ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Douglas Norris Steve Carter
Cambridge City, Indiana Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
JOSEPH C. MONEGAN, ) ) Appellant (Defendant Below ), ) ) v. ) No. 89S00-0010-CR-600 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
October 16, 2001
Joseph Monegan appeals his sentence for murder. Among other things, he challenges as unexplained the trial courts finding that he was in need of correctional and rehabilitative treatment that could best be provided by commitment to a penal facility. We conclude that Senior Judge Reinkes findings on this point are a model of clarity.
On remand, the trial court sentenced Monegan to the presumptive term of fifty
years and enhanced his sentence by ten years. The court listed three
aggravating factors as justifications for the enhanced sentence. Monegan again appeals his
sentence. We affirm.
When enhancing a sentence, a trial court is required to state its specific
reasons for doing so. Georgopulos v. State, 735 N.E.2d 1138 (Ind. 2000).
Accordingly, the courts sentencing statement must: (1) identify significant aggravating and mitigating
circumstances, (2) state the specific reason why each circumstance is aggravating or mitigating,
and (3) demonstrate that it balanced the aggravating and mitigating circumstances in reaching
its sentence. Ajabu v. State, 722 N.E.2d 339, 343 (Ind. 2000).
In relying on the correctional or rehabilitative treatment aggravator of Indiana Code §
35-38-1-7.1(b)(3), it is not enough that the sentencing court simply recite the statutory
language. See Culver v. State, 727 N.E.2d 1062, 1072 (Ind. 2000).
Rather, the court must give a specific and individualized reason why the defendant
is in need of correctional [or rehabilitative] treatment that can best be provided
by a period of incarceration in excess of the presumptive sentence. Ajabu,
722 N.E.2d at 343 (emphasis in original).
Monegan argues that the court failed to give an individualized statement explaining why sixty years of correctional or rehabilitative treatment would be necessary as opposed to the presumptive term of fifty years. On the contrary, after reading the sentencing order and the transcript of the sentencing hearing, we conclude that Judge Reinke did a commendable job of explaining why an enhanced sentence was necessary in this case.
Judge Reinke set out Monegans long history of encounters with the law and
explained how each encounter failed to deter Monegan from criminal conduct. The
judge also noted the various types of care and rehabilitation the juvenile justice
system had provided Monegan since the age of twelve, all of which proved
See footnote Judge Reinke concluded his discussion of the aggravating factors by noting,
All of these factors demonstrate that any rehabilitation of [Monegan] will be extremely
difficult to achieve, and will require extreme long term commitment. (Resent. R.
at 84.) This was a textbook explanation.
Monegan next argues that the trial court improperly considered four prior apprehensions that
did not result in convictions. In the sentencing order, Judge Reinke listed
as support for the recidivism aggravator the fact that Monegan was arrested in
January 1995 for receiving stolen property and carrying a firearm without a license.
(Resent. R. at 82.) The two charges were subsequently dismissed.
(R. at 313-15.) In addition, three other arrests that did not result
in convictions were mentioned during the sentencing hearing.See footnote (Resent. R. at 139-40.)
A similar claim was advanced in Sherwood v. State, 702 N.E.2d 694, 700 (Ind. 1998), in which the trial court considered defendants prior arrest for wrongful use of cocaine for sentencing purposes. The trial court listed this prior arrest as an aggravator. See id. We held that to the extent the trial court viewed the prior arrest as evidence of criminal history it would be improper under Indiana Code § 35-38-1-7.1(b)(2). See id.
On the other hand, such an arrest could properly be considered under Indiana
Code § 35-38-1-7.1(d) as evidence that subsequent antisocial behavior on the part of
the defendant has not been deterred even after having been subject to the
police authority of the State. Id. (quoting Tunstill v. State, 568 N.E.2d
539, 545 (Ind. 1991)). As noted in the Tunstill opinion, we have
upheld this use of arrests not reduced to convictions in a long line
of cases. See, e.g., Creasy v. State, 518 N.E.2d 785, 787 (Ind.
1988); Dillon v. State, 492 N.E.2d 661, 663 (Ind. 1986).
That is precisely how this sentencing court considered the arrests. Regarding the
1995 arrest, the court stated in the sentencing order:
Such arrest does not establish the fact of the commission of the acts for which [Monegan] was arrested, but it does establish that [Monegans] subsequent antisocial behavior was not deterred even after [Monegan] was so subject to the police authority and made aware of the States oversight of the activities of its citizens.
(Resent. R. at 82.) Moreover, with regard to the other three unconvicted arrests, the court said:
Those matters were not pursued to criminal, to adjudication, but on the other hand the fact that [Monegan] knows that he is the subject of an arrest, and he knows there is a Criminal Justice System out there that can impose sanctions, and even after he knew it for months he continued to deal drugs to hundreds of people . . . .
(Resent. R. at 141.) Rather than as evidence of prior criminal history, the trial court properly deemed Monegans four prior apprehensions as evidence that his antisocial behavior was not deterred by numerous encounters with the law. There was no error on this point.
Monegans argument would be appropriate had the trial court used these arrests under
Indiana Code § 35-38-1-7.1(b)(2) as evidence of prior criminal activity. We have
repeatedly rejected this use. See, e.g., Tunstill, 568 N.E.2d at 545.
As we have just noted, however, Monegans prior arrests were considered for their
psychological impact upon the defendant under Indiana Code § 35-38-1-7.1(d)
See footnote , which gives a
sentencing court the flexibility to consider any factor which reflects on the defendants
A record of prior arrests reveals that subsequent antisocial behavior has not been
deterred although the defendant has been subject to the police authority of the
State and made acutely aware of its regulation of possible misconduct. As
aggravating circumstances go, this seems less weighty than other, more tangible aggravators, but
we are not persuaded that it is unconstitutional to take it into account.
As authority for the argument that this use of prior arrests violates his
Due Process rights, Monegan cites two U.S. Supreme Court decisions. The first,
Gardner v. Florida, 430 U.S. 349, 361-62 (1977), is a plurality decision in
which the Court invalidated the imposition of a death sentence because the sentencing
judge relied on a confidential, undisclosed pre-sentence investigation report. The second, Townsend
v. Burke, 334 U.S. 736, 740-41 (1948), involved the reversal of two sentences
imposed on an unrepresented defendant because the absence of counsel prevented the defendant
from effectively refuting the sentencing courts misreading of the record. Neither is
applicable to the case at hand.
First, the trial court did not rely on any undisclosed or confidential information.
The court and counsel discussed Monegans history of criminal conduct numerous times.
(Resent. R. at 126, 129-31, 133, 137-38.) Second, Monegan was represented
throughout trial by counsel, who had the opportunity to correct any misreading of
the record by the trial court. Finally, Monegans record was not misread.
As previously noted, Judge Reinke thoroughly analyzed and discussed Monegans past conduct
in deciding upon the sentence imposed. His consideration of Monegans prior arrests,
analyzed in the way he did and placed alongside a substantial list of
convictions, was not a denial of Due Process.
A trial court is not obligated to "credit or weigh a possible mitigating
circumstance as defendant suggests it should be credited or weighed."
State, 689 N.E.2d 678, 684 (Ind. 1997) (citations omitted). As we stated
in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999), Age is neither
a statutory nor a per se mitigating factor. There are cunning children
and there are naïve adults. In other words, focusing on chronological age,
while often a shorthand for measuring culpability, is frequently not the end of
the inquiry for people in their teens and early twenties. See Ellis
v. State, 736 N.E.2d 731, 736 (Ind. 2000). There are both relatively
old offenders who seem clueless and relatively young ones who appear hardened and
A cursory examination of Monegans record of criminal activity in addition to the
crimes he admitted at trial reveals a trail of criminal conduct that is
rather substantial for a person of his age.
See footnote Certainly, Monegan was beyond
the age where the law commands special treatment.See footnote "Our statutes evince strong
legislative sentiment that a child younger than sixteen should be treated differently in
our judicial and correctional systems than one who is sixteen or older."
Trowbridge v. State, 717 N.E.2d 138, 150 n.7 (Ind. 1999) (quoting Carter v.
State, 711 N.E.2d 835, 843 (Ind. 1999)).
Monegan cites several cases where youth was a significant mitigating factor warranting a
reduction in sentence, but these examples are easily distinguishable. See, e.g., Brown
v. State, 720 N.E.2d 1157, 1159-60 (Ind. 1999) (consecutive sentences of sixty-five and
thirty years for murder and conspiracy imposed upon a sixteen-year-old should be served
concurrently given defendants youth, sparse criminal history and role as a follower); Carter,
711 N.E.2d at 836, 843 (Ind. 1999) (reducing a fourteen-year-olds sixty-year sentence to
fifty years given the defendants youth); Walton v. State, 650 N.E.2d 1134, 1135-37
(Ind. 1995) (reducing a sixteen-year-old defendants 120-year sentence to two consecutive forty-year sentences
given his youth, mental illness, and lack of prior criminal history); Hill v.
State, 499 N.E.2d 1103, 1109-10 (Ind. 1986) (reducing an eighteen-year-olds fifty-year burglary sentence
to thirty-five years given defendants age, the crime committed, and lack of prior
Considering Monegans significant history of criminal conduct, the seriousness of the crime involved, and the sentence imposed, the refusal to give significant weight to Monegans age as a mitigating factor did not produce a sentence that is manifestly unreasonable.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.