ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
E. THOMAS KEMP JEFFREY A. MODISETT
Richmond, Indiana Attorney General of Indiana
RANDI E. FROUG
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JASON A. ALLEN, )
vs. ) No. 89A01-9902-CR-56
STATE OF INDIANA, )
APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable Douglas VanMiddlesworth, Judge
Cause No. 89C01-9705-CF-49
January 19, 2000
OPINION - FOR PUBLICATION
Appellant-defendant Jason A. Allen (Allen) appeals from his three convictions for robbery, all
as Class B felonies. We affirm.
Allen raises one issue on appeal, which we restate as whether the trial
court abused its discretion in imposing consecutive sentences for his robbery convictions.
Facts and Procedural History
On May 17, 1997, Allen entered the lobby of a Ramada Inn in
Richmond, Indiana. Armed with a BB gun that appeared to be a
.357 revolver, Allen demanded money, warned an employee that he would put a
hole in his head if he pull[ed] anything funny, and left the hotel
with money from the cash drawer.
On May 18, 1997, Allen and a companion entered a Dominos Pizza store
in Richmond, Indiana. Allens companion wielded a handgun that appeared to be
a .357 revolver and demanded money. Allen grabbed money out of the
cash register, and both men left the store.
On May 23, 1997, Allen and a companion entered the lobby of a
Days Inn motel in Richmond, Indiana. The companion carried a .22 caliber
rifle and demanded money. Allen grabbed the money, and both men left
As a result of these and other incidents, Allen was charged with four
counts of robbery, all as Class B felonies, and one count of attempted
robbery as a Class B felony on May 29, 1997. On November
23, 1998, he plead guilty to three counts of robbery, and the State
dismissed the two remaining charges. On January 28, 1999, the trial court
sentenced Allen to six years each on two of the counts and eight
years on the third count (two years thereof to be served on probation),
with the sentences to be served consecutively.
Allen now appeals his sentence.
Discussion and Decision
Standard of Review
It is axiomatic that sentencing decisions are committed to the sound discretion of
the trial court, and we will reverse a sentence only upon a showing
of manifest abuse of discretion. Ault v. State, 705 N.E.2d 1078, 1081
(Ind. Ct. App. 1999). Recognizing that a certain degree of subjectivity cannot
be eliminated from the sentencing process, our supreme court has stated that it
is inappropriate to substitute the opinion of an appeals court regarding sentencing for
that of the trial court. Id. (quoting Hurt v. State, 657 N.E.2d
112, 114 (Ind. 1995)). We will not revise a sentence unless it
is manifestly unreasonable in light of the nature of the offense and the
character of the offender. Thacker v. State, 709 N.E.2d 3, 10 (Ind.
1999) (quoting Ind. Appellate Rule 17(B)).
[T]he issue is not whether in
our judgment the sentence is unreasonable, but whether it is clearly, plainly, and
obviously so. Thacker, 709 N.E.2d at 10 (quoting Brown v. State, 698
N.E.2d 779, 783-84 (Ind. 1998)).
In determining whether to impose consecutive sentences, the trial court may consider the
aggravating and mitigating circumstances set forth in
Ind. Code § 35-38-1-7.1(b) and Ind.
Code § 35-38-1-7.1(c). Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999)
(citing Ind. Code § 35-50-1-2(c)). The trial court is required to state
its reasons for imposing enhanced or consecutive sentences as follows: it must
(1) identify all significant aggravating and mitigating circumstances; (2) state the specific reason
why each circumstance is determined to be mitigating or aggravating; and, (3) articulate
the courts evaluation and balancing of the circumstances. Thacker, 709 N.E.2d at
9. In view of the sentencing issues presented in the instant case
and the frequency with which they recur on appeal, we present a more
detailed clarification of the requirements that trial courts must follow when imposing enhanced
or consecutive sentences.
Identification of significant aggravating and mitigating circumstances
As with most sentencing issues, the touchstone of our discussion is Ind. Code
§ 35-38-1-7.1. Subsection (a) of the statute lists six factors that a
trial court must consider in determining the appropriate sentence:
(1) the risk that the person will commit another crime;
(2) the nature and circumstances of the crime committed;
(3) the persons:
(A) prior criminal record;
(B) character; and
(4) whether the victim of the crime was less than twelve (12) years
of age or at least sixty-five (65) years of age;
(5) whether the person violated a protective order issued against the person
(6) any oral or written statement made by a victim of the crime. Subsection
(b) lists 13 factors that a trial court may consider as aggravating circumstances
or as supporting imposition of consecutive terms of imprisonment. Subsection (c), on
the other hand, enumerates 11 factors that a trial court may consider as
mitigating circumstances or as favoring suspension of the sentence and imposition of probation.
As explained in subsection (d), [t]he criteria listed in subsections (b) and
(c) do not limit the matters that the court may consider in determining
Although Ind. Code § 35-38-1-7.1 lists factors that may be
considered by the trial court as aggravating, those factors are not exclusive, and
the court has discretion to consider other relevant factors. See, e.g., Ballard
v. State, 531 N.E.2d 196, 197 (Ind. 1988). The trial court is
not required to specifically address and discuss each of the factors listed in
the statute. Jones v. State, 614 N.E.2d 936, 937 (Ind. 1993).
With respect to mitigating circumstances, it is within a trial courts discretion to
determine both the existence and the weight of a significant mitigating circumstance.
Jones v. State, 705 N.E.2d 452, 454 (Ind. 1999). Given this discretion,
we will conclude that the trial court overlooked a mitigating circumstance only when
there is substantial evidence in the record of significant mitigating circumstances. Id.
at 455. See Page v. State, 689 N.E.2d 707, 711 (Ind. 1997)
(when significant mitigating circumstances are supported by the record, they may reasonably give
rise to a belief that they were overlooked and hence not properly considered);
see also Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997) (better practice
for trial court to indicate rejection of any proffered mitigating circumstances to assure
reviewing court that they have not been overlooked).
A trial court must include mitigators in its sentencing statement only if they
are used to offset aggravators or to reduce the presumptive sentence, and only
those mitigators found to be
significant must be enumerated. Battles, 688 N.E.2d
at 1236 (emphasis in original). A trial court is not required to
find the presence of mitigating factors or to give the same weight or
credit to mitigating evidence as does the defendant, Fugate v. State, 608 N.E.2d
1370, 1374 (Ind. 1993), nor is it obligated to accept the defendants assertions
as to what constitutes a mitigating circumstance. Legue v. State, 688 N.E.2d
408, 411 (Ind. 1997); see also Smith v. State, 670 N.E.2d 7, 8
(Ind. 1996) (no error in failing to find mitigation when claim is highly
disputable in nature, weight, or significance) (citation omitted). Although a trial court
must consider evidence of mitigating factors presented by a defendant, Aguirre v. State,
552 N.E.2d 473, 476 (Ind. 1990), it is not obligated to explain why
it has found that the factor does not exist. Fugate, 608 N.E.2d
at 1374. See also Cooper v. State, 687 N.E.2d 350, 354-55 (Ind.
1997) (while trial court may not ignore mitigating facts in record, it need
not explain why it found a particular circumstance insufficiently mitigating).
On the topic of aggravating circumstances, we find our supreme courts opinion in
Tunstill v. State, 568 N.E.2d 539, 544 (Ind. 1991) to be instructive regarding
the consideration of a defendants history of criminal activity as an aggravator under
Ind. Code § 35-38-1-7.1(b)(2):
A record of arrest, without more, does not establish the historical fact that
the defendant committed a criminal offense on a previous occasion such that it
may be properly considered as evidence that the defendant has a history of
criminal activity. In order to enhance a criminal sentence based, in whole
or in part, on the defendants history of criminal activity, a sentencing court
must find instances of specific criminal conduct shown by probative evidence to be
attributable to the defendant. A bare record of arrest will not suffice
to meet this standard.¼ð
The historical fact that a defendant has committed a crime,
such that it may then be properly found to constitute the aggravator of
a criminal history, may be established upon evidence that the defendant has been
convicted of another crime, or upon evidence that the defendant committed another crime
which is properly admitted at trial under an exception to the general prohibition
against evidence of prior bad acts. Once a defendants guilt of the
other crime is established by conviction, admission, or properly admitted trial evidence, whether
or not he was ever placed under arrest is irrelevant. The substance
of the aggravator, history of criminal activity, is the fact that the defendant
committed the other crime, not that he was arrested for it.
(Citations omitted.) The
Tunstill court further stated that although a record of
arrests may not be considered as an aggravator under Ind. Code § 35-38-1-7.1(b)(2),
it may be properly considered as such under Ind. Code § 35-38-1-7.1(d), which
gives a sentencing court the flexibility to consider any factor which reflects on
the defendant s character, good or bad
¼ð. While a record of
arrests does not establish the historical fact of prior criminal behavior, such a
record does reveal to the court 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 and made aware of its oversight of
the activities of its citizens. This information is relevant to the courts
assessment of the defendants character and the risk that he will commit another
crime and is therefore properly considered by a court in determining sentence.
Id. at 545. Pending charges may be similarly considered as an aggravating
factor, being reflective of the defendants character and as indicative of the risk
that he will commit other crimes in the future. Id. We
note that there is no requirement that the defendants criminal history be necessarily
violent to support a trial courts finding of an aggravating circumstance to enhance
a sentence. Ellis v. State, 707 N.E.2d 797, 804 (Ind. 1999).
Statement of specific reasons for finding mitigating or aggravating circumstances
Sentence enhancement is a separate and discrete decision from the imposition of consecutive
Cleary v. State, 638 N.E.2d 431, 434 (Ind. Ct. App. 1994),
trans. denied. However, statutory provisions regarding sentence enhancement and consecutive sentencing are
not mutually exclusive. Thorne v. State, 687 N.E.2d 604, 605 (Ind. Ct.
App. 1997), trans. denied. For example, there is no prohibition against relying
on the same aggravating circumstances both to enhance a sentence and to order
it served consecutively, nor any requirement that the trial court identify the factors
that supported the sentence enhancement separately from the factors that supported consecutive sentences.
Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998). Indeed, a
single aggravating circumstance may be used both to enhance a sentence and to
impose consecutive sentences. Thacker, 709 N.E.2d at 10; see also Davidson v.
State, 558 N.E.2d 1077, 1092 (Ind. 1990); Thorne v. State, 687 N.E.2d 604,
606 (Ind. Ct. App. 1997), trans. denied; Hardebeck v. State, 656 N.E.2d 486,
491 (Ind. Ct. App. 1995); Ridenour v. State, 639 N.E.2d 288, 298 (Ind.
Ct. App. 1994); but see, e.g., Payne v. State, 687 N.E.2d 252, 255
(Ind. Ct. App. 1997).
As an additional consideration that merits special attention because of the frequency with
which it appears in sentencing cases, a trial court may find as an
aggravator that a lesser sentence would depreciate the seriousness of the crime only
when considering imposition of a sentence of shorter duration than the presumptive sentence,
not when enhancing a sentence. Robinson v. State, 693 N.E.2d 548, 554
(Ind. 1998). However, a reviewing court will affirm the trial courts use
of an improper aggravating factor to enhance a sentence if the other aggravators
are sufficient to support the sentence imposed. Id.
Next, the trial court is required to list the specific facts and reasons
that led to its finding of the existence of each mitigating and aggravating
circumstance. Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997); Ind. Code
There are two purposes for requiring the reasoned sentencing statement. One, it
safeguards against the imposition of arbitrary and capricious sentences because it ensures that
the sentencing judge only considered proper matters when imposing sentence. Two, the
statement allows a reviewing court to determine the reasonableness of the imposed sentence.
reviewing the sufficiency of a sentencing statement this court is not limited to
review of the written sentencing order but is required to look at the
entire record including the sentencing hearing. The record must demonstrate that the
trial court s determination was based upon consideration of the facts of the
crime, the aggravating and mitigating circumstances involved, and the relation of the sentence
imposed to the objectives which will be served by that sentence.
Hardebeck, 656 N.E.2d at 491-92 (citations omitted).
When a trial court determines that either an enhanced sentence or consecutive sentences
are warranted, the specificity with which it states its reasons for finding mitigating
or aggravating circumstances is especially critical for purposes of appellate review: [a]
perfunctory recitation of statutory factors does not provide adequate review of the appropriateness
of an enhanced sentence.
Battles, 688 N.E.2d at 1236 (citation omitted).
The individualized statement need not be exhaustive, but must be sufficient to warrant
the conclusion on appeal that the sentence is reasonable. Erby v. State,
511 N.E.2d 302, 304 (Ind. 1987).
The trial court is not obligated
to state its reasons for imposing the presumptive sentence for a conviction, Hardebeck,
656 N.E.2d at 491, nor must it state its reasons for imposing sentence
pursuant to a plea agreement, Silvers v. State, 499 N.E.2d 249, 253 (Ind.
1986), but it must specify its reasons for imposing consecutive sentences whether the
sentence is mandatory or discretionary. Ray v. State, 585 N.E.2d 36, 37
(Ind. Ct. App. 1992).
Evaluation and balancing of mitigating and aggravating circumstances
Finally, when the trial court performs the required balancing process, the balancing test
need not be quantitative, and is generally qualitative. Archer, 689 N.E.2d at
684. See also Ault, 705 N.E.2d at 1081 (certain degree of subjectivity
cannot be eliminated from sentencing process). When the trial court properly identifies
and articulates all significant aggravating and mitigating circumstances, this requires that the trial
court merely indicate that the aggravating circumstances outweigh the mitigating circumstances. Carter
v. State, 711 N.E.2d 835, 840 (Ind. 1999).
To conclude our summary of sentencing considerations, we turn to Judge Barteaus thoughtful
and eminently sensible remarks on the subject in
May v. State, 578 N.E.2d
716, 724 (Ind. Ct. App. 1991):
A trial judge who chooses to deviate from a presumptive sentence owes a
duty to the legislature, the appellate court, the public, and the defendant to
explain such a decision. Thoughtful sentencing statements should be made not only
Ind. Code §] 35-38-1-3 requires them, but also because they are a
desirable feature of our criminal justice system: they facilitate appellate review of
the trial courts exercise of discretion in sentencing, they promote to the public
a sense that our courts dispense even-handed justice, and they forestall acrimonious complaints
by defendants of arbitrary sentencing. In addition, thorough statements may contribute to
judicial economy by reducing the number of criminal appeals on the issue.
It seems reasonably less time consuming for the trial judge to make a
proper statement at the time of sentencing than for the appellate court to
issue an opinion evaluating the adequacy of the challenged statement. Moreover, trial
judges can avoid the burden of remand for a more detailed statement by
making such a statement in the first place.
We hope that members of the bench and bar will continue to be
mindful of these important sentiments as they address the intricate and fact-sensitive issues
that inevitably arise during the sentencing process.* * *
During Allens sentencing hearing, the trial court outlined its rationale for imposing consecutive
sentences as follows:
The defendant, in fact, is at risk of a maximum, cumulative sentence of
sixty years in this cause. He could get twenty years for each
sentence, and those to run consecutively. There are a number of ways
that the Court could arrive at practically any number, by either consecutizing [
sentences or imposing various terms of years for the three different offenses.
But by so doing, the range of sentences would be from six to
sixty years. I have concluded that what Im about to indicate is
the appropriate term of years and there are various ways I couldve imposed
that cumulative term of years. Ive chosen the particular manner Im going
to indicate here shortly. Ive considered the factors set out in Indiana
Code 35-38-1-7.1. Ive considered the mitigators that youve advanced, Mr. Jones, the
-- his youth, eighteen years, his GED, remorse, guilty pleas, mental health, drug
use. Ive considered the following aggravat[o]rs, the history of delinquent activity culminating
at one point with a commitment to the Indiana Boys School, a history
that involved somewhere near fourteen different arrests. Ive considered his -- the
facts and circumstances of the offenses wherein he was a very active participant,
not simply an aider or abettor. Ive considered that, based on the
juvenile history, most children when arrested would take a message from that and
that would probably be enough to scare most children straight. This defendant
has been arrested time after time after time. In 1993, in 1994,
in 1995, 1996, 1997, right up until he turned eighteen and then he
was eighteen for about a month when he engaged in a series of
armed robberies. I am convinced that the defendant is in need of
a long term correctional or rehabilitative treatment that can best be provided by
a significant commitment to a penal facility. Also the multiplicity, that there
were three separate armed robberies is an aggravt[o]r, and also indicates the need
for correctional or rehabilitative treatment.
Allen raises several claims of error, arguing that the trial courts imposition of
consecutive sentences is inappropriate and that his sentences should run concurrently. We
address each claim in turn.
I. History of Delinquent Activity
Citing Davenport v. State, 689 N.E.2d 1226, 1232 (Ind. 1997), rehearing granted in
part on other grounds, 696 N.E.2d 870 (Ind. 1998), Allen correctly observes that
[a] defendants juvenile record may be treated as an aggravating circumstance if the
trial court is presented with specifics as to juvenile criminal activity and those
specifics support evidence of a history of criminal activity. (Emphases supplied.)
See also Ind. Code § 35-38-1-7.1(b)(2) (trial court may consider defendants history of
criminal or delinquent activity as an aggravating circumstance or as favoring imposing consecutive
terms of imprisonment). Allen argues that the trial court was presented with
no details involved in any of [his] arrests or the juvenile disposition and
that its finding of an aggravating circumstance is therefore unsupported and unfounded.
Allens juvenile criminal record reflects that he was arrested approximately 15 times between
1993 and 1997, but was adjudicated a delinquent only once, in May 1995,
resulting in his commitment to Indiana Boys School.
Day v. State, our supreme court noted that even when a juvenile
court has made a determination of delinquency, only the acts committed by the
juvenile may constitute a criminal history to support enhancement of a sentence.
560 N.E.2d 641, 643 (Ind. 1990) (initial emphasis in original). Although Allens
juvenile report identifies the specific offense(s) for each of his numerous arrests, including
battery, burglary, and robbery, the report neither enumerates the specific facts surrounding each
arrest nor provides any details regarding his adjudication. In fact, upon reviewing
Allens juvenile criminal report, it is impossible to determine the exact offense or
offenses for which he was adjudicated a delinquent in May 1995. Therefore,
we conclude that the trial court improperly relied on Allens juvenile criminal history
in imposing consecutive sentences under Ind. Code § 35-38-1-7.1(b)(2).
II. Enhancement Based on Statutory Elements of Crime
Allen also claims that the trial court erred in considering Allens more active,
aggressive and serious [role] than the peripheral participation of his confederates
robberies as an aggravating circumstance. He argues that [w]hat is lacking from
this description is what conduct on [his part], above and beyond the elements
of the offenses committed, the court found to be active, aggressive and serious.
We note that [w]hile a material element of a crime may not
also constitute an aggravating circumstance to support
an enhanced sentence, the court may look to the particularized circumstances of the
Ellis, 707 N.E.2d at 804-05; see also Ind. Code §
35-38-1-7.1(a)(2) (court shall consider nature and circumstances of the crime committed in determining
sentence). To enhance a sentence in this manner, the trial court must
specify why the Defendant deserves an enhanced sentence under the particular circumstances.
Ellis, 707 N.E.2d at 805 (emphasis supplied).
Ind. Code § 35-42-5-1 reads in relevant part,
A person who knowingly or intentionally takes property from another person or from
the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class
B felony if it is committed while armed with a deadly weapon or
results in bodily injury to any person other than a defendant
the facts adduced at his guilty plea and sentencing hearings, we agree with
Allen that the trial court failed to articulate sufficient facts to support its
finding that his role in the robberies justified consecutive sentences. Indeed, Allen
brandished a handgun during the course of only one of the three armed
robberies, and although his threats to the Ramada Inn employee may certainly be
construed as menacing, we cannot conclude that his role was sufficiently aggressive and
serious beyond the material elements of the crime to warrant the imposition of
III. Need for Rehabilitative Treatment by Extended Commitment to Penal Facility
Ind. Code § 35-38-1-7.1(b)(3) permits a trial court to impose consecutive terms of
imprisonment if it determines that [t]he person is in need of correctional or
rehabilitative treatment that can best be provided by commitment of the person to
a penal facility. Allen claims that [t]he trial court did little else,
outside of inappropriately referring to [his] unsubstantiated juvenile record, to justify its finding
that this aggravating circumstance exists. In Adkins v. State, 703 N.E.2d 182,
187-88 (Ind. Ct. App. 1998), we offered the following guidance regarding the trial
courts duties with respect to this particular sentencing factor:
When relying on this particular aggravator to support an enhanced sentence, the trial
court must provide a specific statement of
why the particular defendant needs corrective
or rehabilitative treatment that could best be provided by a penal facility --
for a period of time in excess of the presumptive sentence. ¼ð
of authority clearly mandates that if a sentencing judge chooses to rely upon
the aggravator, need for rehabilitative treatment in a penal facility in
order to enhance the presumptive sentence, he
must do more than recite the
statutory language during the sentencing hearing. He must specifically state why this
defendant, given the facts and circumstances in this case, needs such treatment in
such a facility for longer than the presumptive sentence would allow. For
this aggravating circumstance to justify in part an enhanced sentence, it must be
understood to mean that the defendant is in need of correctional and rehabilitative
treatment that can best be provided by a period of incarceration in a
penal facility in excess of the presumptive sentence term.
(Citations omitted, second emphasis in original.)
We have already determined that the trial court improperly relied on Allens juvenile
criminal history as an aggravating factor. The trial courts oral and written
sentencing statements, however, indicate that Allens commission of three armed robberies also demonstrated
his need for correctional or rehabilitative treatment.
In May v. State, 502
N.E.2d 96, 100 (Ind. 1986), our supreme court held that the trial court
did not err in finding the defendants five separate robberies of five separate
victims to be a valid aggravating factor. Although the trial court cited
Allens commission of multiple crimes in conjunction with his juvenile record as evidence
of his need for prolonged incarceration under Ind. Code § 35-38-1-7.1(b)(3), we conclude
that the former consideration alone may justify the imposition of consecutive sentences for
Footnote: e. To conclude otherwise would be to substitute our judgment for
that of the trial court, which is far better situated to assess the
nature of the offenses, the character of the offender, and the offenders need
for long-term treatment in a penal facility.
See App. R. 17(B); Ault,
705 N.E.2d at 1081. In less than one week, Allen and his
compatriots successfully committed thre
armed robberies at three different establishments in Richmond, Indiana.
Consequently, we cannot say that the trial court abused its discretion by
imposing consecutive sentences.
IV. Failure to Give Sufficient Weight to Mitigating Circumstances
Finally, Allen asserts that the trial cour
does not discuss the mitigating circumstances
it found in this case and that it provided no articulation of its
analysis in balancing the relevant mitigating and aggravating circumstances. The trial court
is not required to give the same weight to proffered mitiga
ing circumstances as
[the] defendant does. Thacker, 709 N.E.2d at 10. Moreover, when the
record indicates that the trial court engaged in the evaluative processes but simply
did not sufficiently articulate the reasons for the sentence imposed, then the reasons
underlying the sentencing statement requirement have been fulfilled and there is no need
for the reviewing court to remand for a more specific sente
Becker v. State, 695 N.E.2d 968, 974 (Ind. Ct. App. 1998); see also
Carter, 711 N.E.2d at 840 (when trial court properly identifies and arti
significant aggravating and mitigating circumstances, it must merely indicate that aggravating circumstances outweigh
mitigating circumstances). Despite its generalized description of the significant mitigating factors in
this case, the record clearly reflects that the trial court sufficiently evaluated and
balanced them against the aggravating circumstances.
The judgment of the trial court is affirmed.
GARRARD and BAILEY, JJ., concur.
We remind Allens counsel that [t]he summary of facts required by
[Ind. Appellate Rule] 8.3(A)(5) is not intended to be a portion of the
appellant s argument. It should be a concise narrative summary of the
facts in a light most favorable to the judgment.¼ð It is to
be informative, not persuasive. Moore v. State, 426 N.E.2d 86, 90
(Ind. Ct. App. 1981) (emphases supplied).
Ind. Code § 35-50-2-5 reads in relevant part, A person who
commits a Class B felony shall be imprisoned for a fixed term of
ten (10) years, with not more than ten (10) years added for aggravating
circumstances or not more than four (4) years subtracted for mitigating circumstances[.]
Allens reliance on Morgan v. State, 675 N.E.2d 1067, 1073 (Ind.
1996) as an authority for our standard of review with respect to evaluating
sentences under App. R. 17(B) is misplaced; the reasonable person language was removed
from the rule effective March 1, 1997.
Sherwood v. State, 702 N.E.2d 694, 700 (Ind. 1998) (remorse
as mitigator); Madden v. State, 697 N.E.2d 964, 969 (Ind. Ct. App. 1998),
trans. denied (guilty plea as mitigator); Campbell v. State, 551 N.E.2d 1164, 1168
(Ind. Ct. App. 1990) (violation of position of trust and confidence in local
community as aggravator); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989) (lack
of remorse as aggravator).
We address this particular statutory
aggravator to complement our discussion of Allens
history of delinquent activity under Ind. Code § 35-38-1-7.1(b)(2).
In Payne, a pa
el of this Court held that ordinarily, a
single aggravating factor should not be used to impose an enhanced sentence and
consecutive sentences unless the factor is particularly egregious. 687 N.E.2d at 255
(quoting Staton v. State, 640 N.E.2d 741, 743 (Ind. Ct. App. 1994), trans.
denied). However, our research reveals that the supreme court has not imposed
such a qualification on the use of a single aggravating factor to impose
both enhanced and consecutive sentences. See, e.g., Isaacs v. State, 673 N.E.2d
757, 765 (Ind. 1996) (referring to Davidson). Although the cases cited by
both Thacker and Davidson mention aggravating circumstan
es in the plural, we (as did
the Thorne court) find Judge Ratliffs dissenting reasoning in Staton to be persuasive:
Indeed, if the same [aggravating] factors can support both, and a single
factor will support either, there is no logical reason why that same single
aggravating factor cannot support both. 640 N.E.2d at 743. In Thorne,
Judge Najam noted that cases referring to aggravating factors in the plural did
so simply because the trial court had, in fact, articulated multiple aggravators in
its sentencing order, and that they did not intend to distinguish between sentences
which rely on a single factor and those that rely on multiple factors
to support an enhanced sentence and to impose consecutive sentences. 687 N.E.2d
at 606. Nevertheless, absent any contrary indications from our supreme court, we
may safely observe that a trial courts use of a single aggravating factor
to impose both enhanced and consecutive sentences will not be summarily condemned on
By contrast, our supreme court has stated that in death penalty
cases, courts must ¼ð limit the aggravating circumstances eligible for consideration to those
specified in the death penalty statute [Ind. Code § 35-50-2-9].
Minnick v. State, 698 N.E.2d 745, 758 (Ind. 1998), cert. denied, ___ U.S.
_ S.Ct. ___ (1999) (quoting Bivins v. State, 642 N.E.2d 928, 955
(Ind. 1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783 (1996)).
[T]he primary consideration of the trial court during sentencing is rehabilitation
of the defendant. Hardebeck, 656 N.E.2d at 490.
If the trial courts explanation for imposing an enhanced sentence or
consecutive sentences appears inadequate, the appellate court may order an enhanced sentence reduced
to the presumptive, or change consecutive sentences to concurrent, or remand for a
more detailed statement, or examine the record for indications that the trial court
engaged in the required evaluative process. May v. State, 578 N.E.2d 716,
723 (Ind. Ct. App. 1996). When a cause is remanded for a
more detailed statement, the court need only specify its reasons and is not
required to hold a new sentencing
hearing. See Warthan v. State, 443 N.E.2d
1191, 1192 (Ind. 1983).
See, e.g., Ind. Cod
§ 35-50-1-2(c), which reads in relevant part
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 [listed in subsection (a) of this statute, such as murder,
kidnapping, and rape], the total of the consecutive terms of imprisonment, exclusive of
terms of imprisonment under [
Ind. Code §] 35-50-2-8 and [Ind. Code §] 35-50-2-10