Bonds v. State, 49S00-9902-CR-86.

• Docket Nº: No. 49S00-9902-CR-86.
• Citation: 729 N.E.2d 1002
• Case Date: June 09, 2000
• Court: Supreme Court of Indiana

729 N.E.2d 1002

Jerry A. BONDS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee

No. 49S00-9902-CR-86.

Supreme Court of Indiana.

June 9, 2000.

Rehearing Denied August 31, 2000.

729 N.E.2d 1004

Brent Westerfeld, Indianapolis, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

729 N.E.2d 1003

DICKSON, Justice

The defendant, Jerry A. Bonds, pleaded guilty to murder¹ and conspiracy to commit robbery as a class A felony.² The trial court sentenced the defendant to sixty-five years for the murder and twenty years for conspiracy as a class B felony, to be served consecutively. We deem the defendant's appeal to present the following two claims: (1) that the trial court improperly found aggravating circumstances; and (2) that his sentence is manifestly unreasonable.

Aggravating Circumstances

The defendant contends that the trial court relied on improper aggravating circumstances to enhance his sentences and to order them served consecutively. The trial court listed four aggravating circumstances: (1) the defendant recruited others in the planning and commission of the offense; (2) the defendant's role in the offense was that he was the one who actually went inside the store and committed the robbery and the killing; (3) a life was taken during the commission of the robbery; and (4) the money that was robbed from the store was obtained for purposes of satisfying a drug debt.

In general, sentencing determinations are within the trial court's discretion and are governed by Indiana Code section 35-38-1-7.1. See Thacker v. State, 709 N.E.2d 3, 9 (Ind.1999); Harris v. State, 659 N.E.2d 522, 527 (Ind.1995). We review trial court sentencing decisions only for abuse of discretion, including a trial court's decisions to increase or decrease the presumptive sentence because of aggravating or mitigating circumstances and to run the sentences concurrently or consecutively. See Archer v. State, 689 N.E.2d 678, 683 (Ind.1997); Smith v.

729 N.E.2d 1005

State, 675 N.E.2d 693, 697 (Ind.1996); Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980). If a trial court relies upon aggravating or mitigating circumstances to enhance or reduce the presumptive sentence, it must (1) identify all significant mitigating and aggravating 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. Harris, 659 N.E.2d at 527-28. We have consistently held that one aggravator alone is sufficient to warrant an enhanced sentence. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993). The same circumstance may be used to both enhance a sentence and to impose a consecutive sentence. Thacker, 709 N.E.2d at 10; Holmes v. State, 642 N.E.2d 970, 973 (Ind.1994); Marshall v. State, 621 N.E.2d 308, 322 (Ind.1993); McCollum v. State, 582 N.E.2d 804, 817 (Ind.1991). When a trial court improperly applies an aggravator, but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. Blanche v. State, 690 N.E.2d 709, 716 (Ind.1998)

The "nature and circumstances" of a crime is a proper aggravator. See IND.CODE § 35-38-1-7.1 (the nature and circumstances of a crime shall be considered in determining what sentence to impose); Thacker, 709 N.E.2d at 10. While a trial court may not use a factor constituting a material element of an offense as an aggravating circumstance, Angleton v. State, 714 N.E.2d 156, 160 (Ind.1999); Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997); Holmes, 642 N.E.2d at 972, a court may look to the particularized circumstances of the criminal act, Ellis v. State, 707 N.E.2d 797, 804-05 (Ind.1999); Smith, 675 N.E.2d at 698; Ector v. State, 639 N.E.2d 1014, 1015 (Ind.1994); Williams v. State, 619 N.E.2d 569, 573 (Ind.1993). Although the particular manner in which a crime is committed may constitute an aggravating factor, Jackson v. State, 697 N.E.2d 53, 56 (Ind.1998); Johnson, 687 N.E.2d at 347; Widener v. State, 659 N.E.2d 529, 532 (Ind.1995), a trial court should specify why a defendant deserves an enhanced sentence under the particular circumstances, Ellis, 707 N.E.2d at 805; Wethington v. State, 560 N.E.2d 496, 510 (Ind.1990).

The defendant contends that the first aggravating circumstance, that the defendant recruited others, is not appropriate because the record contains no evidence or information that would support the finding that the defendant recruited the other participants in the crimes and...