ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EARL McCOY STEVE CARTER
The Law Office of Patrick Harrington Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ALAN BUNCH, )
vs. ) No. 79A02-0105-PC-338
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald Johnson, Judge
Cause No. 79D01-9009-CF-116
January 16, 2002
OPINION - FOR PUBLICATION
Appellant-petitioner Alan Bunch (Bunch) appeals the post-conviction courts denial of his successive petition
for post-conviction relief (PCR). We affirm.
Bunch raises one issue, which we restate as the following two:
I. whether Bunch has waived the instant challenge to his sentence; and
II. whether the trial court considered improper aggravating factors when enhancing his sentence and
failed to find significant mitigators purportedly substantiated by the record.
Facts and Procedural History
On July, 27, 1990, Kim Hostetter (Hostetter) died at St. Elizabeth Hospital in
Lafayette, Indiana, from an overdose of cocaine that Bunch had given to her.
The State charged Bunch with a total of eight counts, and on
August 15, 1991, Bunch was found guilty of two counts of dealing in
See footnote both as Class A felonies, and four counts of dealing in cocaine,See footnote
all as Class B felonies. The trial courts sentencing order reads in
The Court finds no mitigating factors.
The Court finds the following aggravating factors: prior contact with the criminal
justice system starting back when defendant was a juvenile. December 12, 1979,
adjudicated a delinquent child as to Count I and II, involving a burglary;
predispositional hearing on February 26, 1980, defendant was placed on probation and sentenced
to ten (10) days in jail, suspended, attend school on a regular basis;
February 27, 1981 defendant was involved in two counts of battery; March 26,
1981 state filed motion for modification of judgment; predispositional hearing; May 19, 1981
defendant to abide by all previously ordered terms and conditions, including obtaining employment,
serving weekends until employment obtained; November 17, 1982 probation terminated. As an
adult, on April 2, 1982, defendant was convicted of minor in consumption; April
28, 1982 defendant received 30 days in jail, 6 months probation and a
fine; April 20, 1982 defendant charged again, minor consuming alcohol; May 17, 1982,
find, 6 months probation, attend New Directions; April 26, 1990 defendant charged with
Possession of Marijuana which is pending; December 6, 1990, charge of dealing in
marijuana in an amount of more than thirty grams which is pending.
Defendant has a history of criminal activity; defendant is in need of correctional
or rehabilitative treatment that can best be provided by commitment to a penal
facility; imposition of a reduced sentence or suspension of the sentence and imposition
of probation would depreciate the seriousness of the crime; defendant has been extensively
involved in this community in the sale a marijuana and cocaine; as a
circumstance surrounding this incident, the death of Kim Hosteter [
The court finds that the aggravating factors outweigh the mitigating factors.
On September 9, 1991, the trial court sentenced Bunch to fifty years for
each of the Class A felonies, with four years suspended, and twenty years
for each of the Class B felonies, all to run concurrently.
Discussion and Decision
In a memorandum decision, this court overturned on direct appeal one of Bunchs
Class A felony convictions; this reversal did not affect the duration of Bunchs
sentence. See Bunch v. State, No. 79A02-9112-CR-539 (Ind. Ct. App. June 18,
1992). On November 16, 1993, Bunch filed a petition for PCR, which
the trial court denied on October 5, 1994. We upheld this denial
in a memorandum decision. See Bunch v. State, No. 79A04-9501-PC-14 (Ind. Ct.
App. Dec. 14, 1995). In neither his direct appeal nor his first
PCR petition did Bunch raise any sentencing issues. On October 29, 1998,
we permitted Bunch to file a successive PCR petition challenging his sentence and
alleging ineffective assistance of counsel at trial, on direct appeal, and in his
first PCR petition.
See footnote The post-conviction court held a hearing on Bunchs petition
and denied it on April 30, 2001. Bunch now appeals from that
Bunch challenged his sentence in his successive PCR petition, and the State argues
in its brief that Bunch waived this issue by failing to raise it
in either his direct appeal or his first PCR petition. While it
is true that an issue available but not raised on direct appeal can
be waived in a subsequent PCR petition, waiver is an affirmative defense that
the State must present to a post-conviction court before that court can find
waiver. See State v. Eubanks, 729 N.E.2d 201, 205 (Ind. Ct. App.
2000) (citing Mickens v. State, 596 N.E.2d 1379, 1381 (Ind. 1992)), trans. denied.
The State asserted the affirmative defense of waiver in its answer to
Bunchs successive PCR petition, but we nevertheless conclude that it did not sufficiently
present the affirmative defense before the post-conviction court. In so concluding, we
find one fact to be dispositive: that the State failed to argue
waiver at the post-conviction hearing.
Our review of the seminal Indiana case on the topic, Langley v. State,
256 Ind. 199, 267 N.E.2d 538 (1971), convinces us that the key factor
in preserving waiver for appeal is that the issue be argued to the
post-conviction court. See id. at 207 n.2, 267 N.E.2d at 543 n.2
([I]t would seem that the state is precluded from asserting waiver on appeal
where they made no mention concerning it at the hearing on the same
basis that an appellant is normally denied the right to raise an issue
for the first time on appeal.) (emphasis added); see also id. at 205,
267 N.E.2d at 542 (It is therefore apparent that upon being properly raised,
the matter of waiver and the collateral issues necessarily involved should be of
initial concern at the P.C. hearing.) (emphasis added). The Langley court also
noted that the State argued the merits at the post-conviction hearing. See
id. at 207, 267 N.E.2d at 542-43 (Where, however, the state, as it
did in this case, chooses to meet a petitioners allegations on their merits
at the hearing, we must do likewise on appeal.).
This is not to say, however, that the State forfeits its waiver defense
by arguing the merits after the post-conviction court finds, as an initial matter,
that waiver does not apply. Cf. Mickens, 596 N.E.2d at 1381 (When
a post-conviction court does not find waiver and denies the petition on other
grounds, if the petitioner appeals the State can argue waiver in its appellees
brief without filing a cross-appeal on the issue.). Therefore, if the State
argues the affirmative defense of waiver at the post-conviction hearing, then the issue
is preserved for appeal even if the post-conviction court disposes of the petition
on other grounds. Here, because the State failed to argue the affirmative
defense of waiver at the post-conviction hearing, it cannot now raise waiver on
II. Aggravators and Mitigators
Bunch contends that all the aggravating circumstances the trial court considered in enhancing
his sentence were improper and that the trial court failed to find three
significant mitigators for which there was substantial evidence. Bunch bore the burden
of establishing the grounds for relief by a preponderance of the evidence in
the post-conviction court. See Ind. Post-Conviction Rule 1(5). The standard of
review for sentences is well settled:
Within the applicable statutory and constitutional parameters, sentencing decisions rest within the sound
discretion of the trial court and are reversed only for an abuse of
that discretion. The sentencing statement must identify the significant aggravating and mitigating
circumstances; identify the facts that led the trial court to find each circumstance;
and show that the aggravating and mitigating circumstances have been balanced.
Harrison v. State, 699 N.E.2d 645, 650 (Ind. 1998) (citations omitted). We
will address each aggravator and proposed mitigator in turn to determine if the
trial court abused its discretion by not acting within the applicable statutory parameters.
The trial court found as aggravators that Bunch was in need of correctional
or rehabilitative treatment that c[ould] best be provided by commitment to a penal
facility and that imposition of a reduced sentence or suspension of the sentence
and imposition of probation would depreciate the seriousness of the crime. Bunch
argues, and the State concedes, that the trial court improperly considered these aggravating
factors. We agree. Because the trial court merely recited the language
of Indiana Code Section 35-38-1-7.1(b)(3) and specified no reasons why Bunch needed extended
correctional and rehabilitative treatment, its consideration of the first factor was improper.
See Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996) (holding that trial
courts consideration of this factor was improper when [t]he trial court gave no
specific or individualized statement of the reason why this defendant was in need
of correctional and rehabilitative treatment that could best be provided by a period
of incarceration in a penal facility in excess of the presumptive sentence term.).
In addition, while a trial court may consider as an aggravating factor
the possibility that a reduced sentence might depreciate the seriousness of a crime[,]
this factor may be used only when considering the imposition of a
sentence of shorter duration than the presumptive sentence. Mitchem v. State, 685
N.E.2d 671, 679 (Ind. 1997) (citation omitted). There is no indication in
the record that the trial court ever considered giving Bunch less than the
presumptive sentence in this case, so its consideration of this factor was also
Bunch also contends that the trial court accorded too much weight to his
past criminal history because it consisted only of two adult convictions and two
contacts with the juvenile justice system, all events that had taken place more
that eight years prior to his sentencing. However, Bunchs history of criminal
or delinquent activity that the trial court considered under Indiana Code Section 35-38-1-7.1(b)(2)
was more extensive, ongoing, and recent than Bunch suggests. As a juvenile,
Bunch was adjudged a delinquent child after committing a burglary and was involved
in two counts of battery.
See footnote As an adult, he had two convictions
of minor consumption of alcohol, had a long history of drug dealing, and,
at the time of sentencing, had charges pending against him for dealing in
and possession of marijuana. In light of this record, we conclude that
the sentencing court did not abuse its discretion in finding Bunchs history of
criminal and delinquent activity to be an aggravating factor.
Bunch also contends that the sentencing court improperly considered his history of dealing
drugs because the evidence of that history was unreliable. The evidence introduced
at the sentencing hearing regarding this history consisted of the testimony of two
police officers who had interviewed many persons during their investigation of Bunch.
Even if this evidence would have been inadmissible hearsay at trial, it was
proper for the trial court to consider it at the sentencing hearing.
See Games v. State, 743 N.E.2d 1132, 1135-36 (Ind. 2001) ([A] trial court
may consider hearsay in a sentencing proceeding.). The trial court could have
properly considered Bunchs drug dealing as part of a history of criminal or
See footnote as evidence of his character,See footnote or as indicating a risk that
he would commit another crime.See footnote Even though the trial court did not
identify under which statutory provision it considered Bunchs history of drug dealing, trial
courts are not limited to consideration of only those factors specifically enumerated in
See Ind. Code § 35-38-1-7.1(d) (The criteria listed in subsections
(b) and (c) do not limit the matters that the court may consider
in determining the sentence.). Therefore, the trial courts consideration of Bunchs history
of drug dealing was proper.
Finally, Bunch contends that it was improper for the trial court to consider
Hostetters death as an aggravator (1) because a court cannot consider a material
element of a charged offense as an aggravator, and (2) because a court
cannot consider an acquittal as an aggravator. Bunch is correct that a
trial court may not use a factor constituting a material element of an
offense as an aggravating circumstance, Spears v. State, 735 N.E.2d 1161, 1167 (Ind.
2000), and that past acquittals may not be used to enhance the presumptive
sentence for a current conviction. Fugate v. State, 516 N.E.2d 75, 79
(Ind. Ct. App. 1987).
Bunch, however, mischaracterizes the trial courts consideration of Hostetters death: the record
clearly indicates that the trial court considered Hostetters death as a circumstance of
the crimes of which he was convicted. See Ind. Code § 35-38-1-7.1(a)(2)
(In determining what sentence to impose for a crime, the court shall consider
the nature and circumstances of the crime committed[.]). Addressing Hostetters death
at the sentencing hearing, the trial court said, although youre not guilty of
reckless homicide, the Court still finds that the surrounding circumstance is an aggravating
factor. We conclude that this statement is sufficient to indicate that the
trial court properly found Hostetters death to be an aggravating factor.
Bunch also contends that the trial court improperly failed to consider three significant
mitigators that he claims are supported by substantial evidence:
See footnote (1) that he
had led a law-abiding life for many years before committing the instant crimes,See footnote
(2) that he was likely to respond affirmatively to a short prison term,See footnote
and (3) that his character and attitudes indicated that he was unlikely to
commit another crime.See footnote We will conclude that the trial court has abused
its discretion in failing to find a mitigating circumstance only when the record
contains substantial evidence of significant mitigating circumstances.
See Allen v. State, 722
N.E.2d 1246, 1251 (Ind. Ct. App. 2000). Where a claim is highly
disputable in nature, weight, or significance, there is no error in failure to
find mitigation, nor is the court obligated to explain why a certain mitigating
factor does not exist. Id. at 1252 (citation omitted). A court
is not obligated to accept a defendants assertions as to what constitutes a
mitigating factor, nor is it required to give the same weight to the
mitigating evidence as the defendant does. See id.
The fact that eight years had elapsed since his last criminal conviction does
not necessarily mean that Bunch had been leading a law-abiding life. Two
police officers testified at his sentencing hearing that he had a long history
of dealing drugs, which also undercuts his contention that he was unlikely to
commit another crime. As for Bunchs contention that he was likely to
respond affirmatively to short-term imprisonment, we have only his fathers testimony at the
hearing that he had grown up since the commission of his crimes, and
that Bunchs friends had led him back into a life of crime.
Without more, these statements do not clearly indicate that Bunch was likely to
respond affirmatively to short-term imprisonment. Contrary to Bunchs contention, the trial court
did not abuse its discretion in failing to find Bunchs proposed mitigators.
In summary, although the sentencing court improperly considered two aggravators when it enhanced
Bunchs sentence, we conclude that it properly considered three aggravators and did not
err in failing to find Bunchs proffered mitigators. If a trial court
improperly applies an aggravator, but other valid aggravators exist, a sentence enhancement may
still be upheld; even one valid aggravator may be sufficient to support an
enhanced sentence. See Garrett v. State, 714 N.E.2d 618, 623 (Ind. 1999).
With three remaining valid aggravators, including the fact that Bunchs crimes resulted
in Hostetters death, the trial court did not abuse its discretion in enhancing
Bunchs sentence. Because the sentencing errors made by the trial court were
harmless, the post-conviction court did not err in denying Bunchs petition for PCR.
RILEY, J., and MATHIAS, J., concur.
Ind. Code § 35-48-4-1.
For the first time since his successive PCR petition, Bunch raises
the issue of ineffective assistance of counsel in his reply brief. Bunch
has waived this issue by not raising it in his appellate brief.
See Ross v. State, 429 N.E.2d 942, 945 (Ind. 1982) (By his reply
brief, Defendant seeks to present new theories of appeal. This is not
permissible. The purpose of the reply is to meet and avoid, if
possible, the argument presented by an appellees answer brief.). Waiver notwithstanding, we
conclude today that the trial courts sentencing errors were harmless and that Bunch
therefore suffered no prejudice. Consequently, his prior counsel was not ineffective in
failing to raise sentencing issues. See Young v. State, 746 N.E.2d 920,
926-27 (Ind. 2001) ([T]he defendant must show that counsels performance was deficient
[and] that the deficient performance prejudiced the defense.
The two prongs of
the Strickland test are separate and independent inquiries [and] [i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.) (quoting Strickland v. Washington, 466 U.S.
668, 697 (1984)) (final two alterations in original).
The record is unclear concerning Bunchs involve[ment] in two counts of
battery. Bunch did not include with his appendix the pre-sentence investigation report,
which might have provided more detail.
See Ind. Appellate Rule 50(B)(1)(d) (providing
that appellants appendix shall include copies of any other short excerpts from the
that are important to a consideration of the issues raised on
See Ind. Code § 35-38-1-7.1(b)(2).
See id. § 35-38-1-7.1(a)(3)(B).
See id. § 35-38-1-7.1(a)(1).
Because Bunch did not advance the second and third proposed mitigators
at his sentencing hearing, he cannot raise them for the first time in
See Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).
We are mindful, however, of the possibility of a future successive PCR petition
claiming ineffective assistance of counsel; in the interest of judicial economy, we address
these proposed mitigators on the merits, waiver notwithstanding.
See Ind. Code § 35-38-1-7.1(c)(6).
See id. § 35-38-1-7.1(c)(7).
See id. § 35-38-1-7.1(c)(8).