Biddinger v. State
| Decision Date | 25 April 2006 |
| Docket Number | No. 49A05-0504-CR-234.,49A05-0504-CR-234. |
| Parties | Nicholas BIDDINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Richard Kammen, Gilroy, Kammen & Hill, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, for Appellee.
Appellant-defendant Nicholas Biddinger appeals from the sentence imposed by the trial court after Biddinger pleaded guilty to one count of Aggravated Battery,1 a class B felony. In particular, Biddinger argues that the trial court erred in: (1) refusing to permit him to make a statement in allocution; (2) considering the type of gun and ammunition Biddinger used in committing the crime as an aggravating circumstance when it was lawful for him to own and possess them; (3) overlooking the fact that Biddinger suffered from post-traumatic stress disorder (PTSD) as a mitigator; and (4) imposing a sentence that is inappropriate in light of the nature of the offense and his character.
We conclude that the trial court erred in considering the type of weapon and ammunition that Biddinger used in committing the instant offense as an aggravating circumstance. We also conclude that the trial court should have considered Biddinger's PTSD to be a mitigator. But because the trial court sentenced Biddinger to the minimum amount of executed time permitted by the plea agreement — ten years — we do not have authority to reduce his sentence. Consequently, we affirm the judgment of the trial court.
In March 2002, just prior to his graduation from high school in Shelbyville, Biddinger obtained a permit to carry a gun. The gun, which Biddinger carried frequently, was a .40-caliber Glock that was loaded with hollow-point bullets.2 In May 2003, Biddinger was vacationing in Miami, Florida, with his parents, when he was attacked by two men who pistol-whipped and threatened to shoot him.
On January 17, 2004, Biddinger and his girlfriend, Jessica Powell, planned to spend the night at Powell's house because her mother and her mother's boyfriend would be gone for the weekend. That evening, Powell received a telephone call from eighteen-year-old Jason Gross, seventeen-year-old Grant Hoefener, and nineteen-year-old Kris Holzhausen, who wanted to come and spend time at Powell's house that night.
After Powell's mother and her boyfriend left, Powell, Gross, Hoefener, and Holzhausen went to a nearby liquor store and paid someone to buy vodka and beer for them. They returned to Powell's house and began to drink and play drinking games. Biddinger did not join in, remaining in another room watching television while Powell stayed with the three others, drinking and dancing. At some point, Biddinger told Hoefener and Holzhausen that he thought that Gross was flirting with Powell, and that if Gross continued to flirt with her, Biddinger was going to shoot him. Gross later learned of Biddinger's threat, which precipitated an argument between Biddinger and the three other men, who were intoxicated. The argument continued as the night progressed.
Biddinger also argued with Powell, saying that the three other men should leave and go home. But Powell did not want them to leave because they had been drinking and were too intoxicated. Powell finally told Biddinger to call his parents to come and get him because Biddinger did not have a driver's license and was unable to drive himself home.
After Biddinger telephoned his parents, he and Powell waited in her bedroom until they arrived. When they arrived, Biddinger grabbed his bag and began to walk to the kitchen so that he could exit the home through the kitchen door. Hoefener, Gross, and Holzhausen began arguing with Biddinger again as he exited the house. After Biddinger left through the kitchen door, Gross and Holzhausen followed him outside and stood at the top of the driveway, yelling at him. As the two men were yelling at Biddinger, he walked to the end of the driveway and placed his bag in his parents' vehicle.
Biddinger's father, Robb, exited his vehicle, told Biddinger to get inside the vehicle, walked up the driveway followed by his wife, Ginger, and entered the door into the kitchen of Powell's house. Robb, who had a gun in his hand, pushed Hoefener against the stove, pointed the gun at his stomach, told him not to bother Biddinger again, and threatened to shoot him. Powell began pushing Robb, telling him to get out, while at the same time, Ginger grabbed Robb, told him, "Let's go," and began pulling him toward the door. Tr. p. 25, 259.
While the activity was taking place in the kitchen, Biddinger began walking up the driveway toward the house, but was prevented from re-entering the home by Holzhausen, who had remained outside. Biddinger pulled his gun, told Holzhausen to back off, and then shot Holzhausen in the left side of his chest near his heart. Police and emergency medical technicians (EMTs) were called and came to the scene. The EMTs transported Holzhausen to the hospital, where he died later that morning as a result of the gunshot wound.
On January 18, 2004, Biddinger was arrested for killing Holzhausen. He was eventually charged with murder, class C felony battery, class D felony pointing a firearm, class D felony criminal recklessness, and class B felony aggravated battery. A jury trial commenced on October 7, 2004.
On October 13, 2004, Biddinger entered into a guilty plea, whereby he pleaded guilty to aggravated battery in exchange for the State dismissing the remaining charges against him. The parties were free to argue aggravating and mitigating circumstances but agreed that Biddinger would receive an executed sentence of at least ten, and at the most, twenty years of incarceration. By the terms of the plea agreement, Biddinger waived the Blakely requirement and requested that the trial court determine the aggravating circumstances.
At the sentencing hearing on December 3, 2004, Biddinger presented evidence concerning the possibility that he might be suffering from PTSD and the effect that PTSD might have had on him at the time he shot and killed Holzhausen. At the conclusion of the evidence, Biddinger sought to make a statement at the appropriate time, but the trial court ruled that allocution was not available because Biddinger had pleaded guilty. According to the trial court, allocution only applies when a defendant pleads not guilty, a trial is held, and a verdict is rendered. The trial court ruled that Biddinger could make a statement with respect to his remorse but could not address any other mitigating factors. Biddinger's counsel proffered Biddinger's full written statement, which he would have given if not for the trial court's ruling, in an envelope and entered the envelope into evidence. Biddinger then made a statement in which he apologized for committing the crime and asked the trial court to impose a sentence that it deemed to be fair.
The trial court found the following aggravating circumstances: (1) Biddinger's weapon was of large caliber and was loaded with hollow-point bullets; (2) Biddinger knew that he was the only person at Powell's house that night who was armed with a gun; (3) Biddinger was told to leave, it was not his idea to leave; neither Biddinger nor Robb had the right to reenter Powell's residence; Holzhausen was acting in defense of others in not allowing Biddinger to reenter the residence with a gun; (4) Biddinger could have retreated at any time once he was outside the home; and (5) Biddinger intended to and did shoot Holzhausen in the left side of his chest, near his heart. The trial court found that the most significant aggravating circumstance, which outweighed all mitigators, was the fact that Holzhausen was not armed, which Biddinger knew at the time he shot him.
The trial court also found the following mitigating circumstances: (1) Biddinger accepted responsibility by pleading guilty; (2) there was provocation until Biddinger exited the house; (3) the crime involved circumstances unlikely to recur; (4) Biddinger's lack of a prior criminal history; and (5) Biddinger was unlikely to commit any other crimes.
Ultimately, the trial court concluded that the aggravators outweighed the mitigators. It imposed a twelve-year sentence on Biddinger, with ten years executed and two years suspended to probation. The trial court also ordered Biddinger to undergo a mental health evaluation and treatment for PTSD through his probation.
Biddinger first argues that the trial court erred in refusing to permit him to make a statement of allocution. Indiana Code section 35-38-1-5 provides that when a defendant appears for sentencing, he may "make a statement personally on his own behalf and, before pronouncing sentence, the Court shall ask him whether he wishes to make such a statement."
The purpose of the right of allocution is to give the trial court the opportunity to consider the facts and circumstances relevant to the sentencing of the defendant in the case before it. Vicory v. State, 802 N.E.2d 426, 429 (Ind.2004). When the defendant is given the opportunity to explain his view of the facts and circumstances, the purpose of the right of allocution has been accomplished. Id. at 430. A defendant claiming that he was denied his right to allocution carries a strong burden in establishing his claim. Id. at 429.
Here, the trial court ruled that Biddinger could make a statement but could not argue mitigating circumstances therein. Biddinger claimed that it was an improper restriction on his right of allocution, but agreed to make an abbreviated statement in which he limited himself to an expression of remorse for his actions. Additionally Biddinger's attorney proffered Biddinger's full written statement in a sealed envelope, submitting it as Exhibit K.
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