Allen v. State

• Decision Date: 30 September 1983
• Docket Number: No. 1281S339,1281S339
• Parties: Robert L. ALLEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1011

453 N.E.2d 1011

Robert L. ALLEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1281S339.

Supreme Court of Indiana.

Sept. 30, 1983.

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

We affirmed defendant's convictions of criminal confinement, criminal deviate conduct, burglary, battery, and habitual offender in his direct appeal to this Court, Allen v. State, (1982) Ind., 439 N.E.2d 615. We found, however, that the trial court's findings for giving a one hundred and fifty-eight year enhanced sentence were not sufficient to permit review under our sentencing standards, and we remanded the cause for the trial court to either impose the presumptive sentences concurrently or enter the reasons for imposing the enhanced sentence.

Thereafter, the trial court held a resentencing hearing where defendant presented evidence in his behalf. The court resentenced defendant to the same enhanced terms originally imposed and entered a lengthy statement of reasons for the sentences. Defendant now argues that the trial court erred in enhancing his sentences without considering certain mitigating factors and that the sentences imposed are manifestly unreasonable.

A brief summary of the facts relevant to these issues shows that the victim lived in a rural area of Indiana near the Ohio border. On the afternoon of the instant crimes, defendant forced his way into her home with a knife. He handcuffed her wrists behind her back and forced her to commit three acts of fellatio. Defendant forced the victim to show him through various rooms in the house and to show him where her young children were sleeping. Finally he hit her several times on the head and stabbed her in the back before he left. The victim needed the assistance of one of her boys to use the telephone and call for help. She was bleeding so heavily that the blood soaked through her boy's shirt.

Defendant first argues that there were mitigating factors which the trial court did not specify in its findings and that he was entitled to have the court consider these factors. These three factors, his military record, his expressions of remorse and protestations of innocence, and the fact that he had a wife and young son, were presented to the court during the resentencing hearing.

It is firmly established that when the trial court uses its discretionary power to increase or decrease the basic sentence or impose consecutive terms of imprisonment, the record must disclose what factors were considered by the judge to be mitigating or aggravating circumstances. The record must further show that the determination of the sentence was based upon a consideration of the facts of the specific crime and the relation of the sentence imposed to the objectives to be served by that sentence. Washington v. State, (1981) Ind., 422 N.E.2d 1218; Abercrombie v. State, (1981) Ind., 417 N.E.2d 316; Gardner v. State, (1979) 270 Ind. 627, 388 N.E.2d 513. Furthermore, we have consistently held that under our present sentencing statutes the alternative ways of increasing a particular sentence are not mutually exclusive. A court may, upon consideration of relevant facts and information, increase the basic penalties, impose consecutive sentences, or both. Washington v. State, 422 N.E.2d at 1221; Mott v. State, (1980) Ind., 402 N.E.2d 986; Inman v. State, (1979) 271 Ind. 491, 393 N.E.2d 767.

The legislature has vested the trial court with the discretion to increase or decrease the basic sentence as well as to determine whether sentences are to run concurrently or consecutively in certain cases. Ind.Code Secs. 35-50-1-2(a), 35-50-2-3 to -7 (Burns 1979 Repl.). The legislature has provided certain criteria for sentencing which must be considered by the trial judge as well as other factors which may be considered as mitigating or aggravating circumstances, but the statute expressly does not limit the matters the court may consider in determining the sentence. Ind.Code Sec. 35-4.1-4-7 (35-50-1A-7) (Burns 1979 Repl.). Vanyo v. State, (1983) Ind., 450 N.E.2d 524; McManus v. State, (1982) Ind., 433 N.E.2d 775.

In this case, the trial court heard statements from defendant, his attorney, and from the state at the resentencing hearing. He had the presentence report in front of him, and defendant's attorney stated that there were no significant changes or errors in the report. The court stated that he had reviewed the criteria set out in the sentencing statutes as well as the relevant facts of the case prior to the hearing. Then he specifically stated that he found no mitigating circumstances to support a reduction of the base penalties for any of the felonies.

We find that the trial court had the discretion to determine that the three matters asserted by defendant to be mitigating were not mitigating circumstances under the facts of this case. The court had no duty to believe defendant's self-serving statements that he was not guilty and that he was sorry for the wrong perpetrated on the victim, so these statements cannot be considered as mitigating circumstances.

Defendant apparently had nine years of service in the Marine Corps including substantial duty in Vietnam, and had received an honorable discharge. However, defendant also had a prior criminal record involving crimes of violence against women and had received some degree of leniency in sentencing on prior crimes committed in the states of California and Ohio apparently because of his military record. The trial court here was obviously justified in concluding that defendant's military record was no longer a mitigating circumstance.

Finally, the fact that defendant had a wife and young son is not necessarily a mitigating circumstance when the facts of the crime reveal that defendant apparently had no sympathy for other parents and children. The first thing he did after...