Bluck v. State

• Decision Date: 22 September 1999
• Docket Number: No. 12A02-9812-CR-976.,12A02-9812-CR-976.
• Citation: 716 N.E.2d 507,516 Ind. Ct. App. 1999
• Parties: Robbie R. BLUCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

716 N.E.2d 507

516 Ind. Ct. App. 1999

Robbie R. BLUCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 12A02-9812-CR-976.

Court of Appeals of Indiana.

September 22, 1999.

Richard L. Langston, Frankfort, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Robbie R. Bluck appeals from his seventy-six year sentence, the maximum permitted by law, following convictions on three counts of Child Molesting as Class B felonies, and two counts of Child Molesting as Class C felonies.¹ Bluck contends that the court impermissibly punished him for exercising his right to a jury trial, based his sentence on invalid aggravating circumstances and imposed a manifestly unreasonable sentence.

We affirm in part, reverse in part and remand.

FACTS

Bluck lived in an apartment in the same building where thirteen-year-old J.A. lived with his family. J.A. visited Bluck almost every day. On one occasion, when J.A. and Bluck were alone, Bluck pulled down his own pants and told J.A. to do the same. J.A. complied. Bluck fondled J.A.'s penis, and the minor reciprocated. Over a four-month period there were approximately ten to fifteen similar incidents. Bluck also performed fellatio and anal intercourse on J.A., and J.A. performed fellatio on Bluck.

The State charged Bluck with five counts of child molesting. At Bluck's first trial, the jury was unable to reach a verdict, and the court declared a mistrial. Upon re-trial, the jury found Bluck guilty on all counts. In its sentencing statement, the court enumerated four aggravators and one mitigator, found that the aggravators outweighed the mitigator, and imposed the maximum sentence of twenty years for each of the three Class B felonies, the maximum sentence of eight years for each of the Class C felonies, and then ordered the sentences to run consecutively, for a total executed term of seventy-six years. Bluck now appeals.²

DISCUSSION AND DECISION

A. Jury Trial

Bluck first contends that the severity of his sentence demonstrates that the trial court impermissibly punished him for exercising his constitutional right to a jury trial. The right to trial by jury for serious offenses is a fundamental right. Walker v. State, 454 N.E.2d 425, 429 (Ind. Ct.App.1983), trans. denied. A more severe sentence may not be imposed upon a defendant because he exercises that right. Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986); Walker, 454 N.E.2d at 429.

In support of his claim, Bluck asserts generally that his sentence is several times greater than sentences usually imposed on other first time offenders in the Clinton Circuit Court. Even if that were true, Bluck has not shown that the sentence resulted from his having exercised his right to a jury trial. The trial court did not mention the jury trial when it sentenced Bluck and, without any probative evidence, we cannot say that the sentence violated Bluck's constitutional rights on those grounds. See Hill, 499 N.E.2d at 1107

; Walker, 454 N.E.2d at 430.

B. Sentencing Statement

Next, Bluck contends that the court identified improper aggravating circumstances. Generally, sentencing determinations are within the trial court's discretion and are governed by Indiana Code Section 35-38-1-7.1. Thacker v. State, 709 N.E.2d 3, 9 (Ind.1999). When enhancing a presumptive sentence, the trial court must identify all "significant" aggravating and mitigating factors, state why each is considered aggravating or mitigating, and articulate the balancing process by which the court determined that the aggravating factors outweighed the mitigating factors. Coleman v. State, 694 N.E.2d 269, 279 (Ind.1998). The same aggravating circumstances may be used to enhance a presumptive sentence and to impose consecutive sentences. Hardebeck v. State, 656 N.E.2d 486, 491 (Ind.Ct.App.1995), trans. denied.

Here, Bluck challenges the following separately identified aggravating circumstances:

1. Correctional Treatment

The court stated:

The defendant is in need of correctional treatment that can best be served by commitment to a penal facility. He is not a suitable candidate for rehabilitative treatment because of his denial that the present offenses occurred. The child molesting expert this Court uses, Ed Pereira, Family Services Society in Marion, Indiana, has testified on many occasions in this Court that rehabilitation is not possible without the defendant admitting the molestation and having empathy for the victim.

(emphasis added). The need for correctional treatment best served by commitment to a penal facility is a proper aggravator only when the trial court articulates why the specific defendant requires treatment for a period of time in excess of the presumptive sentence. Beason v. State, 690 N.E.2d 277, 281-82 (Ind.1998). Here, in its formal sentencing statement, the court relied upon testimony from an expert in other cases to conclude that, because Bluck denied the molestations, rehabilitation was not possible. During the sentencing colloquy, the court also remarked, "[I]t's pretty well known within the field that a [sex offender] is not a suitable candidate for treatment [who] denies the offenses."

When determining the proper sentence to be imposed, the rules of evidence, other than those concerning matters of privilege, do not apply. Ind. Evidence Rule 101(c)(2); Jackson v. State, 697 N.E.2d 53, 55 (Ind.1998). The rationale for the relaxation of evidentiary rules is that, in a trial, the issue is whether a defendant is guilty of having engaged in certain criminal conduct, and the rules of evidence limit the evidence to that strictly relevant to the crime charged. Thomas v. State, 562 N.E.2d 43, 47 (Ind.Ct.App.1990). At sentencing, however, the evidence is not confined to the narrow issue of guilt. Id. Rather, the task is to determine the type and extent of punishment. Id. "This individualized sentencing process requires possession of the fullest information possible concerning the defendant's life and characteristics." Id.

Nevertheless, the defendant is entitled to be sentenced only on the basis of accurate information, and the defendant retains the right to refute any inaccurate or improper information. Dillon v. State, 492 N.E.2d 661, 663 (Ind.1986). The sentencing process should be fair to each individual defendant, and a sentence based on materially untrue assumptions violates due process. Id. (citations omitted). There is literature indicating that typical sex offenders cannot be rehabilitated until they admit their behavior. See, e.g., Melissa R. Saad, Note, Civil Commitment and the Sexually Violent Predator: Stability Without Tyranny and Liberty Without Anarchy, 75 DENV. U.L.REV. 595, 604-05 (1998). However, when sentencing a particular defendant, profile evidence regarding the "average" child molester may or may not be probative. While Bluck's character is at issue, the court must base its sentencing decision on factors attributable specifically to him rather than on his identification with a general class or category of offenders. See Beason, 690 N.E.2d at 281-82

. The record contains no relevant evaluation or diagnosis, and Bluck had no fair opportunity to refute the information on which the court relied, material that, in any event, was neither specific to him nor included in the pre-sentence report nor received into evidence.

We recognize that successful psychological therapy may well depend upon the sex offender's admission of his guilt. Nevertheless, in a court of law, the defendant has the right to protest his innocence at all stages of the criminal proceeding, including sentencing. Dockery v. State, 504 N.E.2d 291, 297 (Ind.Ct.App. 1987). It is not an aggravating factor for a defendant, in good faith, to consistently maintain his innocence, and a court may not enhance a sentence for that reason. Angleton v. State, 686 N.E.2d 803, 816 (Ind.1997). In its brief, the State concedes, in effect, that the court's reliance on Bluck's failure to admit his guilt cannot support the sentence enhancement.³ We agree and conclude that the court was not justified in finding that Bluck required treatment for a period of time in excess of the presumptive sentence because he denied having committed the molestations.

2. Lack of Remorse

The State, however, claims that the reason the court found Bluck needed treatment beyond the presumptive period was because he showed no remorse. In a separately identified but related aggravator, the court stated:

Defendant has shown no remorse for these offenses. The lack of remorse can be used as an aggravating circumstance because of the corroboration of the victim and polygraph expert, Ernie Hudson.

A defendant lacks remorse when he displays disdain or recalcitrance, the equivalent of "I don't care." Smith v. State, 655 N.E.2d 532, 539 (Ind.Ct.App.1995), trans. denied. This has been distinguished from the right to maintain one's innocence, i.e., "I didn't do it." Id. Our supreme court has stated that a lack of remorse by a defendant who insists upon his innocence may be regarded as an aggravator. Bacher v. State, 686 N.E.2d 791, 801 (Ind.1997). An exception has been found where a defendant maintained his innocence and the only evidence of guilt was the victim's uncorroborated testimony. See Dockery, 504 N.E.2d at 297

.

Bluck does not challenge the factual predicate for the court's finding but relies upon Dockery and argues that there was no physical evidence to corroborate J.A.'s testimony. The State counters that Bluck failed a polygraph test, the results of which were admitted at his trial. This, the State argues, constitutes sufficient independent evidence to warrant the court's use of the lack of remorse aggravator. We agree that there is evidence corroborating the victim's testimony so that Dockery does not control. Under Bach...