Bunch v. State, 79A02-0105-PC-338.

• Decision Date: 16 January 2002
• Docket Number: No. 79A02-0105-PC-338.,79A02-0105-PC-338.
• Citation: 760 N.E.2d 1163
• Parties: Alan BUNCH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

760 N.E.2d 1163

Alan BUNCH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 79A02-0105-PC-338.

Court of Appeals of Indiana.

January 16, 2002.

Earl McCoy, The Law Office of Patrick Harrington, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-petitioner Alan Bunch ("Bunch") appeals the post-conviction court's denial of his successive petition for post-conviction relief ("PCR"). We affirm.

Issues

Bunch raises one issue, which we restate as the following two:

I. whether Bunch has waived the instant challenge to his sentence; and

II. whether the trial court considered improper aggravating factors when enhancing his sentence and failed to find significant mitigators purportedly substantiated by the record.

Facts and Procedural History

On July, 27, 1990, Kim Hostetter ("Hostetter") died at St. Elizabeth Hospital in Lafayette, Indiana, from an overdose of cocaine that Bunch had given to her. The State charged Bunch with a total of eight counts, and on August 15, 1991, Bunch was found guilty of two counts of dealing in cocaine,¹ both as Class A felonies, and four counts of dealing in cocaine,² all as Class B felonies. The trial court's sentencing order reads in relevant part:

The Court finds no mitigating factors.

The Court finds the following aggravating factors: prior contact with the criminal justice system starting back when defendant was a juvenile. December 12, 1979, adjudicated a delinquent child as to Count I and II, involving a burglary; predispositional hearing on February 26, 1980, defendant was placed on probation and sentenced to ten (10) days in jail, suspended, attend school on a regular basis; February 27, 1981 defendant was involved in two counts of battery; March 26, 1981 state filed motion for modification of judgment; predispositional hearing; May 19, 1981 defendant to abide by all previously ordered terms and conditions, including obtaining employment, serving weekends until employment obtained; November 17, 1982 probation terminated. As an adult, on April 2, 1982, defendant was convicted of minor in consumption; April 28, 1982 defendant received 30 days in jail, 6 months probation and a fine; April 20, 1982 defendant charged again, minor consuming alcohol; May 17, 1982, find, 6 months probation, attend New Directions; April 26, 1990 defendant charged with Possession of Marijuana which is pending; December 6, 1990, charge of dealing in marijuana in an amount of more than thirty grams which is pending. Defendant has a history of criminal activity; defendant is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime; defendant has been extensively involved in this community in the sale a marijuana and cocaine; as a circumstance surrounding this incident, the death of Kim Hosteter [sic].

The court finds that the aggravating factors outweigh the mitigating factors.

On September 9, 1991, the trial court sentenced Bunch to fifty years for each of the Class A felonies, with four years suspended, and twenty years for each of the Class B felonies, all to run concurrently.

In a memorandum decision, this court overturned on direct appeal one of Bunch's Class A felony convictions; this reversal did not affect the duration of Bunch's sentence. See Bunch v. State, No. 79A02-9112-CR-539, 594 N.E.2d 847 (Ind. Ct.App. June 18, 1992). On November 16, 1993, Bunch filed a petition for PCR, which the trial court denied on October 5, 1994. We upheld this denial in a memorandum decision. See Bunch v. State, No. 79A04-9501-PC-14, 659 N.E.2d 262 (Ind. Ct.App. Dec.14, 1995). In neither his direct appeal nor his first PCR petition did Bunch raise any sentencing issues. On October 29, 1998, we permitted Bunch to file a successive PCR petition challenging his sentence and alleging ineffective assistance of counsel at trial, on direct appeal, and in his first PCR petition.³ The post-conviction court held a hearing on Bunch's petition and denied it on April 30, 2001. Bunch now appeals from that denial.

Discussion and Decision

I. Waiver

Bunch challenged his sentence in his successive PCR petition, and the State argues in its brief that Bunch waived this issue by failing to raise it in either his direct appeal or his first PCR petition. While it is true that an issue available but not raised on direct appeal can be waived in a subsequent PCR petition, waiver is an affirmative defense that the State must present to a post-conviction court before that court can find waiver. See State v. Eubanks, 729 N.E.2d 201, 205 (Ind.Ct.App. 2000)

(citing Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992)), trans. denied. The State asserted the affirmative defense of waiver in its answer to Bunch's successive PCR petition, but we nevertheless conclude that it did not sufficiently present the affirmative defense before the post-conviction court. In so concluding, we find one fact to be dispositive: that the State failed to argue waiver at the post-conviction hearing.

Our review of the seminal Indiana case on the topic, Langley v. State, 256 Ind. 199, 267 N.E.2d 538 (1971), convinces us that the key factor in preserving waiver for appeal is that the issue be argued to the post-conviction court. See id. at 207 n. 2, 267 N.E.2d at 543 n. 2 ("[I]t would seem that the state is precluded from asserting waiver on appeal where they made no mention concerning it at the hearing on the same basis that an appellant is normally denied the right to raise an issue for the first time on appeal.") (emphasis added); see also id. at 205, 267 N.E.2d at 542 ("It is therefore apparent that upon being properly raised, the matter of waiver and the collateral issues necessarily involved should be of initial concern at the P.C. hearing.") (emphasis added). The Langley court also noted that the State argued the merits at the post-conviction hearing. See id. at 207, 267 N.E.2d at 542-43 ("Where, however, the state, as it did in this case, chooses to meet a petitioner's allegations on their merits at the hearing, we must do likewise on appeal.").

This is not to say, however, that the State forfeits its waiver defense by arguing the merits after the post-conviction court finds, as an initial matter, that waiver does not apply. Cf. Mickens, 596 N.E.2d at 1381

("When a post-conviction court does not find waiver and denies the petition on other grounds, if the petitioner appeals the State can argue waiver in its appellee's brief without filing a cross-appeal on the issue."). Therefore, if the State argues the affirmative defense of waiver at the post-conviction hearing, then the issue is preserved for appeal even if the post-conviction court disposes of the petition on other grounds. Here, because the State failed to argue the affirmative defense of waiver at the post-conviction hearing, it cannot now raise waiver on appeal.

II. Aggravators and Mitigators

Bunch contends that all the aggravating circumstances the trial court considered in enhancing his sentence were improper and that the trial court failed to find three significant mitigators for which there was substantial evidence. Bunch bore the burden of establishing the grounds for relief by a preponderance of the evidence in the post-conviction court. See Ind. Post-Conviction Rule 1(5). The standard of review for sentences is well settled:

Within the applicable statutory and constitutional parameters, sentencing decisions rest within the sound discretion of the trial court and are reversed only for an abuse of that discretion. The sentencing statement must identify the significant aggravating and mitigating circumstances; identify the facts that led the trial court to find each circumstance; and show that the aggravating and mitigating circumstances have been balanced.

Harrison v. State, 699 N.E.2d 645, 650 (Ind.1998) (citations omitted). We will address each aggravator and proposed mitigator in turn to determine if the trial court abused its discretion by not acting within the applicable statutory parameters.

A. Aggravators

The trial court found as aggravators that Bunch was "in need of correctional or rehabilitative treatment that c[ould] best be provided by commitment to a penal facility" and that "imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime." Bunch argues, and the State concedes, that the trial court improperly considered these aggravating factors. We agree. Because the trial court merely recited the language of Indiana Code Section 35-38-1-7.1(b)(3) and specified no reasons why Bunch needed extended correctional and rehabilitative treatment, its consideration of the first factor was improper. See Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind.1996)

(holding that trial court's consideration of this factor was improper when "[t]he trial court gave no specific or individualized statement of the reason why this defendant was in need of correctional and rehabilitative treatment that could best be provided by a period of incarceration in a penal facility in excess of the presumptive sentence term."). In addition, while "a trial court may consider as an aggravating factor the possibility that a reduced sentence might depreciate the seriousness of a crime[,] .... this factor `may be used only when considering the imposition of a sentence of shorter duration than the presumptive sentence.'" Mitchem v. State, 685 N.E.2d 671, 679 (Ind.1997) (citation omitted). There is no indication in the record that the trial court ever considered giving Bunch less than the presumptive sentence in this case, so its consideration of this factor was...