Edrington v. State

• Decision Date: 23 July 2009
• Docket Number: No. 84A04-0812-CR-739.,84A04-0812-CR-739.
• Citation: 909 N.E.2d 1093
• Parties: John EDRINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

909 N.E.2d 1093

John EDRINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 84A04-0812-CR-739.

Court of Appeals of Indiana.

July 23, 2009.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

John Edrington appeals the sentence imposed after his plea of guilty to two counts of child molesting as Class A felonies.¹ He argues the trial court considered invalid or unsupported aggravators when it enhanced his sentence five years beyond the presumptive² thirty years and his sentence is inappropriate based on his character and the nature of his offense. We affirm.

FACTS AND PROCEDURAL HISTORY

In October 2007, Edrington was charged with two counts of Class A felony child molesting for acts committed against E.D.P. between January 2000 and August 2002, when she was between the ages of eight and eleven. In January 2008, Edrington was charged under a separate cause number with one count of Class A felony child molesting for acts between January 2000 and August 2002 involving L.J.E., who was between the ages of seven and nine.

Edrington agreed to plead guilty to one count of molesting E.D.P. and one count of molesting L.J.E. In exchange, the State would dismiss the remaining Class A felony and agree that any sentences imposed would be served concurrently. The agreement left the parties otherwise free to argue at sentencing.

The trial court recognized as mitigating factors Edrington's minimal criminal history and his decision to plead guilty. The trial court enhanced Edrington's sentences beyond the thirty-year presumptive³ to thirty-five years on each count, to be served concurrently, based on two aggravators: the victims' tender ages and Edrington's violation of a "position of care" (Tr. IV at 21). The trial court called the latter "the big aggravator and I think that outweighs the mitigators." (Id.)

DISCUSSION AND DECISION⁴

1. Abuse of Discretion

Edrington contends the trial court considered invalid or improper aggravators when it sentenced him to concurrent thirty-five year sentences.

Under the presumptive sentencing scheme, if the trial court imposed a sentence in excess of the statutory presumptive sentence, it was obliged to identify and explain all significant aggravating and mitigating circumstances and explain its balancing of the circumstances. Rose v. State, 810 N.E.2d 361, 365 (Ind.Ct.App. 2004). Sentencing determinations are within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. Henderson v. State, 848 N.E.2d 341, 344 (Ind.Ct.App.2006). Therefore, we will not modify a sentence unless it is clear the decision was "against the logic and effect of the facts and circumstances before the court." Rose, 810 N.E.2d at 365.

The trial court improperly considered the victims' age as an aggravator. When a victim's age is a material element of the crime, it may not also support an enhanced sentence. Reynolds v. State, 575 N.E.2d 28, 32 (Ind.Ct.App.1991), trans. denied. The age of the victim is an element of the offense of child molesting. Edrington was charged under Ind.Code § 35-42-4-3(a), which applies to victims under fourteen years old.

The State notes that in some instances the "tender age" of a victim in a child molesting case may be considered an aggravating factor as a particularized circumstance of the crime. Kien v. State, 782 N.E.2d 398, 414 (Ind.Ct.App.2003) (citing Buchanan v. State, 767 N.E.2d 967, 971 (Ind.2002)), reh'g denied, trans. denied 792 N.E.2d 47 (Ind.2003). There was no finding of any such "particularized circumstance" in the case before us; the trial court noted only that both victims were under twelve. We accordingly find the trial court could not consider this element of the crime as an independent "particularized circumstance of the crime" aggravator. See Kien, 782 N.E.2d at 414 (the age of a victim of child molesting was a proper aggravator when the trial court not only relied on the victim's age, but specifically noted the four or five-year-old child was "extremely vulnerable to sexual predation because of her `tender years.'").

Even if a trial court improperly applies an aggravator, a sentence enhancement may be upheld when there is another valid aggravating circumstance. Hatchett v. State, 740 N.E.2d 920, 929 (Ind.Ct.App. 2000), trans. denied 753 N.E.2d 8 (Ind. 2001). The second aggravating factor in this case, that Edrington was in a "position of care," (Tr. IV at 21), permits an enhanced sentence. See Ridenour v. State, 639 N.E.2d 288, 298 (Ind.Ct.App.1994) (a position of trust by itself is a valid aggravating factor on which the court could properly enhance defendant's sentence). The record supports the determination Edrington was in a position of trust or care.⁵

Before addressing this aggravator, we must address certain arguments the State offers with regard to the availability of evidence to support the aggravator. The State first appears to argue, without explanation or citation to authority, that Edrington is barred from challenging the aggravator on appeal because he did not object, after the court pronounced sentence, to that characterization of his relationship with the victims. We decline to consider that assertion. See Overstreet v. State, 877 N.E.2d 144, 178 (Ind.2007) (allegation of error waived on appeal when not supported with authority and cogent argument), reh'g denied, cert. denied ___ U.S. ___, 129 S.Ct. 458, 172 L.Ed.2d 331 (2008).

The only evidence of a "position of care" the State directs us to on appeal is from Edrington's presentence investigation report (PSI) and some attached documents. Edrington apparently never admitted to the accuracy of that information,⁶ but the State asserts that information provides a basis for the "position of care" aggravator because Edrington did not affirmatively challenge it:

The defendant has the onus of pointing out factual discrepancies among the allegations in the presentence report.... Because the defendant failed to challenge the assertion in the PSI that the victims were the Defendant's eight or nine-year-old stepdaughter and her seven-year-old friend, those facts were established for the court's consideration.

(Br. of Appellee at 7.)

The State is wrong. It cites for this premise Carter v. State, 711 N.E.2d 835, 840 (Ind.1999), but Carter is inapposite because there both Carter and his counsel indicated that they had reviewed the report and said they were aware of no errors in it. Id. It also directs us to Gardner v. State, 270 Ind. 627, 634, 388 N.E.2d 513, 517-18 (Ind.1979), where our Supreme Court said "the assertions in the [PSI] report will be accepted as true unless challenged by the defendant."

The Gardner holding cannot be reconciled with more recent statements by our Supreme Court and this court. In Thomas v. State, 840 N.E.2d 893, 903 (Ind.Ct. App.2006), trans. denied 855 N.E.2d 1004 (Ind.2006), an aggravating factor found by the trial court was that Thomas occupied a position of trust in the victim's life. We acknowledged that abusing a position of trust can be a valid aggravating circumstance, but noted the jury, in finding Thomas guilty of child molesting, was not required to find Thomas was in a position of trust. Thomas did not testify during his trial, and thus never admitted that he was in a position of trust with regard to the victim. Instead, the trial court relied on the presentence investigation report, which indicated Thomas was the victim's stepfather.

At the sentencing hearing, the trial court asked Thomas whether he wanted to make any changes or corrections to the presentence report.⁷ Thomas offered several corrections but never challenged the fact that he was married to the victim's mother. We recognized authority stating a failure to object to or make any factual challenge to a PSI was tantamount to an admission to its accuracy, but noted:

[O]ur supreme court has recently cautioned that "using a defendant's failure to object to a presentence report to establish an admission to the accuracy of the report implicates the defendant's Fifth Amendment right against self-incrimination." Ryle v. State, (Ind.2005). Bearing this in mind, we conclude that Thomas' failure to challenge the fact that he was married to D.N.'s mother does not constitute an admission that he was in a position of trust. Therefore, because the jury did not find and Thomas did not admit that he was in a position of trust, the trial court's reliance upon this fact to enhance Thomas' sentences violated Thomas' Sixth Amendment right to trial by jury.

840 N.E.2d at 903. Similarly, a violation of Edrington's Fifth and Sixth Amendment rights would have been implicated had the trial court relied, as the State suggests, solely on Edrington's failure to object to facts in or attached to his pre-sentence report as evidence of Edrington's position in relation to the victims.⁸ We decline the State's invitation to disregard those rights by imposing on this defendant an obligation he no longer has, and we accordingly will not consider the information in the PSI.

The standard our Supreme Court articulated in Ryle and we applied in Thomas does not apply to all information in a PSI. In Blakely v. Washington, 542 U.S. 296, 302, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004), the Supreme Court held "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." But in Robertson v. State, 871 N.E.2d 280, 287 (Ind.2007), our Supreme Court concluded Robertson's probation violation, although not found by a jury or admitted by him, could properly be relied on to enhance Robertson's sentence. It relied on...