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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marcel Katz Jeffrey A. Modisett
Law Offices of Marcel Katz Attorney General of Indiana
200 Ferry Street, Suite M
Post Office Box 1643 Kent D. Zepick
Lafayette, Indiana 47902 Deputy Attorney General
Office of the Attorney General
Indiana Government Center South
402 W. Washington Street, Fifth Floor
Indianapolis, Indiana 46204
INDIANA SUPREME COURT
JOSHUA P. SMITH, )
) Indiana Supreme Court
Appellant (Defendant Below ), ) Cause No. 79S00-9708-CR-429
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE TIPPECANOE COUNTY SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9412-CF-122
ON DIRECT APPEAL
June 4, 1998
This direct appeal concerns the re-sentencing of defendant Joshua Smith. In an earlier
direct appeal, this Court held that defendant was entitled to a new sentencing order because it was
unclear whether he had been properly sentenced. Smith v. State, 675 N.E.2d 693 (Ind. 1996).
Defendant raises three issues concerning his re-sentencing: 1) whether the trial court improperly
enhanced defendant's sentence; 2) whether the trial court impermissibly increased the sentence
after a successful appeal; and 3) whether the sentence should be amended because the plea
agreement upon which it rests contains an error. We answer each issue in the negative and affirm
the trial court.
A full statement of the facts is available in the original direct appeal. Smith, 675 N.E.2d at
694. The facts pertinent to this appeal are as follows. Defendant entered into a plea agreement
with the State. In exchange for pleading guilty to murder, it was agreed that the trial court would
sentence defendant to no more than fifty years executed. After a hearing, the trial court sentenced
defendant to sixty years, with fifty years executed, five years on supervised probation, five years
on unsupervised probation, and one year of the supervised probation on house arrest. On direct
appeal of the original sentence, this Court remanded for a new sentencing order because it was
unclear whether the trial court correctly used the forty year presumptive sentence for murder or
incorrectly used a fifty year presumptive sentence for murder. Smith, 675 N.E.2d at 697. After a
new hearing using the correct forty year presumptive sentence, the trial court again enhanced
defendant's sentence to sixty years, with fifty years executed, ten years on supervised probation,
and one year of the probation on house arrest.
Defendant first argues that the trial court improperly enhanced his sentence above the
presumptive sentence of forty years. Defendant contends that the trial court considered improper
aggravating factors in making the sentencing decision and failed to find and weigh mitigating
factors. Defendant also argues that the sentence is manifestly unreasonable considering the nature
of the offense and offender.
Sentencing decisions are left to the discretion of the trial court, and we will review
sentencing decisions only for an abuse of that discretion. Smith, 675 N.E.2d at 697. The trial
court may, within its discretion, increase or decrease a presumptive sentence based upon
aggravating and mitigating circumstances. Id. One valid aggravating factor is alone enough to
enhance a sentence. Id. "The trial court is not obligated to explain why it did not find a factor to
be significantly mitigating, nor must it weigh a mitigator the way defendant suggests the
mitigating factor should be weighed. However, the trial judge 'may not ignore facts in the record
that would mitigate an offense, and a failure to find mitigating circumstances that are clearly
supported by the record may imply that the trial court failed to properly consider them.'"
Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997) (citations omitted).
In its re-sentencing order, the trial court found and explained the following aggravating
factors: (1) the circumstances of the crime, (2) defendant's criminal history, and (3) victim impact
The trial court found and explained the following mitigating factors: (1) defendant's
youth and (2) the fact that defendant has "completed two substance abuse courses and one course
in anger management at the Indiana Department of Corrections; and further, defendant is
continuing to pursue his education through Grace College and Indiana University." (S.R. at 4.)
Finally, the trial court found that the aggravating factors outweighed the mitigating factors and
enhanced the presumptive sentence as described above.
The trial court did not abuse its discretion by enhancing defendant's sentence. In the
original direct appeal, this Court found that the circumstances of the crime and defendant's
criminal history are proper aggravating factors. Smith, 675 N.E.2d at 697. Properly explained
victim impact evidence is also a valid aggravating factor. See Davenport v. State, 689 N.E.2d
1226, 1232-33 (Ind. 1997). Thus, the court found three valid aggravators. As was true in the
original sentencing, it is also readily apparent that the trial court considered several mitigating
factors and identified two of them to be significant mitigating factors.See footnote
Finally, the court
determined that the aggravating factors outweighed the mitigating factors.
Defendant also argues that his sentence is manifestly unreasonable. Under Ind. Appellate
Rule 17(B), this Court may only revise a sentence authorized by statute if the sentence "is
manifestly unreasonable in light of the nature of the offense and the character of the offender."
Ind. Appellate Rule 17(B). As we held in the original direct appeal, defendant's sentence is not
Defendant next argues that the trial court improperly and vindictively increased his
sentence after a successful appeal. Originally, the trial court sentenced defendant in the following
manner: a term of sixty years, with fifty years executed, five years on supervised probation, five
years on unsupervised probation, and one year of the supervised probation on house arrest. On
re-sentencing, the trial court sentenced defendant in the following manner: a term of sixty years,
with fifty years executed, ten years on supervised probation, and one year of the supervised
probation on house arrest. Defendant argues that the change from five years each of supervised
and unsupervised probation to ten years of supervised probation constitutes an increase in
sentence and must be vacated on the presumption of vindictiveness.
We do not believe that the trial court committed any impropriety in changing the terms of
defendant's probation. Assuming, without deciding, that ten years of supervised probation is
"greater than" five years each of supervised and unsupervised probation, we do not agree with
defendant that the trial court's decision runs afoul of North Carolina v. Pearce, 395 U.S. 711, 89
S. Ct. 2072, 23 L. Ed. 2d 656 (1969). In Pearce, the United States Supreme Court held that a
trial court can increase a defendant's sentence at re-sentencing if evidence arose, subsequent to
the original sentencing, which supports the increase. Pearce, 395 U.S. at 723. To impose such an
increase, however, the "reasons for [the courts] doing so must affirmatively appear." Id. at 726.
The reasons must be part of the record and must "be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after the time of the original sentencing
proceeding." Id. In the present case, the trial court made note of the fact that defendant has
"received six to seven write-ups at the Indiana Department of Corrections which shows that he is
not complying with those who have authority over him." (S.R. at 5.) The granting of probation
is a matter of grace and is within the trial court's discretion. Gilfillen v. State, 582 N.E.2d 821,
824 (Ind. 1991). The trial court was within its discretion to change the terms of the probation
given its finding that defendant is having trouble obeying authority.
Defendant's final argument is that the trial court erred in not reforming the plea
agreement. The plea agreement stated that, "defendant will receive such sentence as the court
deems appropriate after hearing evidence and argument of counsel, except that no more than fifty
(50) years shall be ordered executed." (S.R. at 51.) Defendant contends that, until the original
sentencing hearing, he was unaware that there were two conflicting statutes concerning the
presumptive sentence for murder. When made aware that there were two conflicting statutes, one
with a forty year presumptive sentence and one with a fifty year presumptive sentence, defendant
argued that the forty year presumptive sentence should apply. On direct appeal, we agreed.
Smith, 675 N.E.2d at 696. Because it was unclear which presumptive sentence the trial court
used, we remanded for a new sentencing order. Id. Defendant now argues that the fifty year
maximum in the plea agreement rested upon the same confusion. In other words, defendant now
claims that he agreed in the plea bargain to have the presumptive sentence be the maximum
sentence, and since the presumptive sentence is forty years, the trial court should have reformed
the plea agreement so that the maximum executed sentence was forty years.See footnote
This issue was
available to defendant in his original direct appeal, but it went unargued. As such, the issue is
waived. See Harris v. State, 643 N.E.2d 309, 310 (Ind. 1994).
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, J.J., concur.
The court also found, as a "negative factor," that defendant has received "six to seven
write-ups at the Indiana Department of Corrections which shows that he is not complying with
those who have authority over him." (S.R. at 5.)
Defendant argues that the trial court failed to consider his guilty plea, his remorse, and
his kind and caring character as significant mitigating factors. A trial court need not find these to
be significant mitigating factors. See Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997).
Defendant's argument is that the State has waived the right to contest defendant's view
of the plea agreement. At the re-sentencing hearing, defendant argued that it was his belief the
parties had agreed that the maximum sentence would be the presumptive sentence. The
prosecutor offered no rebuttal to this argument. Defendant cites to Richardson v. State, 456
N.E.2d 1063 (Ind. Ct. App. 1983) and argues that, by not objecting to defendant's assertions
concerning the plea agreement, the State has waived the issue. Defendant's situation, however,
has one key difference from the Richardson case. In Richardson, there was no written agreement
and, after the defendant testified to his belief concerning what the parties had agreed, the State
remained mute. Richardson, 456 N.E.2d at 1065-66. In the present case, there is a written
agreement, signed by both parties, indicating the agreement's terms.
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