Bennett v. State

• Citation: 862 N.E.2d 1281
• Decision Date: 21 March 2007
• Docket Number: No. 45A05-0604-CR-220.,45A05-0604-CR-220.
• Parties: Mark D. BENNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

862 N.E.2d 1281

Mark D. BENNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A05-0604-CR-220.

Court of Appeals of Indiana.

March 21, 2007.

Mark A. Bates, Appellate Division, Office of Public Defender, Crown Point, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Mark Bennett appeals the sentence he received after pleading guilty to confinement and sexual battery, both class D felonies. We affirm in part, reverse in part, and remand with instructions.

Issues

Bennett raises two issues, which we restate as follows:

I. Whether the court improperly weighed the aggravators and mitigators, resulting in an inappropriate sentence; and II. Whether the restitution order is valid.

Facts and Procedural History

On January 14, 2005, the State charged Bennett with child molesting as a class B felony. Appellant's App. at 11. The State amended the information more than once. Id. at 35. Pursuant to a February 3, 2006 plea agreement, Bennett admitted he was guilty of committing confinement and sexual battery, both class D felonies. Id. at 37; see also G. Plea Tr. at 13-15. Specifically, Bennett stipulated that he was the defendant, that N.P. was the victim, and:

3. That between the dates of 1/1/1995 and 12/31/1998 at 1218 E. Cleveland Ave. Apt. B, Hobart, Lake County, Indiana, [he] resided at said address.

4. That on the above said dates and address, [Bennett] did knowingly and intentionally confine [N.P.] without consent from the victim by force or the imminent threat of force.

5. That on the above said dates and address, [Bennett] did with intent to arouse or satisfy his own personal sexual desires did touch the victim by force or the imminent threat of force.

6. That the above stated act compelled the victim to submit to the touching.

App. at 39 (stipulated factual basis). In exchange for Bennett's admissions of guilt, the State agreed to dismiss a charge of class A felony child molesting. Id. at 37. "The parties agree[d] that they [were] free to fully argue their respective positions as to the sentence to be imposed by the Court." Id.

On March 27, 2006, the court held a sentencing hearing after which it entered an order that provided as follows:

The Court considers the written presentence report and sentences [Bennett] to a term of Count II: thirty-six (36) months; and Count III: thirty (30) months. Said sentences are ordered served consecutively. The Court suspends the imposed sentence in Count II: thirty-six (36) months. The Court orders [Bennett] committed to the Department of Correction for a term of thirty (30) months. After his release from incarceration, [Bennett] is placed on probation for a term of thirty-six (36) months. As a condition of probation, [Bennett] is ordered to pay probation user's fees as assessed. As an additional condition of probation, [Bennett] is ordered to reimburse the victim and her family for any out of pocket expenses (therapy or otherwise) specifically related to this case....

SENTENCING CONSIDERATIONS:

1. The nature and circumstance of the crime committed are as follows: pursuant to the stipulated factual basis for the plea agreement.

2. Any oral or written statement made by the victim/victim representative.

MITIGATING CIRCUMSTANCES: The Court considers the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:

1. [Bennett] has no history of delinquency or criminal activity.

2. Imprisonment of [Bennett] will result in undue hardship [to] his dependents.

3. [Bennett] has pled guilty and admitted responsibility.

AGGRAVATING CIRCUMSTANCES: The Court considers the following factors as aggravating circumstances or as favoring imposing consecutive terms of imprisonment:

1. Pursuant to the document submitted by [Bennett], specifically the psychosexual assessment of Robert Hundt, the victim was between six (6) and nine (9) years of age at the time this offense occurred.

2. As admitted by [Bennett, he] was in a position of care and custody of the victim at the time of the offense.

The court finds that each aggravating factor, standing alone, in and of themselves, outweigh any mitigating factor. . . .

Id. at 41-42.

Discussion and Decision

I. Aggravators, Mitigators, Appropriateness

Bennett contends that because he has never had the "benefit of probation, the trial court should have placed him on probation for the entire term of his sentence." Appellant's Br. at 4, 6. Thus, he requests a remand or a reduced sentence to be served entirely on probation. In a related argument, Bennett asserts that his sentence was inappropriate given his character. For support, he focuses upon his lack of criminal history, his expressed remorse, his admission of responsibility (as demonstrated by his guilty plea, which "spar[ed] N.P. a trial"), and the hardship that incarceration would cause his family. Appellant's Br. at 6.

We begin with the observation that between the date of Bennett's offense — which the charging information alleged occurred between 1995 and 1998—and the date of sentencing, March 27, 2006, Indiana Code Section 35-50-2-6 was amended to provide for "advisory" sentences rather than "presumptive" sentences. See P.L. 71-2005, § 9 (eff.Apr.25, 2005). This Court has previously held that the change from presumptive to advisory sentences should not be applied retroactively. See Weaver v. State, 845 N.E.2d 1066 (Ind.Ct.App.2006), trans. denied; but see Samaniego-Hernandez v. State, 839 N.E.2d 798, 805 (Ind.Ct.App.2005). Therefore, we operate under the earlier "presumptive" sentencing scheme when addressing Bennett's sentence.

In general, sentencing lies within the discretion of the trial court. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). As such, we review sentencing decisions only for an abuse of discretion, "including a trial court's decision to increase or decrease the presumptive sentence because of aggravating or mitigating circumstances." Id. Furthermore, "[w]hen enhancing a sentence, a trial court must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reasons why each circumstance is aggravating or mitigating; and (3) evaluate and balance the mitigating against the aggravating circumstances to determine if the mitigating offset the aggravating circumstances." Vazquez v. State, 839 N.E.2d 1229, 1232 (Ind.Ct.App.2005) (quoting Bailey v. State, 763 N.E.2d 998, 1004 (Ind.2002)), trans. denied. A single aggravating circumstance is adequate to justify an enhanced sentence. Moon v. State, 823 N.E.2d 710, 717 (Ind.Ct.App.2005), trans. denied.

As the following excerpt indicates, the court was well aware of the fact that Bennett had never been on probation before:

So what are mitigating factors? There's no doubt whatsoever that a considerable mitigating factor is that [Bennett] comes into court as a 40-year-old man without any criminal convictions whatsoever. Not even a single arrest from what I can see in the presentence investigation report. It does suggest to me that [Bennett] has been able to lead a law-abiding life for all of his life. That's a big deal. Also taking into account [Bennett] pled guilty, admitted his responsibility as another mitigating factor.

To some extent, and because I have heard some evidence of it, I think that a lengthy incarceration will pose undue hardship to [Bennett's] dependants, something that I probably should not ignore, so I cite that as an additional mitigating factor. [Bennett] has never been given the benefit of probation; so therefore I need to make the leap or the presumption that [Bennett] will respond affirmatively to some type of probation. There's nothing to suggest to me that probation would necessarily be inappropriate when [Bennett] would not do well on probation.

Sent. Tr. at 47. Indeed, the court's decision to order that Bennett serve part of his sentence at the Department of Correction and part on probation demonstrates that the court accorded mitigating weight to Bennett's lack of prior probation. "Generally, the weight assigned to a mitigator is at the trial judge's discretion, and the judge is under no obligation to assign the same weight to a mitigating circumstance as the defendant." Covington v. State, 842 N.E.2d 345, 348 (Ind.2006). The court was within its discretion in assigning this mitigator significant though not overwhelming weight — regardless of Bennett's opinion. See Gillem v. State, 829 N.E.2d 598, 604-05 (Ind.Ct.App.2005) ("The trial court is not obliged to agree with the defendant as to the weight or value to be given proffered mitigating circumstances."), trans. denied.

Indiana Appellate Rule 7(B) provides, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Weiss v. State, 848 N.E.2d 1070, 1072 (Ind.2006). The presumptive sentence for a class D felony was eighteen months, with not more than eighteen months added for aggravating circumstances. See Ind.Code § 35-50-2-7. According to the probable cause affidavit,

between the ages of six (6) and nine (9) years old, [N.P.] was molested on several occasions by a friend of her father's, [Bennett]. [N.P.] further stated that some of these molestations occurred in Markham, Illinois and some at Bennett's home in Hobart, Indiana. She further stated that on occasion she would stay over at Bennett's home in Hobart with Bennett's children. She further stated that she remembers one specific occasion at Bennett's home in Hobart, Indiana in which she was asleep on the top bunk of a bunk bed when [Bennett] came into the room and picked her up and carried her into his bedroom and laid her down on the bed. She further...