Abercrombie v. State

• Decision Date: 10 March 1981
• Docket Number: No. 480S106,480S106
• Parties: Keith E. ABERCROMBIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 316

417 N.E.2d 316

275 Ind. 407

Keith E. ABERCROMBIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 480S106.

Supreme Court of Indiana.

March 10, 1981.

Geoffrey A. Rivers, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Keith E. Abercrombie, pleaded guilty to rape, a class B felony, Ind.Code § 35-42-4-1 (Burns 1979 Repl.); robbery, a class A felony, Ind.Code § 35-42-5-1 (Burns 1979 Repl.); burglary, a class A felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.); and theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.). He was sentenced to terms of twenty years, forty years and forty years on the first three counts, these terms to run consecutively. He was sentenced to a four-year term on the count of theft, this term to run concurrently. He now appeals attacking the severity of the one hundred-year sentence and alleging errors in the sentencing procedure.

A summary of the facts most favorable to the state shows that the defendant, who was 27 years old at the time of this incident, had been on parole for about two years for a Federal Fire Arms violation. He was holding a steady job with a local foundry, was living with his parents and had his own car. On the night of April 5, 1979, defendant was at a tavern with a group of friends and then went to a party at a house next door to the victim's house. In the early morning hours of April 6, 1979, defendant was very drunk and was thrown out of the party. He does not remember any of the later events.

The victim, a 69-year-old widow, awoke around 7:00 a. m. that morning and found defendant standing, fully dressed, in her shower. He told her to cooperate; then grabbed her and took her into the bedroom. He raped her once at that time and ordered her to cook breakfast for him. After that, he raped her a second time. Defendant ordered her to dump the contents of her purse on a desk and took $20 and her car keys. The victim awoke later, not knowing if she had fainted or been struck, and found herself on the basement floor with her hands and feet bound. She was subsequently hospitalized for four days for her injuries which included bruises and a fractured sternum. Defendant was arrested later that day for speeding while driving the victim's car in Kentucky. The victim identified defendant as the intruder who attacked her.

Defendant originally entered a plea of not guilty by reason of insanity to the charges. Two court-appointed psychiatrists examined him. Defendant then entered a plea of guilty on October 24, 1979, at a hearing where the trial court heard evidence from defendant, a police officer and the victim. Defendant was sentenced at a sentencing hearing on November 27, 1979, where the trial court heard evidence from defendant and his father. The court also considered a presentence report in which the probation officer recommended a term of seventy years but gave no specific reasons for this recommendation. Defense counsel gave a lengthy statement at the hearing about the mitigating and aggravating factors present in this case and argued that the recommended seventy-year term was overly excessive and was not proportional to the offenses.

The trial court sentenced defendant to a term of one hundred years. He gave no specific reasons for the sentence and did not list any specific factors which he had considered as aggravating or mitigating circumstances other than the serious nature of the crime itself. His only remarks were the following:

"Well it is the judgment of this Court after having reviewed the evidence here and the pleadings. And the presentence report submitted by the probation officer, and having thought about this case for a long time, which I have. And thought about the statute, considered the statue (sic), the aggrevating (sic) and mitigating circumstances here. The aggrevating (sic) circumstances having so far out weighted the mitigating circumstances. And the crime having been so (inaudable) (sic) and discussing and (inaudable) (sic) it is the judgment of this Court that on Count I, C2S 79/57, that the aggrevating (sic) circumstances far out weigh the mitigating circumstances and a 10 year increase be added to the standard penalty of 10 years for a total of 20 years on Count I. On Count II, it is the judgment of this Court that the aggrevating (sic) circumstances far out weigh the mitigating circumstances and that this warrants an increase of 10 years, to the base penalty of 30 years for a total of 40 years, on Count II. And that Count II, be served consecutively to Count I. Count III, it is the Court's judgment that the aggrevating (sic) circumstances far out weigh the mitigating circumstances in this case. And that an additional 10 years be added to the standard term of imprisonment for burglary, a Class A felony, and that be a period of 40 years. And that period of time to be run consecutively with Count I and Count II. It is the judgment of this Court, that with respect to Count IV, that the mitigating circumstances far out weighed by the aggrevating (sic) circumstances, that the defendant be sentenced for a period of 4 years on Count IV. That it run concurrently with Counts I, II and III. That the defendant pay the costs in this case in the amount of $47.00 on each Count and that the defendant be remanded to the Department of Correction for a period of 100 years. That is all."

Defendant now argues that the one hundred-year sentence is cruel and unusual punishment and is not proportional to the nature of the offenses in violation of the Indiana Constitution, art. 1 § 16. He further argues that the trial court violated Ind.Code § 35-4.1-4-3 (35-50-1A-3, Burns 1979 Repl.) because he did not sufficiently set out his reasons for selecting the sentence he imposed and did not set out the specific aggravating and mitigating circumstances which he had considered. Defendant finally argues that the trial court erred in using the same aggravating circumstances to increase the sentence three different ways: to raise the classification of two counts from class B felonies to class A felonies; to add an additional number of years to the basic terms; and, finally, to impose consecutive terms of imprisonment.

Defendant's argument that his sentence constitutes cruel and unusual punishment and is not proportional to his crime must fail since it is well settled that the length of the term of punishment is primarily a legislative concern. This Court has continually held that the constitutional prohibitions against cruel and unusual punishment are a limitation upon the acts of the General Assembly and not upon the discretion of a trial court acting within the framework of a statute imposing penalties for the offense. Inman v. State, (1979) Ind., 393 N.E.2d 767; Gingerich v. State, (1948) 226 Ind. 678, 83 N.E.2d 47.

However, Indiana's criminal code has recently been restructured by the legislature and now sets out specific guidelines for the sentencing procedure. First, the sentencing court must make a record of the statement of the court's reasons for selecting the sentence that it imposes. Ind.Code § 35-4.1-4-3 (35-50-1A-3, Burns 1979 Repl.). The code further provides certain criteria for sentencing which must be considered by the trial judge as well as other factors which may be considered as mitigating circumstances or aggravating circumstances. Ind.Code § 35-4.1-4-7 (35-50-1A-7, Burns 1979 Repl.). This concept of distinguishable aggravating and mitigating circumstances is relatively new to Indiana law and is related directly to the constitutional mandate that "The penal code shall be founded on the principles of reformation, and not of vindictive justice." Indiana Constitution, art. 1 § 18. In order to further implement the constitutional mandate, the appellate courts are authorized to review sentences. The scope of our review is defined within our Rules for the Appellate Review of Sentences, Rule 2(1):

"The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the...