COURT OF APPEALS OF INDIANA
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JON AARSTAD STEPHEN R. CARTER
Evansville, Indiana Attorney General of Indiana
JOHN ANDREW GOODRICH ARTHUR THADDEUS PERRY
Evansville, Indiana Deputy Attorney General
VINCENT J. PROWELL, )
vs. ) No. 82A04-0204-CR-160
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Carl A. Heldt, Judge
Cause No. 82C01-9305-CF-00313
OPINION - FOR PUBLICATION
MAY 9, 2003
RATLIFF, Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Vincent J. Prowell (Prowell) appeals his conviction of two counts of murder.
Ind. Code § 35-50-2-3.
Prowell presents one issue for our review which we restate as two:
I. Whether the trial court erred in sentencing Prowell.
II. Whether Prowells sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
As our supreme court set forth in Prowells appeal of the denial of
his petition for post-conviction relief, the facts of this case are as follows:
In November 1992, twenty-eight-year-old Vincent Prowell moved from Chicago to Evansville to live
with his mother, Karen Johnson, and her boyfriend, Ed Cooper. Although Prowell
had never seen or been treated by a mental health professional, those who
spent time with him suspected that something was seriously wrong with Prowell.
A number of people heard Prowell engage in conversations with himself while alone
in his bedroom, talk to the television set when it was turned off,
respond to questions with odd or indirect answers, drift off on incomprehensible conversational
tangents, and appear fearful of and threatened by others.
In April 1993, Johnson and Cooper were arrested on drug charges, convicted, and
sentenced to prison terms. Prowell, who was unusually dependent on his mother
and had never before lived alone, moved into an apartment that Cooper had
rented for him. Prowells next door neighbor in the apartment complex was
On May 23, 1993, Powers sat in her automobile waiting for Fillbright.
As Fillbright approached the drivers side door, Prowell shot him at close range
in the back of the head. Prowell then shot Powers twice through
the car window, piercing her lung and heart. An eyewitness identified Prowell
as the shooter.
A few hours later, Prowell was apprehended by police in Benton County, Indiana
and confessed to both murders. Prowell also claimed that earlier that evening
he had run into Fillbright, whom he had never met before, near the
apartment complexs mailboxes. He told police that Fillbright had been hostile towards
him for no reason, acting all kinds of crazy towards Prowell, with a
military look in his eye, and slinging racial slurs and insinuation. In
his confession, Prowell told Police that he felt threatened by Fillbright and responded
by getting his gun from his apartment and confronting Fillbright in the parking
lot. Neighbor Joann Rose testified that Prowell approached Fillbright, shot him once
from behind without any exchange of words, and then pivoted around to shoot
twice through the passenger window.
Prowell v. State, 741 N.E.2d 704, 706-07 (Ind. 2001) (footnote and citation omitted).
DISCUSSION AND DECISION
Prowell pleaded guilty, without a plea agreement, to the murders of Powers and
Fillbright, and the trial court sentenced him to death. Prowell appealed, but
our supreme court affirmed the trial courts judgment and imposition of the death
sentence. Prowell then filed a petition for post-conviction relief which was denied
by the post-conviction court. Prowell appealed that decision, and our supreme court
reversed the judgment of the post-conviction court and ordered a new trial.
This time, Prowell entered a plea of guilty but mentally ill to two
counts of murder pursuant to a plea agreement that called for sentencing to
be argued to the trial court with a sentence cap of one hundred
years. The trial court sentenced Prowell to consecutive terms of fifty years
on each of the two counts for the maximum sentence under the plea
agreement. It is from this sentence that Prowell now appeals.
I. SENTENCING STATEMENT
Prowell contends that the trial court erred in determining his sentence. Specifically,
Prowell argues that the court did not identify all significant mitigating circumstances in
that the trial court failed to identify Prowells mental illness as a mitigating
factor. Further, Prowell claims the trial court failed to consider what mitigating
weight to assign to his mental illness and instead used the mental illness
as an aggravating circumstance to impose enhanced, consecutive sentences.
Sentencing is a determination within the sound discretion of the trial court, and
we will not reverse the trial courts decision absent an abuse of discretion.
Allen v. State, 722 N.E.2d 1246, 1250 (Ind. Ct. App. 2000).
If a trial court imposes a sentence based upon aggravating or mitigating circumstances,
it must include in the record a statement of its reasons for selecting
a particular sentence. Ind. Code § 35-38-1-3. The following elements must
be included in the courts sentencing statement: (1) all significant aggravating and
mitigating circumstances; (2) the reason why each circumstance is determined to be mitigating
or aggravating; and (3) a demonstration that the mitigating and aggravating circumstances have
been evaluated and balanced. Allen, 722 N.E.2d at 1250-51.
With respect to mitigating factors, it is within a trial courts discretion to
determine both the existence and the weight of a significant mitigating circumstance.
Id. at 1251. Given this discretion, only when there is substantial evidence
in the record of significant mitigating circumstances will we conclude that the sentencing
court has abused its discretion by overlooking a mitigating circumstance. Id.
Although the court must consider evidence of mitigating factors presented by a defendant,
it is neither required to find that any mitigating circumstances actually exist, nor
is it obligated to explain why it has found that certain circumstances are
not sufficiently mitigating. Id. at 1252. Additionally, the court is not
compelled to credit mitigating factors in the same manner as would the defendant.
Id. Moreover, when the court finds aggravating and mitigating circumstances and
performs the balancing process, the balancing test is generally qualitative and need not
be quantitative. Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997).
Thus, even where a sentencing court finds a mitigating circumstance such as a
mental illness exists, it generally need not assign a substantial positive or numerical
value to the circumstance. Id.
These fundamental principles of sentencing are not altered by the fact that Prowell
pleaded guilty but mentally ill. Indeed, our legislature has specifically stated that
a defendant who pleads guilty but mentally ill shall be sentenced in the
same manner as a defendant who is found guilty of the offense.
Ind. Code § 35-36-2-5(a). Thus, Prowell, and other defendants who plead or
are found guilty but mentally ill, are not automatically entitled to any particular
credit or deduction from his otherwise aggravated sentence because he is guilty but
mentally ill. Archer, 689 N.E.2d at 684. Nonetheless, our supreme court
has directed trial courts to, at a minimum, carefully consider on the record
what mitigating weight, if any, to allocate to any evidence of mental illness,
even though the court is not obligated to give the evidence the same
weight as does the defendant. Weeks v. State, 697 N.E.2d 28, 30
In addition, our supreme court has outlined four factors that a trial court
should consider in determining what weight, if any, to assign to a defendants
mental illness in sentencing. We pause here to note that the statutory
definition of mentally ill is: having a psychiatric disorder which substantially disturbs
a person's thinking, feeling, or behavior and impairs the person's ability to function
and includes having any mental retardation. Ind. Code § 35-36-1-1. Bearing
in mind this definition, we turn to the four criteria: (1) the
extent of the defendants inability to control his or her behavior due to
the disorder or impairment; (2) overall limitations on functioning; (3) the duration of
the mental illness; and (4) the extent of any nexus between the disorder
or impairment and the commission of the crime. Weeks, 697 N.E.2d at
30 (citing Archer, 689 N.E.2d at 685). Although to date these are
the only factors our supreme court has specifically delineated for consideration by the
trial courts, they are not exclusive. Smith v. State, 770 N.E.2d 818,
823 (Ind. 2002).
Applying these factors here, we find that the trial court did not err
in sentencing Prowell. The trial courts sentencing statement indicates the court reached
its conclusion with regard to Prowells sentence after considering the criteria outlined by
our supreme court. In its oral statement at the sentencing hearing, the
trial court explicitly found Prowells lack of criminal history as a mitigating circumstance.
The court also listed as aggravating circumstances the nature and circumstances of
the crime (i.e., execution style murders), the need for correctional treatment that can
best be provided by a penal facility for an extended period of time,
and the substantial risk that Prowell would commit another crime of this nature.
The court then considered Prowells mental illness as a mitigating factor by
considering the testimony of Dr. Bailey, a psychiatrist who examined Prowell for a
period of five hours. Dr. Bailey diagnosed Prowell with chronic paranoid schizophrenia
and testified that Prowell had a paranoid fear of being threatened although no
one may have done or said anything to him. (PCR Tr. 271
and 392; 296-97). Thus, Prowells disorder directly affects his ability to control
his behavior. For example, his perception of encounters with other people can
be so exaggerated that it might lead him to kill the other person,
as was the situation in this case. (PCR Tr. 297-99). Dr.
Bailey obviously believed that Prowells paranoid fear of being threatened caused him to
be unable to control his behavior because he further testified that he would
not recommend that [Prowell] be in society again, (PCR Tr. 356) and that:
I think it is very clear, and if I havent been clear, I
want to make it very clear, once a guy has shot people, I
dont think you can ever again say this is a guy who will
not shoot people. It is absolutely my testimony today that he needs
to be in a controlled environment for the rest of his life and
I hope I said that indirectly. If not, I will say it
directly. I dont think that a psychiatrist can say that any treatment
or any whatever, can ever get this guy to the point where you
can say, I feel comfortable that he would never shoot anybody again.
So, you have to argue that you are going to put him in
a controlled environment, like a prison setting, for life.
(PCR Tr. 381). II. INAPPROPRIATE SENTENCE
Not only is Prowell limited in how he functions and interacts with other
people, but also in his care of himself. Dr. Bailey testified that
Prowell is emotionally immature and was overly involved with his mother. For
instance, at age nineteen, Prowell was sleeping in the same bed as his
mother. (PCR Tr. 315-16). In addition, when Prowell was in his
late twenties, he could not take care of his own affairs, so his
mothers boyfriend helped him obtain an apartment, a car and furnishings for his
apartment. (PCR Tr. 317). Prowells level of functioning took a further
downward turn when his mother was arrested, and his personal hygiene began to
wane. (PCR Tr. 318).
Dr. Bailey further suggested that it would be very difficult for Prowell to
engage in any job that required him to make decisions, speak in public,
or finish tasks on a strict time schedule. (PCR Tr. 340).
He indicated that these types of things would cause Prowell too much stress
and would be too anxiety provoking for him. (PCR Tr. 340 and
348). Dr. Bailey also testified that the overly structured environment of prison
is the best setting for Prowell because the stress is removed. No
one depends on him to do anything, no one really expects anything of
him, and the prison officials tell him what to do and when to
do it. (PCR Tr. 347-48). In addition to the foregoing, Dr.
Bailey provided further evidence regarding the duration of Prowells illness, the third factor
set out by our supreme court. He testified that Prowells grandmother had
told his mother to get him help but that his mother continued to
refuse to acknowledge the problem. (PCR Tr. 334).
Finally, beyond the general information that Prowell felt threatened and misinterpreted situations
to the point of killing, there was specific evidence presented, via Dr. Baileys
testimony, regarding the nexus between Prowells disorder and the commission of the two
murders. Dr. Bailey stated that although people with mental illnesses can do
bad things aside from their mental illness, he believes that Prowells mental illness
contributed to his murder of these two people. (PCR Tr. 306 and
392). One indication of this is Prowells lack of criminal history.
Dr. Bailey indicated that generally criminal behavior is developed and does not just
pop up over night. (PCR Tr. 342).
In its sentencing statement, the trial court quoted from a portion of Dr.
Baileys testimony to support the aggravating circumstance of the likelihood that Prowell will
commit another crime and the consideration of the need for correctional treatment provided
by long-term commitment to a penal facility. Dr. Baileys testimony indicated that
he was very concerned that Prowell would commit murder again, and he stated
Prowell should not ever be in society again. (PCR Tr. 353-54 and
356). The courts sentencing statement indicates that the trial court considered Prowells
mental illness as a mitigating circumstance, but the psychiatrists testimony that Prowell should
never again be in society due to the likelihood that he would murder
again clearly outweighed any mitigating weight of Prowells illness.
Thus, with regard to Prowell's assertion that the sentencing court failed to find
that his mental illness was a mitigating circumstance, we disagree. The court's
oral statement at the sentencing hearing reveals the courts acceptance of Prowells pleas
of guilty but mentally ill, which requires the court to make a finding
that Prowell was guilty but mentally ill at the time of the offense.
Moreover, as we stated above, the court based its sentencing of Prowell
on the threat Prowell represents to society. The court weighed the circumstances
and found that the aggravators clearly outweighed the mitigators of mental illness and
lack of criminal history. Cf. Powell v. State, 751 N.E.2d 311 (Ind.
Ct. App. 2001) (trial court specifically rejected considering defendants mental illness evidence during
Although Prowell asserts that his sentence is manifestly unreasonable, we now review sentences
pursuant to the inappropriate standard.
See footnote Under Article VII, Section 6 of the
Indiana Constitution, we have the constitutional authority to review and revise sentences.
However, we will not do so unless the sentence imposed is inappropriate in
light of the nature of the offense and the character of the offender.
Ind. Appellate Rule 7(B).
The phrase nature of the offense refers to the presumptive sentence for the
class of crimes to which the offense belongs.
Williams v. State, 782
N.E.2d 1039, 1051 (Ind. Ct. App. 2003). The presumptive sentence is the
starting point for the Courts consideration of the appropriateness of the particular sentence.
Id. In this case, judgment was entered against Prowell on two
counts of murder which, in 1993, had a presumptive sentence of forty (40)
years to which twenty (20) years could be added for aggravating circumstances or
ten (10) years subtracted for mitigating circumstances. Ind. Code § 35-50-2-3 (West
Supp. 1992). Thus, Prowells sentence of fifty (50) years on each count
of murder, although the maximum total sentence allowed under his plea agreement, was
not the maximum lawful sentence allowed at the time for the crime of
murder. Thus, with regard to the nature of the offense, Prowells sentence
is not one that requires revision.
As for the character of the offender, the Court is guided by the
sentencing considerations in Ind. Code § 35-38-1-7.1 which contains general sentencing considerations, as
well as aggravating and mitigating factors to consider, and factors within the courts
discretion. Martin v. State, 784 N.E.2d 997, 1013 (Ind. Ct. App. 2003).
Under subsection (a), the trial court considers, among other things, the nature
and circumstances of the crime, the defendants criminal history, and the risk that
the person will commit another crime. Here, the murders were what the
trial court termed execution-style. In addition, although Prowell lacked a criminal history,
the trial court quoted Dr. Baileys testimony regarding the high risk that Prowell
would murder again and the fact that Prowell should never be in society
again. Under these facts and circumstances, we cannot conclude that Prowells one
hundred year sentence is inappropriate in light of the nature of the offense
and the character of the offender.
Based upon the foregoing discussion and authorities, we conclude that the trial court
not only considered Prowells mental illness in sentencing Prowell but also considered his
mental illness as a mitigating factor. However, the mitigating factors in this
case were far outweighed by the aggravating factors, and the trial court did
not err in sentencing Prowell. Additionally, Prowells sentence is not inappropriate in
light of the nature of the offense and the character of the offender.
KIRSCH, J., and DARDEN, J., concur.
On July 19, 2002, our supreme court amended Indiana Appellate Rule 7(B)
and provided that the amendment would be effective January 1, 2003. The
rule is directed to the reviewing court and sets forth the standard for
review that is in effect at the time the reviewing courts decision or
opinion is handed down. Therefore, although the sentence here was imposed prior
to January 1, 2003, we apply the new rule. The amended rule
provides: The Court may revise a sentence authorized by statute if, after
due consideration of the trial courts decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character
of the offender. Ind. Appellate Rule 7(B).