C. Kenneth Wilber
Attorneys for Appellee
Preston W. Black
South Bend, Indiana
Attorney General of Indiana
Deputy Attorney General
C. Kenneth Wilber
Attorneys for Appellee
Preston W. Black
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
Defendant contends that the trial court improperly sentenced defendant to a cumula
tive term of 220 years. We disagree with defendant and affirm the trial court.
Defendant awakened the first woman and ordered her to perform fellatio on him.
Later, Mitchem raped both women. Lee also raped the second woman. At one point, Greer
told the first woman, "Don't try to escape because if any of you all survive I got some boys
from Chicago that will come and finish the job." The first woman then told Greer that she
"had babies . . . to raise" and Greer responded that he "couldn't leave any witnesses."
Mitchem then ordered the four victims to kneel over a mattress on the floor. Greer
stated "I'm going to count to five and we [sic] going to start shooting." Greer, Mitchem and
Lee then opened fire on the four victims and fired a total of 21 shots. They shot the first
woman seven times, the first man four times, the second woman four times, and the second
man six times. The second man was killed. The other three miraculously survived.
Defendant was charged with Murder,See footnote
Burglary, a class B felony,See footnote
three counts of
Attempted Murder,See footnote
class A felonies, and Criminal Deviate Conduct, a class A felony.See footnote
Defendant was tried jointly with Mitchem and Lee and was found guilty of all charges. The
trial court entered judgment on each guilty verdict and sentenced defendant to enhanced
terms of 60 years for Murder, 15 years for Burglary, 40 years each for each count of
Attempted Murder, and 40 years for Criminal Deviate Conduct. The court ordered the
sentence for Burglary to be served concurrently with the sentence for Murder and the
sentences for the other offenses to be served consecutively to one another. This resulted in
a total executed term of 220 years.
In 1994, the Indiana legislature amended Ind.Code § 35-50-1-2 to add a limitation
upon a trial court's authority to order terms of imprisonment to be served consecutively.See footnote
The statute, as amended, read in relevant part:See footnote
The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for murder and felony convictions for which a person receives an enhanced penalty because the felony resulted in serious bodily injury if the defendant knowingly or intentionally caused the serious bodily injury, the total of the consecutive terms of imprisonment, exclusive of the terms of imprisonment
under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced
for felony convictions arising out of an episode of criminal conduct shall not
exceed the presumptive sentence for a felony which is one (1) class of felony
higher than the most serious of the felonies for which the person has been
Ind.Code § 35-50-1-2(a) (Supp. 1994).
Application of this statute requires several steps. First, we identify the presumptive
sentence for a felony that is one class higher than the most serious felony that defendant was
charged with. Id.; Salone v. State, 652 N.E.2d 552, 562 (Ind. Ct. App. 1995), trans. denied.
Here, the most serious felony defendant was convicted of was Murder, which had a pre
sumptive term of 50 years. Ind. Code § 35-50-2-3 (Supp. 1994). Since there is no felony
higher than Murder, the presumptive sentence of 50 years for Murder is the maximum term
of imprisonment that defendant can be sentenced to for his convictions arising out of this
"episode of criminal conduct" except for "murder and felony convictions for which a person
receives an enhanced penalty because the felony resulted in serious bodily injury if the
defendant knowingly or intentionally caused the serious bodily injury." Ind.Code § 35-50-
Thus the next step of our analysis requires analyzing whether any of the convictions for which defendant received consecutive sentences _ the three Attempted Murder and one Criminal Deviate Conduct convictions _ constitute convictions for which defendant (i) received an enhanced penalty because the felony resulted in serious bodily injury and, if so,
(ii) the defendant knowingly or intentionally caused serious bodily injury.See footnote
Several matters relevant to this inquiry are clear.
First, defendant received an enhanced sentence for each of the felonies in question.
Attempted Murder and Criminal Deviate Conduct as charged here are Class A felonies. The
presumptive sentence for a Class A felony is 25 years. Ind. Code § 35-50-2-4 (Supp. 1994).
The trial court enhanced the sentence for each of these convictions to 40 years.
Second, each of the victims suffered serious bodily injury. The definition of "serious
bodily injury" is defined as "bodily injury that creates a substantial risk of death or that
causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or
protracted loss or impairment of the function of a bodily member or organ." Ind. Code § 35-
41-1-25 (1993). The first woman was shot seven times. The first man was shot four times.
The second woman was shot four times.
Third, defendant knowingly or intentionally caused the serious bodily injury. While
defendant claims there was no evidence to show that defendant knowingly or intentionally
caused serious bodily injury during the commission of the Attempted Murder and Criminal
Deviate Conduct felonies, we conclude otherwise. The jury convicted defendant of each of
these offenses in which a knowing or intentional mens rea was an element and in which
serious bodily injury indisputably occurred.See footnote
Defendant does not dispute the sufficiency of
the evidence to support these convictions.
Defendant maintains that because none of the three surviving victims actually saw defendant shoot them, it cannot be shown that defendant intended to cause serious bodily injury to any one of them. He also argues that there was no physical proof linking the bullets fired from his gun to particular victims. However, among the three assailants, a total of 21 shots were fired simultaneously. Defendant had specifically stated that he intended to
kill "any witnesses." All three of the Attempted Murder victims clearly were potential
witnesses. Given the jury's verdicts, the number of shots fired, and defendant's clearly
expressed intention to kill all of the victims, it is beyond dispute that defendant knowingly
or intentionally caused serious bodily injuries to the three victims of Attempted Murder.
The sole question which remains is whether sentences for the convictions in question
were enhanced because the felonies resulted in serious bodily injury. While the sentencing
hearing and order are not absolutely explicit on this point, the trial court clearly indicated
that among the reasons for imposing enhanced and consecutive sentences was "the serious
ness of the totality of these crimes." (R. 1573, 1575.) Given the circumstances, we have
little doubt in concluding that this was a reference to the serious bodily injuries inflicted.
Defendant's convictions for Attempted Murder were exempted from the term of
imprisonment limitation imposed by Ind.Code § 35-50-1-2 and therefore the trial court did
not violate its terms in sentencing defendant to a total term of 220 years.See footnote
SHEPARD, C.J., and DICKSON, SELBY and BOEHM, JJ., concur.
(a) As used in this section, "crimes of violence" means:
(1) murder (IC 35-42-1-1);
(2) voluntary manslaughter (IC 35-42-1-3);
(3) involuntary manslaughter (IC 35-42-1-4);
(4) reckless homicide (IC 35-42-1-5);
(5) aggravated battery (IC 35-42-2-1.5);
(6) kidnapping (IC 35-42-3-2);
(7) rape (IC 35-42-4-1);
(8) criminal deviate conduct (IC 35-42-4-2);
(9) child molesting (IC 35-42-4-3);
(10) robbery as a Class A felony or Class B felony (IC 35-42-5-1); or
(11) burglary as a Class A or a Class B felony (IC 35-43-2-1).
. . . .
(c) . . . The court may order terms of imprisonment to be served consecutively even
if the sentences are not imposed at the same time. However, except for crimes of
violence, the total of the consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is
sentenced for felony convictions arising out of an episode of criminal conduct shall
not exceed the presumptive sentence for a felony which is one (1) class of felony
higher than the most serious of the felonies for which the person has been convicted.
Ind. Code § 35-50-1-2 (c)(Supp. 1996).
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