Allen v. State

Citation722 N.E.2d 1246
Decision Date19 January 2000
Docket NumberNo. 89A01-9902-CR-56.,89A01-9902-CR-56.
PartiesJason A. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

E. Thomas Kemp, Richmond, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant Jason A. Allen ("Allen") appeals from his three convictions for robbery, all as Class B felonies. We affirm.

Issues

Allen raises one issue on appeal, which we restate as whether the trial court abused its discretion in imposing consecutive sentences for his robbery convictions.

Facts and Procedural History1

On May 17, 1997, Allen entered the lobby of a Ramada Inn in Richmond, Indiana. Armed with a BB gun that appeared to be a .357 revolver, Allen demanded money, warned an employee that he would "put a hole in his head" if he "pull[ed] anything funny," and left the hotel with money from the cash drawer.

On May 18, 1997, Allen and a companion entered a Domino's Pizza store in Richmond, Indiana. Allen's companion wielded a handgun that appeared to be a .357 revolver and demanded money. Allen grabbed money out of the cash register, and both men left the store.

On May 23, 1997, Allen and a companion entered the lobby of a Days Inn motel in Richmond, Indiana. The companion carried a .22 caliber rifle and demanded money. Allen grabbed the money, and both men left the motel.

As a result of these and other incidents, Allen was charged with four counts of robbery, all as Class B felonies, and one count of attempted robbery as a Class B felony on May 29, 1997. On November 23, 1998, he plead guilty to three counts of robbery, and the State dismissed the two remaining charges. On January 28, 1999, the trial court sentenced Allen to six years each on two of the counts and eight years on the third count (two years thereof to be served on probation), with the sentences to be served consecutively.2 Allen now appeals his sentence.

Discussion and Decision
Standard of Review

It is axiomatic that sentencing decisions are committed to the sound discretion of the trial court, and we "will reverse a sentence only upon a showing of manifest abuse of discretion." Ault v. State, 705 N.E.2d 1078, 1081 (Ind.Ct.App. 1999). Recognizing that a certain degree of subjectivity " `cannot be eliminated'" from the sentencing process, "our supreme court has stated that it is inappropriate to substitute the opinion of an appeals court regarding sentencing" for that of the trial court. Id. (quoting Hurt v. State, 657 N.E.2d 112, 114 (Ind.1995)). We will not revise a sentence unless it is " `manifestly unreasonable in light of the nature of the offense and the character of the offender.'" Thacker v. State, 709 N.E.2d 3, 10 (Ind.1999) (quoting Ind. Appellate Rule 17(B)).3 "`[T]he issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so.'" Thacker, 709 N.E.2d at 10 (quoting Brown v. State, 698 N.E.2d 779, 783-84 (Ind.1998)). In determining whether to impose consecutive sentences, the trial court may consider the aggravating and mitigating circumstances set forth in IND.CODE § 35-38-1-7.1(b) and IND.CODE § 35-38-1-7.1(c). Taylor v. State, 710 N.E.2d 921, 925 (Ind.1999) (citing IND.CODE § 35-50-1-2(c)). The trial court is required to state its reasons for imposing enhanced or consecutive sentences as follows: it must "(1) identify all significant aggravating and mitigating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and, (3) articulate the court's evaluation and balancing of the circumstances." Thacker, 709 N.E.2d at 9. In view of the sentencing issues presented in the instant case and the frequency with which they recur on appeal, we present a more detailed clarification of the requirements that trial courts must follow when imposing enhanced or consecutive sentences.

Identification of significant aggravating and mitigating circumstances

As with most sentencing issues, the touchstone of our discussion is IND.CODE § 35-38-1-7.1. Subsection (a) of the statute lists six factors that a trial court must consider in determining the appropriate sentence:

(1) the risk that the person will commit another crime;
(2) the nature and circumstances of the crime committed;
(3) the person's:
(A) prior criminal record;
(B) character; and
(C) condition;
(4) whether the victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age;
(5) whether the person violated a protective order issued against the person... and
(6) any oral or written statement made by a victim of the crime.

Subsection (b) lists 13 factors that a trial court may consider as aggravating circumstances or as supporting imposition of consecutive terms of imprisonment. Subsection (c), on the other hand, enumerates 11 factors that a trial court may consider as mitigating circumstances or as favoring suspension of the sentence and imposition of probation. As explained in subsection (d), "[t]he criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence."4 Although IND.CODE § 35-38-1-7.1 lists factors that may be considered by the trial court as aggravating, those factors are not exclusive, and the court has discretion to consider other relevant factors. See, e.g., Ballard v. State, 531 N.E.2d 196, 197 (Ind. 1988)

. The trial court is not required to "specifically address and discuss each of the factors listed in the statute." Jones v. State, 614 N.E.2d 936, 937 (Ind.1993).

With respect to mitigating circumstances, it is within a trial court's discretion to determine both the existence and the weight of a significant mitigating circumstance. Jones v. State, 705 N.E.2d 452, 454 (Ind.1999). Given this discretion, we will conclude that the trial court overlooked a mitigating circumstance only "when there is substantial evidence in the record of significant mitigating circumstances." Id. at 455. See Page v. State, 689 N.E.2d 707, 711 (Ind.1997)

(when significant mitigating circumstances are supported by the record, "they may reasonably give rise to a belief that they were overlooked and hence not properly considered"); see also Battles v. State, 688 N.E.2d 1230, 1236 (Ind.1997) (better practice for trial court to indicate rejection of any proffered mitigating circumstances to assure reviewing court that they have not been overlooked).

A trial court must include mitigators in its sentencing statement only if they are used to offset aggravators or to reduce the presumptive sentence, and only those mitigators found to be "significant" must be enumerated. Battles, 688 N.E.2d at 1236 (emphasis in original). A trial court is "not required to find the presence of mitigating factors" or to give the same weight or credit to mitigating evidence as does the defendant, Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993), nor is it "obligated to accept the defendant's assertions as to what constitutes a mitigating circumstance." Legue v. State, 688 N.E.2d 408, 411 (Ind.1997); see also Smith v. State, 670 N.E.2d 7, 8 (Ind.1996)

(no error in failing to find mitigation when claim is " `highly disputable in nature, weight, or significance'") (citation omitted). Although a trial court must consider evidence of mitigating factors presented by a defendant, Aguirre v. State, 552 N.E.2d 473, 476 (Ind.1990), it "is not obligated to explain why it has found that the factor does not exist." Fugate, 608 N.E.2d at 1374. See also Cooper v. State, 687 N.E.2d 350, 354-55 (Ind.1997) (while trial court may not ignore mitigating facts in record, "it need not explain why it found a particular circumstance insufficiently mitigating").

On the topic of aggravating circumstances, we find our supreme court's opinion in Tunstill v. State, 568 N.E.2d 539, 544 (Ind.1991) to be instructive regarding the consideration of a defendant's history of criminal activity as an aggravator under IND.CODE § 35-38-1-7.1(b)(2):5

A record of arrest, without more, does not establish the historical fact that the defendant committed a criminal offense on a previous occasion such that it may be properly considered as evidence that the defendant has a history of criminal activity. In order to enhance a criminal sentence based, in whole or in part, on the defendant's history of criminal activity, a sentencing court must find instances of specific criminal conduct shown by probative evidence to be attributable to the defendant. A bare record of arrest will not suffice to meet this standard....
The historical fact that a defendant has committed a crime, such that it may then be properly found to constitute the aggravator of a criminal history, may be established upon evidence that the defendant has been convicted of another crime, or upon evidence that the defendant committed another crime which is properly admitted at trial under an exception to the general prohibition against evidence of prior bad acts. Once a defendant's guilt of the other crime is established by conviction, admission, or properly admitted trial evidence, whether or not he was ever placed under arrest is irrelevant. The substance of the aggravator, "history of criminal activity," is the fact that the defendant committed the other crime, not that he was arrested for it.

(Citations omitted.) The Tunstill court further stated that although a record of arrests may not be considered as an aggravator under IND.CODE § 35-38-1-7.1(b)(2), it may be properly considered as such under IND.CODE § 35-38-1-7.1(d), which

gives a sentencing court the flexibility to consider any factor which reflects on the defendant's character, good or bad.... While a record of arrests does not establish the historical fact of prior criminal behavior, such a record does reveal
...

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