ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER KAREN M. FREEMAN-WILSON
Public Defender of Indiana Attorney General of Indiana
CYNTHIA MARICLE RUSSELL ARTHUR THADDEUS PERRY
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
LARRY BIEHL, ) ) Appellant-Defendant, ) ) vs. ) No. 16A01-0001-CR-4 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Larry Biehl was found guilty but mentally ill of voluntary manslaughter, a Class A felony and criminal recklessness, a Class C felony. The trial court found three mitigating circumstances (Biehls mental illness, his lack of criminal history, and his remorse) and no aggravating circumstances, but nevertheless imposed presumptive, concurrent sentences of thirty and four years, respectively. In light of Biehls severe, longstanding mental illness, lack of any criminal history, and the absence of any aggravating circumstances, we find the presumptive sentence manifestly unreasonable and remand with instructions to impose the minimum sentence of twenty years.
R. at 1673-74. Finally, Dr. Davis testified that Biehl was delusional at
a profound level, and that this condition elevated his perception of the confrontation
with the teenage boys to a risk of being killed. R. at
1634. He concluded that sanity was a very
difficult call as far as medical certainty is concerned . . . .
R. at 1638.
The jury found Biehl guilty but mentally ill of the lesser included offenses of voluntary manslaughter, a Class A felony, and Criminal Recklessness, a Class C felony. He was sentenced to the presumptive terms of thirty years for voluntary manslaughter and four years for criminal recklessness, to be served concurrently. The convictions were affirmed by a memorandum decision of this court in 1993. Biehl then filed a petition for post-conviction relief attacking the trial courts failure to find his mental illness as a mitigating circumstance. The petition was granted in 1999, and Biehl was ordered to be resentenced.
At resentencing, the trial court found no aggravating circumstances and three mitigating circumstancesno criminal history, remorse, and mental illness. Nevertheless, the trial court imposed the same sentence. This is a direct appeal of that sentence.
The Indiana Constitution gives this Court the power to review and revise sentences to the extent provided by rule. Ind. Const. Art. VII, § 6; Redmon v. State, 734 N.E.2d 1088, 1094 (Ind. Ct. App. 2000). We will revise a sentence authorized by statute only when it is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 17(B); Redmon, 734 N.E.2d at 1094. This inquiry requires the appellate court to reexamine all valid aggravating circumstances and mitigating circumstances. Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999).
We begin with the nature of the offense. Unlike many crimes in which the defendant seeks out his victim, the victims of these unfortunate shootings, to some extent, sought out Biehl. They entered his makeshift dwelling, threw bricks and boards at him, and refused to leave when asked to do so. Only then did Biehl depart and retrieve a gun. Although we are certainly troubled by the death and serious bodily injury that ensued, the totality of the circumstances surrounding the shootings point in favor of a mitigated sentence.
The same is true, with even greater force, in regard to the character of the offender. We are particularly influenced by Biehls lack of criminal history and longstanding mental illness.
The General Assembly has recognized the significance of a defendants lack of criminal history by specifically listing it as a mitigating circumstance in the sentencing statute. See Ind. Code § 35-38-1-7.1(c)(6) (1998). The statute appropriately encourages leniency toward defendants who have not previously been through the criminal justice system. Such mitigation is especially appropriate for a defendant like Biehl, thirty-five years old at the time of his crimes, who has lived a law-abiding life for decades.
Our supreme court has likewise recognized the significance of a lack of criminal history in sentencing. In a number of cases, it has found the maximum sentence to be manifestly unreasonable, at least in part, because the defendant did not have a prior criminal history. Edgecomb v. State, 673 N.E.2d 1185, 1198-1200 (Ind. 1996); Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996); Willoughby v. State, 660 N.E.2d 570, 584-85 (Ind. 1996); Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995); Walton v. State, 650 N.E.2d 1134, 1137 (Ind. 1995); Harrington v. State, 584 N.E.2d 558, 565 (Ind. 1992). See footnote Unlike the defendants in these cases, Biehl was not given the maximum sentence. Nevertheless, this significant mitigating circumstance should be given some weight in Biehls sentence.
Likewise, mitigating weight should also be given to Biehls mental illness. Our supreme court has outlined several considerations that bear on the weight, if any, that should be given to mental illness in sentencing. These factors include: (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 v. State, 697 N.E.2d 28, 31 (Ind. 1998) (citing Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)).
The trial court considered these factors and found Biehls mental illness to be a mitigating circumstance in its sentencing order:
Petitioner suffers from a mental illness.
The mental illness was a significant factor in Petitioners character and his behavior.
The mental illness was not of such degree that it precluded Petitioner from acting in a different manner.
The mental illness was of significant duration.
There is some connection between Petitioners disorder or impairment and the commission of the crime.
R. at 84.
Several cases from our supreme court have found the maximum sentence manifestly unreasonable for a defendant who was suffering a mental illness. Weeks, 697 N.E.2d at 31-32; Archer, 689 N.E.2d at 685-86; Gambill v. State, 675 N.E.2d 668, 677-78 (Ind. 1996); Mayberry, 670 N.E.2d at 1271; Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995); Walton, 650 N.E.2d at 1137; Christopher v. State, 511 N.E.2d 1019, 1023 (Ind. 1987). See footnote In each of these cases, the supreme court found that the defendants mental illness must be accorded some weight in sentencing. Indeed, a defendant like Biehl who is suffering from a severe, longstanding mental illness that has some connection with the crime(s) for which he was convicted and sentenced is entitled to receive considerable mitigation of his sentence, as the ten to forty year sentence reductions in the cited cases highlight.
In sum, we hold that the trial courts failure to assign any mitigating weight to Biehls complete lack of criminal record and his severe and longstanding mental illness results in a manifestly unreasonable sentence. Although our supreme court has observed that the proper weight to be afforded by the trial court to the mitigating factors may be to give no weight to them at all, Ross v. State, 676 N.E.2d 339, 347 (Ind. 1996), See footnote the cases cited above make clear that this general statement cannot be applied to every case, and indeed not to cases involving defendants who have no criminal history and a severe and longstanding mental illness.
Under our constitutional duty to review and revise sentences, we remand this case to the trial court with instructions to prepare an amended sentencing order and abstract imposing the minimum sentence of twenty years for voluntary manslaughter, to be served concurrently with two years for criminal recklessness. We realize that, if Mr. Biehl has remained in Credit Class I during his incarceration, this reduction will result in his immediate release.
Remanded with instructions.
SULLIVAN, J., concurs.
ROBERTSON, S.J., concurs in result.