Abercrombie v. State, 981S265
| Decision Date | 12 November 1982 |
| Docket Number | No. 981S265,981S265 |
| Citation | 441 N.E.2d 442 |
| Parties | Keith E. ABERCROMBIE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Geoffrey A. Rivers, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant-appellant, Keith E. Abercrombie, pleaded guilty to charges of rape, a class B felony, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.); robbery, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.); burglary, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.); and theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979 Repl.). He received sentences of twenty years for the rape conviction, forty years for the robbery conviction, forty years for the burglary conviction and four years for the theft conviction. The first three were to be served consecutively to each other while the last was to be served concurrently with the others for a total of one hundred years.
Upon consideration of the direct appeal from these convictions, we affirmed the convictions, but remanded the case for resentencing because the record contained no statement of reasons or of specific aggravating and mitigating circumstances to support the enhancement of the sentence or the imposition of consecutive terms of punishment. Abercrombie v. State, (1981) Ind., 417 N.E.2d 316. Because the original trial judge was deceased, we ordered a new sentencing hearing.
The resentencing hearing began on April 30, 1981, and was continued on May 13, 1981. On May 18, 1981, the resentencing judge rendered his decision sentencing defendant to terms of twenty years for the rape conviction, thirty years for the robbery conviction, thirty years for the burglary conviction and two years for the theft conviction. The sentence for the rape conviction was ordered to be served consecutively with the sentences on the other three convictions (those sentences to be served concurrently with each other) for a total of fifty years.
Defendant now appeals from this sentence contending that the resentencing court erred in not considering the principles of reformation as mandated by Art. 1, Sec. 18, of the Indiana Constitution and in improperly weighing the particular aggravating and mitigating circumstances of this case. He also urges that his sentence is manifestly unreasonable in light of the character of the offender and the nature of the offenses.
Indiana Code Sec. 35-4.1-4-3 (Ind.Code Sec. 35-50-1A-3, Burns 1979 Repl.) provides for a sentencing hearing and the making of a record of that hearing including:
"If the court finds aggravating circumstances or mitigating circumstances, a statement of the court's reasons for selecting the sentence that it imposes." Ind.Code Sec. 35-4.1-4-3(3) (Ind.Code Sec. 35-50-1A-3, Burns 1979 Repl.)
We found that at the first sentencing hearing there was no compliance with this mandate, and we remanded for entry of sufficient findings to support the sentence. There is, however, no requirement of a lengthy statement of aggravating and mitigating circumstances when the basic sentence prescribed by statute is imposed. Here, the thirty year sentences for the robbery and the burglary and the two year sentence for the theft were the presumptive sentences provided for by Ind.Code Secs. 35-50-2-4 (Burns 1979 Repl.) and 35-50-2-7 (Burns 1979 Repl.) and were to run concurrently. As we held in Gardner v. State, (1979) Ind., 388 N.E.2d 513, 517:
"When a court imposes the basic sentence embodied within a particular criminal statute, this Court will presume that the mandatory considerations were made by the judge, even if the record lacks specificity in enumerating those considerations."
Thus, the resentencing judge was not required to present a detailed statement of justification for imposition of the sentences for robbery, burglary and theft and need only have provided specific reasons and particular aggravating and mitigating factors for his enhancement of the basic sentence for the rape and for his order that that sentence be served consecutively with the others.
The sentencing decision is shaped and guided by the statutory criteria found in Ind.Code Sec. 35-4.1-4-7 (Ind.Code Sec. 35-50-1A-7, Burns 1979 Repl.). Under this provision, a sentencing court must consider the risk that the defendant will commit another crime, the nature and circumstances of the crime committed, and the prior criminal record, character and condition of the defendant in making a sentencing choice. The statute also lists several factors that may be considered as aggravating or mitigating circumstances. These criteria do not limit the matters that the court may consider in determining the sentence, Ind.Code Sec. 35-4.1-4-7(d) (Ind.Code Sec. 35-50-1A-7[d], Burns 1979 Repl.), but serve as guidelines for the sentencing decision.
Defendant initially argues that the court erred in not considering the principles of reformation as mandated by Art. 1, Sec. 18 of the Indiana Constitution and Ind.Code Sec. 35-4.1-4-7 (Ind.Code Sec. 35-50-1A-7, Burns 1979 Repl.). The resentencing judge did, however, specifically consider the possibility of the reformation of the defendant and explicitly stated his conclusion at the time the sentence was pronounced. As we noted in this case on its initial appeal, there are several objectives of a term of imprisonment, and while the primary goal is rehabilitation, these other goals, including the need to protect the community by sequestration of the offender, deterrence and community condemnation of the offender may be properly considered in the sentencing process. Abercrombie, supra, 417 N.E.2d at 320. Clearly, the resentencing judge complied with our directive in this case originally that there be "an indication that the court has considered the goals of rehabilitation." Id.
Defendant's second contention is that the resentencing court erred by improperly weighing and applying the mitigating and aggravating circumstances listed in Ind.Code Sec. 35-4.1-4-7 (Ind.Code Sec. 35-50-1A-7, Burns 1979 Repl.). The facts of this case show that defendant broke into the home of a sixty-nine year old woman, raped her twice, bound her hands and feet and threw or dragged her down the basement stairs....
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