Clippinger v. State, 71S00–1510–LW–590.

• Decision Date: 28 June 2016
• Docket Number: No. 71S00–1510–LW–590.,71S00–1510–LW–590.
• Citation: 54 N.E.3d 986
• Parties: Steven CLIPPINGER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

54 N.E.3d 986

Steven CLIPPINGER, Appellant (Defendant below)

v.STATE of Indiana, Appellee (Plaintiff below).

No. 71S00–1510–LW–590.

Supreme Court of Indiana.

June 28, 2016.

Thomas P. Keller, South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kelly A. Loy, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MASSA

, Justice.

Steven Clippinger murdered his brother and sister-in-law and was sentenced to two terms of life imprisonment without parole, with an additional term of twenty years for his conviction as a serious violent felon in possession of a firearm, all to be served consecutively. Clippinger appeals the sentence only, claiming that the trial court was without statutory authorization to impose consecutive life sentences, and that the trial court's sentencing order in this case was inadequate. We agree with Clippinger's second contention, but find the sentence imposed was proper, and thus exercise our appellate prerogative to sentence Clippinger to two consecutive terms of life imprisonment without parole, and affirm the additional consecutive term of twenty years imprisonment for the firearm possession conviction.

Facts and Procedural History

Clippinger was first convicted of murder in 1990, at the age of 18, and served twenty years in prison, being released from parole in 2010. Just two years later, in June 2012, Clippinger's brother Matthew took from him a .38 caliber revolver and refused to give it back. Clippinger was not permitted to possess a firearm due to his prior conviction. Clippinger returned to Matthew's home later that night, and shot him in the driveway multiple times, including two crippling shots in the lower back. And after shooting Matthew, Clippinger repeatedly pistol-whipped him in the head, causing multiple blunt force injuries. Clippinger then fired at Matthew's wife Lisa when she came to the garage to investigate; she then fled back into the house, and Clippinger chased after her and killed her. Matthew and Lisa's two children, ages 12 and 20, were present and called the police. Clippinger fled the scene, running past the then-still-alive Matthew, who later died from his injuries, but not before reporting to police that he had been shot by “my own brother.” Tr. at 111. Clippinger was apprehended shortly thereafter, in possession of the firearms which killed Matthew and Lisa.

After a bench trial, Clippinger was convicted of two counts of murder and of being a serious violent felon in possession of a firearm. At a separate sentencing phase, the State presented evidence of two statutory aggravators, including the prior murder conviction, and Clippinger presented evidence in mitigation. The trial court sentenced Clippinger to serve two life sentences without parole consecutively; and, after a subsequent sentencing hearing, imposed an additional 20–year sentence for being a serious violent felon in possession of a firearm, also to run consecutively.

On direct appeal, Clippinger did not challenge his convictions, but only the circumstances of sentencing, claiming: (1) Indiana law did not permit a trial court to impose consecutive sentences of life imprisonment without parole; (2) the sentencing order was insufficient because it failed to specifically identify mitigating factors and balance them against the aggravating factors; and (3) it was improper to conduct a further sentencing hearing after the sentence of life without parole had already been imposed. Before considering the merits, this Court remanded for a revised sentencing order in light of its recent decision in Lewis v. State, which affirmed that when imposing a sentence of life imprisonment without possibility of parole or a sentence of death, the trial court must make specific findings in accordance with the four factors described in Harrison v. State, 644 N.E.2d 1243 (Ind.1995)

and Pittman v. State, 885 N.E.2d 1246 (Ind.2008), and which also held that the applicable sentencing statute “does not require a trial court to impose no less than a sentence of life without possibility of parole if [it finds the aggravators outweigh the mitigators].” 34 N.E.3d 240, 249 n. 8 (Ind.2015) (emphasis in original). The trial court then issued a Revised Order on remand, containing headings consistent with the requirements of Harrison, Pittman and Lewis , and ultimately continued to impose all three sentences consecutively, including the two sentences of life imprisonment without parole. No new argument was made by either party on remand. The parties were invited to submit supplemental briefing as to any new or different issues raised by the Revised Order, but declined to do so. Accordingly, we find that the Revised Order has mooted Clippinger's third contention on appeal, and shall address the remaining two.

Standard of Review

“We have long said that sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.2008)

. Accordingly, “[a] trial court's sentencing order will be reviewed for an abuse of discretion.” Rice v. State, 6 N.E.3d 940, 943 (Ind.2014) (citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007) ). If, however, “the issue presented on appeal is a pure question of law, we review the matter de novo.” State v. Holloway, 980 N.E.2d 331, 334 (Ind.Ct.App.2012) (quoting State v. Moss–Dwyer, 686 N.E.2d 109, 110 (Ind.1997) ).

A Sentence of Life Without Parole Is a “Term of Imprisonment” Pursuant to Indiana Code Section 35–50–1–2(c)

.

Clippinger claims that the trial court abused its discretion in imposing consecutive life sentences under Indiana Code section 35–50–1–2(c)

(2014) ( “Section 2(c)”),¹ citing our recent decision in Isom v. State that consecutive death sentences exceed the statutory authority granted trial courts under Section 2(c) to impose consecutive sentences for “terms of imprisonment”:

A “term of imprisonment” is a penalty under which the convict is sent to incarceration for some period (such as two years or five to ten years) and then released after the period has passed. Execution is a penalty of a radically different sort. It features incarceration only while appellate processes persist and does not contemplate a future release into society.

Appellant's Br. at 11 (quoting Isom v. State, 31 N.E.3d 469, 495 (Ind.2015)

and State v. Price, 715 N.E.2d 331, 332 (Ind.1999) ). Clippinger claims that a life sentence is akin to a death sentence because it too lacks a “contemplated future release into society,” and the period of incarceration is for an indefinite term; thus it is not a “term of imprisonment” under Section 2(c). Appellant's Br. at 11–12. The State contends, however, that life imprisonment is more akin to a term of years because incarceration pending execution is merely a tool “to house the person during the appellate process” whereas life imprisonment is “for a set period of incarceration, i.e. for the duration of the offender's life.” State's Br. at 10.

Clippinger's position is not without intuitive merit; indeed, sentences of life without parole and death are both subject to the same unique trial procedures under our statutory scheme,² and these two criminal sentences are the only kind subject to mandatory appellate review by this Court.³ And we demand the same level of particularity in the trial court's sentencing order for both life without parole and death sentences. See Pope v. State, 737 N.E.2d 374, 382 (Ind.2000)

(“A sentence of life without parole is subject to the same statutory standards and requirements as the death penalty.”).

Here, however, we are faced with a far narrower question than the existential difference between life in prison and a death sentence; rather, we are asked to determine the scope of an applicable sentencing statute, Section 2(c). We begin by noting that it is facially ambiguous whether a sentence of life without parole constitutes a term of imprisonment because that phrase is susceptible to more than one reasonable interpretation, and thus Section 2(c) is “open to judicial construction.” Thatcher v. City of Kokomo, 962 N.E.2d 1224, 1227 (Ind.2012)

. “When faced with an ambiguous statute, our primary goal is to determine, give effect to, and implement the intent of the Legislature with well-established rules of statutory construction.” Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind.2015). “[W]e assume that the language in a statute was used intentionally and that every word should be given effect and meaning.... And statutes concerning the same subject matter must be read together to harmonize and give effect to each.” Merritt v. State, 829 N.E.2d 472, 475 (Ind.2005) (footnotes omitted).

The crux of the issue is whether the legislature intended a sentence of life without parole to fit within the definition of a “term of imprisonment.” The statute under which Clippinger was sentenced, Indiana Code section 35–50–2–9(g)

, provides the clearest indication of that intent: “If the hearing is to the court alone ... the court shall: (1) sentence the defendant to death; or (2) impose a term of life imprisonment without parole; only if it makes the findings described in subsection (l ).” Given that the sentence of life imprisonment without parole is expressly labeled a “term” of imprisonment, the most logical reading of Section 2(c) is, therefore, that it permits consecutive life sentences. Indeed, we have tacitly recognized the availability of such consecutive sentencing, though we have never directly addressed the issue. See, e.g.,

Sallee v. State, 51 N.E.3d 130, 133, 135 (Ind.2016) (affirming conviction where defendant was sentenced to “life without parole for each of the four counts of murder, with the sentences to run consecutively”); Pope, 737 N.E.2d at 377 (noting that the trial court had imposed “two consecutive life sentences without parole,” but reversing the sentence and remanding on other grounds).

Moreover, life imprisonment...