Davies v. State

• Decision Date: 28 November 2001
• Docket Number: No. 48A04-0103-CR-102.,48A04-0103-CR-102.
• Citation: 758 N.E.2d 981
• Parties: Joshua James DAVIES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

758 N.E.2d 981

Joshua James DAVIES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A04-0103-CR-102.

Court of Appeals of Indiana.

November 28, 2001.

Richard Walker, Anderson, Indiana, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

MEMORANDUM DECISION

BROOK, Judge.

Case Summary

Appellant-defendant Joshua James Davies ("Davies") appeals the sentence he received after pleading guilty to murder,¹ a felony, burglary² as a Class A felony, and criminal deviate conduct³ as a Class A felony. We affirm.

Issues

Davies raises one issue for review, which we restate as the following three:

I. whether the trial court properly considered certain aggravators and mitigators;

II. whether the trial court properly ordered Davies' sentences to run consecutively; and

III. whether his sentence is manifestly unreasonable.

Facts and Procedural History

At approximately 1:30 a.m. on May 3, 2000, while under electronic monitoring for violating his parole, sixteen-year-old Davies broke into his next-door-neighbor's home by cutting a screen and opening a kitchen window. Davies then unlocked the back door, entered the bedroom of thirteen-year-old J.L., hit her on the head with a hammer, and attempted to rape her. Unable to achieve intercourse, Davies inserted his finger into her vagina. To stop J.L. from screaming, Davies hit her on the head at least three, but as many as eleven, times with the hammer. Sometime during this encounter, J.L.'s screams woke her stepsister, L.H. L.H. rushed to J.L.'s room where Davies hit her in the head with the hammer until she "blacked-out". J.L.'s father awoke and chased Davies as he fled the premises through the unlocked back door, but could not catch him.

J.L. was rushed to the emergency room but died because of multiple blunt force injuries to her head. Soon after the incident, the police apprehended Davies and charged him with criminal confinement, rape, child molesting, burglary, aggravated battery, murder, criminal deviate conduct, and eight counts of death penalty enhancement. On December 27, 2000, Davies pled guilty to murder, burglary, criminal deviate conduct, and aggravated battery.⁴ In accordance with the plea, the State dismissed all but two of the death penalty enhancements and reduced the remaining enhancements to life in prison without parole.

The trial court conducted a bifurcated hearing on February 5, 2001, to determine Davies' intent⁵ and sentence, during which the trial court found as follows:

I think of the mitigators which have been suggested by the defense, [Davies'] age has the greatest weight and the highest significance. First, as has been pointed out, age is a statutory mitigator. Both the Legislature and our Appellate Courts expect that a juvenile's age be given due consideration. The law demands that we acknowledge that a 16-year old is likely to be self-centered, lacking in insight, suffer from poor judgment, be impulsive, at least compared with mature adults. And at the time of this offense, not only was [Davies] 16, not 17 and not 18 as the language of the Statute suggests for purposes of mitigation, but there is some evidence in the record from multiple sources to suggest that emotionally, he was a particularly immature 16-year old.

We've heard a fair amount about Fetal Alcohol Syndrome and Fetal Alcohol Effects [ ("FAE") ]. It's the second mitigator entitled to some weight in this case. There is some evidence that the defendant suffers from an organic brain injury which has been characterized for us as [FAE]. I believe the mitigator, however, should be entitled to minimal weight. First, the [FAE] are mild at best. There's no evidence that they're severe in [Davies'] case. And although mild [FAE] are consistent with problem-solving deficits, impulsivity, high levels of frustration and so forth, as the testimony came out, there is no evidence that mild [FAE] leads to violent sociopathic behavior. While [FAE] may help to explain [Davies], the evidence certainly does not support a conclusion that he committed these horrible crimes because of [FAE]. The Statute relevant here requires a substantial impairment or suggests that a substantial impairment is appropriate when giving weight, at least serious weight to this area of mitigation. And there simply is no evidence of serious mental illness. The professionals have agreed that the generic term "seriously disturbed" may be appropriate, but the professional, more appropriate terms don't apply. [Davies] knows right from wrong. He has an average I.Q. He is not delusional. He is fully oriented. He has no thought disorders.

Concerning parental neglect and abuse, again, I believe that is entitled to minimal weight as a mitigator. At first, I was inclined to reject this proposed mitigator altogether. The evidence is convenient and self-serving. A convenient excuse, at least that was my initial assessment. But, when thinking about this and piecing it together with all the other evidence, the cumulative effect does require, it seems to me, some weight be given to this mitigator. The Babe Ruth Coach witnessed lack of supervision. He reported to us seeing [Davies] out at 2:00 in the morning. "Observed that no one seemed to be there for [Davies]." Counselor at Boot Camp reported, "Couldn't get family involved. [Davies] seemed emotionally detached from his family." Associates and friends of his parents described his parents as "self-consumed, unavailable." His third grade teacher told us his parents were not engaged. Again, many children are unsupervised with parents who are emotionally absent. Few of them commit violent crimes. The language of the Statute is, "Extreme emotional disturbance." The Statute [sic] does not support such a finding. Beyond that, [Davies] has an older sister who, I think we can assume, suffered from the same kind of neglect. She committed no crimes. For that reason, I think neglect and parental abuse is entitled to only minimal weight, but at least some weight.

Remorse and acceptance of responsibility. Boot Camp Counselor told us, "[Davies] shows little remorse for his wrongdoing." [Davies] told Rob Adams [("Adams") ] he wasn't sure how he felt. His evaluation acknowledged that there appears to be a lack of remorse. I think the guilty plea is more likely the result of pragmatism than acceptance of responsibility and remorse. Not including remorse or acceptance of responsibility entitled [sic] to any weight in this case.

With respect to aggravation, an intentional killing has been alleged in Counts VIII [death penalty enhancement for an intentional killing while committing burglary] and X [death penalty enhancement for an intentional killing while committing criminal deviate conduct]. [Davies] has consistently maintained that be broke in to "steal stuff." That is consistent with a pattern of thefts and burglaries that we know about. That's not the end of the inquiry, however, because it is possible that the first blow was intended to knock [J.L.] unconscious, part of a plan to rape, violate her, but as I think Mr. Williams said, even the most immature 16-year old knows the consequences of a repeated series of blows to the head with a steel hammer. It's my conclusion, as it is the Probation Department's of this Court, that at some point, [Davies] made the decision to leave no witness. Killing was intentional. The State has proved its charged aggravator, an aggravator of substantial weight.

There are other aggravators. There are multiple victims in this case. [L.H.], we haven't talked about much, but she was seriously and permanently injured and might have been killed, but for [Davies] being frightened away. Second, there is a pattern of delinquency acknowledged by everyone, including the defendant's Mitigator, and noted by the Probation Department: burglaries, thefts, probation and parole violations, little or no response to intervention efforts. Also, as an aggravator, a murder victim who is a totally defenseless sleeping 13 year old, young, asleep in her own bed, brutally, viciously, sexually assaulted and then murdered. The aggravators substantially outweigh the mitigators.

(Paragraph format altered from original.)

In its written sentencing order, the trial court gave the intentional killing and multiple victim aggravators significant weight and gave moderate weight to Davies' pattern of delinquency and the nature and circumstances of the crime. As for the mitigators, the trial court gave significant weight to Davies' age, minimal weight to FAE and parental neglect and abuse, and no weight to remorse and acceptance of responsibility. Finally, the trial court concluded that the aggravators substantially outweighed the mitigators and sentenced Davies to sixty-two years for murder, twenty years for burglary, and twenty-six years for criminal deviate conduct, to be served consecutively for a total of 108 years.

Discussion and Decision

I. Consideration of Aggravators and Mitigators

We will only reverse a sentence upon a showing of a manifest abuse of discretion. See Allen v. State, 722 N.E.2d 1246, 1250 (Ind.Ct.App.2000)

. In order to enhance a sentence, the trial court is required to "`(1) identify all significant aggravating and mitigating 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.' " Id. (quoting Thacker v. State, 709 N.E.2d 3, 9 (Ind.1999)). A single aggravating factor is sufficient to sustain an enhanced sentence. See Cleary v. State, 638 N.E.2d 431, 434 (Ind.Ct.App. 1994). Finally, our review is not limited to the written sentencing order; we are required to look at the entire record including the sentencing hearing. See Allen, 722 N.E.2d at 1254.

A. Aggravators

Davies does not dispute the trial court's...