ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ALAN K. WILSON STEVE CARTER
Muncie, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MICHAEL HILL, )
vs. ) No. 18A05-0010-CR-411
STATE OF INDIANA, )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Richard A. Dailey, Judge
Cause No. 18D02-9206-CF-52
June 12, 2001
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Michael Hill (Hill), appeals the sentence imposed on him by the trial
We affirm in part and remand in part.
On appeal Hill raises issues of whether the trial court improperly interpreted the
law concerning suspended sentences when imposing an enhanced sentence and whether the trial
court considered inappropriate aggravating circumstances.
FACTS AND PROCEDURAL HISTORY
On April 22, 1992, Hill submitted a check to a store called Ross
Corner, located in Muncie, Indiana, and asked that it be cashed. The
check was drawn on Heritage Hall Christian School and it was in the
amount of $387.41. Hill had no authority to be in possession of
On June 9, 1992, the State filed an information alleging that Hill committed
forgery, a Class C felony, Ind. Code § 35-43-5-2(1). On August 4,
2000, the State filed an additional count alleging that Hill received stolen property,
a Class D felony, Ind. Code § 35-43-4-2(b).
As a result of his April 22, 1992 actions, on August 10, 2000,
Hill entered a guilty plea for receiving stolen property.
On September 25,
2000, a sentencing hearing was held. At the sentencing hearing, the trial
court held as follows:
In considering any sentence to be imposed, the Court needs to consider the
risk that the defendant would commit another crime, whether thats of a high
or a middle or low risk. [I]t would appear to the Court
that indeed there is a high risk that the, high probability that the
defendant will commit another offense. And, we, predict the future on the
basis of the past. Theres a past record. And, since hes
been an adult at least since 1991, we have several significant violations, operating
a vehicle while intoxicated, failure to pay for traffic violation, indefinite license suspension,
failure to pay traffic violation, seat belt violation. And, then in 92,
forgery, attempted forgery, pled guilty to attempted theft. [T]hen you have again
in 92 in June, forgery, receiving stolen property, and that is this cause.
And, then about a week, within a week from this particular offense,
you have a forgery in Madison County, received a four year sentence there,
with two suspended. And, then he was apprehended basically with regard to
this charge, after he was arrested in New York. We have this
criminal possession of controlled substance. [A]nd, on the basis of the defendants
attitude toward hes [sic] past, I do these things which take a great
deal of forethought and planning and skill, that is I, I, create the
false commercial paper, the checks. I see that they are printed.
I see that they are drawn on religion [sic] institutions. The theory
being that if its drawn upon a religious institution most likely will be
cashed by the person you intend to defraud. And, hes had some
success in that regard at least in this county. [C]onsequently, this is
a crime against public confidence in commercial paper. If everybody did that or
if people did it to a substantial degree, you would in essence, achieve
the, the end of commercial paper and the use of commercial paper in
the society. And, obviously, our commerce can not [sic] function without it.
So, it is a crime against public confidence in commercial paper.
There is a high probability that hell commit another offense. He is
talented in that particular direction, as far as being able to create the
paper that he needs. [H]e has no remorse, particularly for the offense
that the Court notes. [I]mposition of a reduced sentence given the circumstances
of this particular case, the thoughtfulness that had to go into his planning
and the particular institutions that are utilized in his method of defrauding the
public. [H]e is certainly in need of correctional or rehabilitative treatment that
is best provided within the secure confines of a penal facility. [H]e
always finds a reason for doing something wrong. And, that is ultimately,
he always finds an excuse for acting why he did, whether his excuse
be revenge or whether it be the fact that a family member is
ill. [T]here is always a ready excuse. And, in essence, the
Court doesnt accept or believe them. [A]ccordingly, the Court does follow the
recommendations of the Probation Officer. The defendant is sentenced to the Indiana
Department of Corrections [sic] for three years. He is to be given
credit for time served. And, the Court believes that to be two
hundred and fifty six (256) days, through today. Now, thats the determination
of the Court at this particular time. Now, he is assessed a
hundred and twenty five ($125.00) dollars Court costs and he is to pay
restitution to his victim
Additionally, on September 25, 2000, the trial court entered its written Sentencing Order.
In pertinent part, the Order stated as follows:
1) The following mitigating circumstances exist:-
(A) The defendant stated he is willing to make restitution to the victim
in this cause.
2) The following aggravating circumstances exist:-
DISCUSSION AND DECISION
(A) The defendant has a history of criminal behavior.
(B) Imposition of a reduced or suspended sentence would depreciate the seriousness of
(C) The defendant is in need of correctional or rehabilitative treatment that is
best provided by a penal facility.
(D) There is a high probability that the defendant will commit another offense.
(E) The victim has requested the defendant receive the maximum sentence.
Hill now appeals.
Hill argues that the trial court improperly concluded that it had to impose,
at least, a minimum executed sentence upon him and improperly considered three aggravating
circumstances when sentencing him.
Standard of Review
In Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992), our supreme court
held the following:
Our standard of reviewing a sentence is well established. Sentencing is conducted
within the discretion of the trial court and will be reversed only upon
a showing of a manifest abuse of that discretion. It is within
the discretion of the trial court to determine whether a presumptive sentence will
be increased or decreased because of aggravating or mitigating circumstances. A sentence
authorized by statute will not be revised except where the sentence is manifestly
unreasonable. A sentence is not manifestly unreasonable unless no reasonable person could
find such sentence appropriate to the particular offense and offender for which such
sentence was imposed. When a sentencing court enhances a presumptive sentence, the
record "must demonstrate that the determination was based upon the consideration of the
facts of the specific crime, the aggravating and mitigating circumstances involved, and the
relation of the sentence imposed to the objectives which will be served by
that sentence." The trial court's statement must identify all significant mitigating and
aggravating circumstances, include a specific reason why each circumstance is mitigating or aggravating,
and weigh mitigating circumstances against the aggravating factors.
Id. (citations omitted).
First, Hill argues that the trial court improperly concluded that it had to
impose, at least, a minimum executed sentence upon him. During the August
10, 2000 guilty plea hearing, the judge, prosecutor, and defense counsel discussed the
effect of a prior unrelated Class C felony conviction imposed upon Hill.
The prior unrelated felony occurred in March 1992. Hill was not arrested
for the offense until March 1998, and he was not sentenced until April
1999. This offense apparently occurred only a few weeks before Hill committed
the present offense on April 22, 1992. With this in mind, the
trial court concluded as follows:
Okay. [I]f this offense were committed prior to the other one, I
think that I would, I would be, I couldnt utilize the enhancement and
be, my authority to suspend sentence would not be limited would be the
best way to put it. [T]his occurring afterward my authority to suspend
your sentence in all likelihood is limited.
It is Hills position that the trial court erred in reaching this conclusion.
Hill argues that the trial court improperly interpreted Ind. Code § 35-50-2-2(b)(3),
in determining that its authority to suspend his sentence would most likely be
limited. We agree.
Ind. Code § 35-50-2-2(b)(3) provides:
(b) With respect to the following crimes listed in this subsection, the court
may suspend only that part of the sentence that is in excess of
the minimum sentence:
* * *
(3) The crime committed was a Class D felony and less than three
(3) years have elapsed between the date the person was discharged from probation,
imprisonment, or parole, whichever is later, for a prior unrelated felony conviction and
the date the person committed the Class D felony for which the person
is being sentenced. However, the court may suspend the minimum sentence for
the crime only if the court orders home detention under IC 35-38-1-21 or
IC 35-38-2.5-5 instead of the minimum sentence specified for the crime under this
As previously stated, prior to the instant offense, Hill committed a Class C
felony in March 1992. He was arrested for this crime in 1998
and sentenced for this crime in 1999. Thus, Hill was not
from probation, imprisonment, or parole for the prior unrelated felony at the time
the instant offense occurred. See Ind. Code § 35-50-2-2(b)(3).
Ind. Code § 35-50-2-2(b)(3) envisions a prior unrelated felony being committed, the defendant
being charged and convicted for the prior unrelated felony, the defendant being completely
discharged from probation, imprisonment, or parole for the prior unrelated felony, and then
the defendant commits a Class D felony within three years of complete discharge
of the prior unrelated felony. Hill was not even arrested on the
prior unrelated felony until March 1998. Therefore, it is impossible to find
that he was discharged from the prior unrelated felony for less than three
years before the Class D felony was committed. Accordingly, we find that
the trial court improperly concluded that at least half of Hills sentence was
not suspendable. When a trial court errs with reference to whether a
sentence is or is not suspendable, the case must be remanded for resentencing.
See Henning v. State, 477 N.E.2d 547, 552-553 (Ind. 1985).
Next, Hill claims that the [i]mposition of a reduced or suspended sentence would
depreciate the seriousness of the offense, (R. 73), cannot be used as a
basis for enhancing a sentence. We agree.
In Gregory-Bey v. State, 669 N.E.2d 154, 159 (Ind. 1996), our supreme court
the Indiana Code also allows a trial court to consider as an aggravator
the possibility that a reduced sentence might depreciate the seriousness of a crime.
This factor cannot be used, however, as the basis for a sentence
enhancement; it "may be used only when considering the imposition of a
sentence of shorter duration than the presumptive sentence."
Id. (citations omitted).
As both Hill and the State agree, it does not appear that the
trial court was considering a sentence shorter than the presumptive in this case.
Therefore, we find the trial courts use of this aggravator to be
improper. However, we should note that when a trial court improperly applies
an aggravating circumstance, a sentence enhancement may still be upheld if other valid
aggravating circumstances exist.
Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999).
In his third argument, Hill maintains that the trial court failed to provide
a statement as to why it believed he needed a period of rehabilitative
incarceration in excess of the presumptive sentence. In support of his argument,
Hill cites to
Hollins v. State, 679 N.E.2d 1305, 1308 (Ind. 1997), in
which our supreme court held that a trial court must provide a 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.
We find that the trial court provided a specific or individualized statement of
reason when it held:
[H]e is certainly in need of correctional or rehabilitative treatment that is best
provided within the secure confines of a penal facility. [H]e always finds
a reason for doing something wrong. And, that is ultimately, he always
finds an excuse for acting why he did, whether his excuse be revenge
or whether it be the fact that a family member is ill.
[T]here is always a ready excuse. And, in essence, the Court doesnt
accept or believe them.
(R. 127). Consequently, we find that the trial courts use of this
aggravating factor was appropriate.
Finally, Hill contends that the trial court improperly used, as an aggravating factor,
the victims request that he receive the maximum sentence. (R. 73).
Hill asserts that this aggravator is not factually supported by the record, since
the victim requested that he receive a severe penalty for his actions.
(R. 19). Though the word severe is different from the word maximum,
we believe that it can be inferred that the victim wanted Hill to
be punished harshly for his crime. Thus, we find that the record
does support the trial courts finding that the victim wanted the maximum sentence
imposed upon Hill.
Hill additionally maintains that this aggravator is inappropriate because a victims recommendation is
neither a mitigator nor an aggravator. While it is true that recommendations
of this sort are not mitigating or aggravating factors, they may, nonetheless, assist
the trial court in determining what sentence to impose for a crime.
Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998). Accordingly, although the
trial court listed the recommendation of the victim as an aggravating factor, any
error in doing so was harmless because it is proper to consider such
recommendations in sentencing. See id.
Hill pled guilty to receiving stolen property, a Class D felony. Ind.
Code § 35-50-2-7(a) provides:
A person who commits a Class D felony shall be imprisoned for a
fixed term of one and one-half (1 1/2) years, with not more than
one and one-half (1 1/2) years added for aggravating circumstances or not more
than one (1) year subtracted for mitigating circumstances. In addition, he may
be fined not more than ten thousand dollars ($10,000).
Hill was sentenced to the Indiana Department of Correction for 3 years.
Obviously, this sentence exceeds the presumptive sentence of 1 1/2 years. When
a trial court imposes an enhanced sentence, the trial judge must find at
least one aggravator. Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996).
Though we found that the trial court inappropriately found two aggravating factors,
a sentence enhancement may still be upheld if other valid aggravating circumstances exist.
See Hackett, 716 N.E.2d at 1278. We find that the trial
court found three valid aggravating factors. Therefore, we do not find that
the trial court abused its discretion in sentencing Hill because of its use
of inappropriate aggravating factors. See Sims, 585 N.E.2d at 272.
However, as stated above, we find that the trial court improperly concluded that
at least half of Hills sentence was not suspendable. Inasmuch as it
is apparent that the trial court was under an erroneous conception that precluded
its consideration of suspending any part of Hill's sentence, we remand this cause
for the sole purpose of such consideration.
See Henning, 477
N.E.2d at 553. In all other respects, we affirm the judgment of
the trial court.
Affirmed in part and remanded in part.
FRIEDLANDER, J., concurs.
SULLIVAN, J., concurs with opinion.
COURT OF APPEALS OF INDIANA
MICHAEL HILL, )
vs. ) No. 18A05-0010-CR-411
STATE OF INDIANA, )
SULLIVAN, Judge, concurring
I fully concur except with the statement of the majority that it is
proper to consider . . . recommendations [of victims for a severe or
maximum sentence]. Slip op. at 9. Although this conclusion is derived
Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998), citing Edgecomb v.
State, 673 N.E.2d 1185, 1199 (Ind. 1996), it is my view that the
sentencing authority should not be influenced by the frequently vindictive emotions and motivations
of crime victims, no matter how understandable those feelings and wishes might be.
It is certainly appropriate to consider the circumstances of the crime including perpetration
of injury both physical and psychological upon the victim. It is quite
another thing to inferentially adopt the wishes of a victim for a harsh
punishment when the sentencing authority would otherwise not impose such a sentence.
On September 25, 2000, the forgery charge against Hill was dismissed.