Garland v. State

• Decision Date: 24 October 2006
• Docket Number: No. 47A01-0602-CR-65.,47A01-0602-CR-65.
• Citation: 855 N.E.2d 703
• Parties: Kenneth D. GARLAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

855 N.E.2d 703

Kenneth D. GARLAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 47A01-0602-CR-65.

Court of Appeals of Indiana.

October 24, 2006.

Lorraine L. Rodts, Special Assistant to the Public Defender, Bloomington, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ann L. Goodwin, Special Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Kenneth Garland was convicted of two counts of Child Molesting, one as a Class A felony and one as a Class C felony, following a jury trial. On direct appeal, we affirmed his convictions but remanded for resentencing. See Garland v. State, No. 47A04-0407-CR-388, 835 N.E.2d 231 (Ind.Ct.App. Sept. 26, 2005) ("Garland I"). On resentencing, the trial court imposed the same sentence. Garland now appeals the new sentence and raises two issues for our review:

1. Whether the trial court abused its discretion when it used the victim's "tender age" to describe an aggravator.

2. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history as stated in our prior decision are as follows:

[O]n October 12, 2003, Garland was living with his sister, Teresa Caswell ("Caswell"), Caswell's husband, and the Caswells' two children, seven-year-old daughter, C.C., and six-year-old son, M.C. Garland had a bedroom on the second floor of the Caswells' home. Caswell departed the house that morning and left Garland to baby-sit her children. Although Caswell's husband was also there, he was sick in bed in the couple's downstairs bedroom. Caswell returned home unexpectedly early that afternoon, went upstairs, and entered Garland's bedroom. She found M.C. lying on the bed and Garland sitting on a chair with a blanket covering him below the waist. When Garland realized Caswell had entered the room, he jumped. At the same time, C.C. "jumped up" out from under the blanket on Garland's lap. Caswell demanded to know "what the hell was going on." Garland claimed nothing was going on. Caswell asked C.C. the same question. C.C. looked back and forth between Garland and Caswell and said nothing. Garland asked Caswell why she was "acting all crazy" and she responded, "Well, I don't know maybe because I come home and my daughter's head is in your lap." Caswell asked Garland to stand up and he complied. When he did, "a little corner of the blanket fell down and Caswell could see bare hip." Garland refused Caswell's request to move the blanket.

Caswell took the children downstairs and left M.C. with his father in his father's bedroom. Caswell and C.C. went to C.C.'s room and shut the door. After she shut the door, Caswell heard Garland run down the stairs and leave through the back door, which slammed shut. Garland never returned to the house. Caswell again asked C.C. what happened, and at first C.C. claimed nothing had happened. After Caswell assured C.C. that she would not be in trouble if she told the truth, C.C. informed Caswell that Garland was "making C.C. put her mouth on his front privates." C.C. also told her mother that earlier that day, Garland "tried to put his front private in her butt."

On October 22, 2003, the State charged Garland with child molesting as a class A felony. Garland was arrested on November 3, 2003. On that day, Garland gave a voluntary statement in which he admitted that on the day in question, C.C. had placed her mouth on his penis (although he claimed she did this without coercion or prompting), and that earlier the same day he had pulled down C.C.'s panties and rubbed his penis against her. Also, he admitted similar molestations on at least two previous occasions. On April 1, 2004, the State added an additional charge of child molesting as a class C felony, relating to the incident that occurred earlier on October 12.

Garland was found guilty on both counts following a jury trial. The trial court imposed the maximum sentence for each conviction, i.e., fifty years for the class A felony and eight years for the class C felony, and ordered that they be served concurrently, with [six] years suspended.

* * *

[T]he trial court cited the following aggravating circumstances [in enhancing Garland's sentence]: (1) A relatively minor criminal history, which included a history of juvenile delinquent activity, (2) Garland was in need of correctional and rehabilitative services that can best be provided by commitment to a penal facility, (3) the victim was seven years old at the time of the incidents, (4) Garland occupied a position of trust with the victim as an uncle and babysitter, and (5) the court explained: "But I believe there's also a criminal history relating to the multiple abuse admitted by the defendant. He was only charged with the one incident in October, but he confessed that he sexually abused his niece twice before that."

Id. at 2-4, 8 (citations and footnote omitted).

In Garland I, we held that the evidence did not support the trial court's finding that Garland needed corrective and rehabilitative treatment beyond the presumptive term. Id. at 9-11. We further held that the trial court violated Garland's Blakely rights when it enhanced his sentence based upon his two previous molestations of C.C. Id. at 12-13. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, we held that the trial court's use of the defendant's age did not involve improper fact-finding. Specifically, we stated:

The charging information relative to this count alleged:

On or about October 12, 2003, in Lawrence County, State of Indiana, Kenneth D. Garland, being twenty-one years (21) of age or older, to wit: twenty-five (25); did submit to deviate sexual conduct with [C.C.], to wit: had [C.C.] place her mouth on his penis, said child being under the age of fourteen (14), to wit: seven (7).

In finding Garland guilty of that offense, the jury returned the following verdict: "WE THE JURY, FIND THE DEFENDANT, KENNETH GARLAND, GUILTY OF CHILD MOLESTING, A CLASS `A' FELONY, AS ALLEGED IN COUNT I." Reading the charging information and the verdict form together, it is apparent that the jury did indeed find that C.C. was seven years old. ... Moreover, even if we were to find that the trial court here engaged in improper judicial fact-finding, any error therein would be harmless[ ] ... [since] C.C.'s age was not in dispute."

Garland I, slip op., at 11-12 (emphasis added, capitalization in original; citations omitted). We concluded Garland I by noting that:

the record supports four of the aggravating factors found by the trial court, and a single aggravating factor is sufficient to support a sentence enhancement. Nevertheless, [with these four factors] we cannot say with confidence that the trial court would have imposed the same sentence, absent the impermissible aggravator [of the prior molestations]. "[I]t is apparent to us that the impermissible factor ... played an important role in the trial court's decision to enhance" Garland's sentence. McGinity v. State, 824 N.E.2d 784, 789 (Ind.Ct.App. 2005). Put another way, the enhancement imposed here cannot stand without jury findings on the alleged prior molestations.

Id. at 13.

On remand for resentencing, the State chose not to proceed with a jury, and the trial court sentenced Garland to the same sentence it previously had ordered. In its Amended Sentencing Order, the trial court listed the following aggravators: "1) Defendant has a prior criminal and juvenile history, 2) Defendant was in a position of trust, specifically as an uncle and babysitter, 3) Victim was a child under the age of twelve, to-wit: age seven." Appellant's App. at 29. This appeal ensued.

DISCUSSION AND DECISION

Issue One: "Tender Age"

Sentencing decisions are generally within the discretion of the trial court and will only be reversed upon a showing of an abuse of discretion. Marshall v. State, 832 N.E.2d 615, 623 (Ind.Ct.App. 2005), trans. denied. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or if the trial court has misinterpreted the law. Id. The court may increase a sentence or impose consecutive sentences if the court finds aggravating factors. Sherwood v. State, 749 N.E.2d 36, 38 (Ind.2001); Ind. Code § 35-38-1-7.1(b).

Indiana law requires that the trial court take the following steps during sentencing: (1) identify all significant mitigating and aggravating circumstances; (2) specify facts and reasons which lead the court to find the existence of each such circumstance; and (3) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. Id. A single aggravating circumstance is enough to justify an enhancement or the imposition of consecutive sentences. McCann v. State, 749 N.E.2d 1116, 1121 (Ind.2001). Even when the trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. Smith v. State, 770 N.E.2d 818, 822 (Ind.2002). We examine both the written sentencing order and the trial court's comments at the sentencing hearing to determine whether the trial court adequately explained its reasons for the sentence. Vazquez v. State, 839 N.E.2d 1229, 1232 (Ind.Ct.App.2005), trans. denied.

In its Amended Sentencing Order, the trial court repeated the aggravating factor of the victim's age from the original sentencing order. The trial court at the resentencing hearing also orally declared the language in the Amended Sentencing Order. At that hearing, the trial court stated:

The Court finds the following aggravating circumstances: 1) There is a prior criminal and juvenile history; 2) The defendant was in a position of trust.... And number 3) The victim was a child under the...