigating factors weight in the middle range.

    In balancing the aggravating and mitigating circumstances, we determine that the aggravators outweigh the mitigators by such a margin as to warrant a fully enhanced sentence. Defendant is a repeat offender who has proved to be highly dangerous and violent

even while on probation. We now impose on defendant the maximum sentence available under Ind. Code § 35-50-2-3 (1993), a term of sixty years.

    When reviewing the voluntariness and admissibility of a confession, this Court looks at the totality of the circumstances surrounding the case, “including the defendant's background, experience, and conduct.” Allen v. State, 686 N.E.2d 760, 772 (Ind. 1997) (citing

Edwards v. Arizona, 451 U.S. 477 (1981)). See Light v. State, 547 N.E.2d 1073, 1076 (Ind. 1989). Defendant argues that, because he is mentally retarded, he was unable to comprehend the nature of the rights he was waiving and therefore could not waive those rights knowingly or voluntarily. Without deciding at this juncture whether defendant is mentally retarded, we address whether the trial court erred in denying defendant's motion to suppress his confession.

    A defendant's mental condition alone does not render a confession involuntary. Smith v. State, 689 N.E.2d 1238, 1247-48 & n.12 (Ind. 1997) (citing cases). Defendant also must allege some misconduct on the part of the police. Id., 689 N.E.2d at 1248. “Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a defendant of due process of law.” Colorado v. Connelly, 479 U.S. 157, 164 (1986) (footnote citing cases omitted).

    Defendant does not allege any police misconduct and relies solely on his mental status in arguing that the trial court erred in denying his motion to suppress his confession. The record demonstrates that although the police requested the second interview with defendant, they did not force defendant to give a statement. Detective Stamm read defendant his rights before defendant gave the incriminating statement. When specifically questioned by the police, defendant indicated that he understood his rights and his waiver of them, and that his statement was not influenced by the ingestion of drugs.

    Defendant also argues that a note written by a juror to the court demonstrates that the jury was discussing the evidence while viewing the exhibits, and that defendant suffered prejudice by the viewing procedure. The chronology of the record demonstrates that the trial court received the note prior to the jury's viewing of the exhibits. Based on this sequence of events, we cannot conclude that this procedure prejudiced defendant.

    Defendant correctly argues that Ind. Code §§ 35-36-9-1 to -7 (Supp. 1994) (“Mental Retardation Statute”) and 35-50-2-9 (Supp. 1994) operate in conjunction to prohibit the execution of mentally retarded defendants:
[T]he state may not proceed against a defendant under this section [imposing a sentence of death or life imprisonment without parole] if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual.

Ind. Code § 35-50-2-9(a) (Supp. 1994).

    We decline to address the correctness of the trial court's ruling that defendant was not mentally retarded for the reason that the provisions of the Mental Retardation Statute were not available to defendant at the time he committed the crime here at issue. Like the statute under which defendant was sentenced, the Mental Retardation Statute became

effective on July 1, 1994. See 1994 Ind. Acts P.L. 158 § 3. As stated in part I, supra, “the controlling law is that which is in effect at the time the crime is committed.” Smith, 675 N.E.2d at 695 (citing Jackson, 257 Ind. at 484, 275 N.E.2d at 542). We have held that the Mental Retardation Statute does not apply retroactively. Allen, 686 N.E.2d at 785-86.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.

Ind. Code § 35-50-2-9(a), (e), & (g) (1993).

we say only that the State deliberately chose not to seek a sentence of death for this defendant, although such a sentence indisputably was available.

Converted by Andrew Scriven