Gillem v. State
| Decision Date | 21 June 2005 |
| Docket Number | No. 29A02-0407-CR-544.,29A02-0407-CR-544. |
| Citation | 829 N.E.2d 598 |
| Parties | Boyd GILLEM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Teresa D. Harper, Bloomington, for Appellant.
Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, for Appellee.
Boyd Gillem appeals the sentence imposed following his plea of guilty to two counts of causing death when operating a motor vehicle with a blood-alcohol content of .08 or greater, as class B felonies,1 and one count of causing serious bodily injury when operating a motor vehicle with a blood-alcohol content of .08 or greater, as a class C felony.2
We affirm.
1. Whether the trial court properly evaluated aggravating and mitigating circumstances.
2. Whether Gillem's sentence violates his constitutional rights as set forth in Blakely v. Washington.
3. Whether Gillem's sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
On August 4, 2001, Gillem and his wife, Lisa, went to the Indianapolis Speedway, where they consumed several cans of beer. Before leaving, Gillem purchased a thirty-two ounce can of beer to drink on the way home. Gillem and his wife then headed home, with Gillem driving their Chevrolet Tahoe. Gillem failed to stop at a stop sign at the intersection of 276th Street and Anthony Road, in Hamilton County. Gillem was driving approximately fifty-five miles per hour. Gillem's vehicle struck the driver's side of a pick-up truck driven by Everett "Hal" Wallace. Hal's daughter, Patricia Butcher, and son-in-law, Larry Butcher, were passengers in the pick-up truck. Upon impact, the pick-up truck burst into flames. All three occupants of the pick-up truck sustained severe burns. Hal and Patricia later died from their injuries.
A blood-alcohol test showed that Gillem had a blood-alcohol content of .093 grams. On October 19, 2001, the State charged Gillem with two counts of causing death when operating a motor vehicle with a blood-alcohol content of .08 or greater; two counts of causing death when operating a motor vehicle while intoxicated; one count of causing serious bodily injury when operating a motor vehicle with a blood-alcohol content of.08 or greater; and one count of causing serious bodily injury when operating a motor vehicle while intoxicated.
On or about April 1, 2004, Gillem and the State entered into a plea agreement. Gillem agreed to plead guilty to two counts of causing death when operating a motor vehicle with a blood-alcohol content of .08 or greater, as class B felonies, and one count of causing serious bodily injury when operating a motor vehicle with a blood-alcohol content of .08 or greater, as a class C felony. The plea agreement left the determination of the sentence within the trial court's discretion. The plea agreement also stipulated in pertinent part:
1) the sentences shall be run concurrent to one another in all respects;
2) the portion of the sentence which the Court orders to be executed may not exceed ten (10) years in the Department of Correction;
3) the portion of the sentence which the Court orders to be suspended shall not be limited, except by I.C. 35-50-2-5;
4) the Court may impose terms and condition of probation as the Court finds appropriate, but the term of probation shall not exceed three years[.]
(App.274-75).
The presentence investigation report showed that Gillem had three prior misdemeanor convictions for operating a motor vehicle while intoxicated in 1983, 1990, and 1999. Gillem received probation for all three convictions. As a condition of his 1999 conviction, Gillem received outpatient substance-abuse treatment and completed twenty-three sessions. The presentence investigation report also showed that Gillem received inpatient counseling for driving under the influence in 1989.3
The trial court held a sentencing hearing on May 27, 2004. During the sentencing hearing, Gillem, by counsel, stated that the counseling received in 1989 was outpatient, not inpatient, as reflected in the presentence investigation report. Gillem had no other additions or corrections to make to the presentence investigation report.
The trial court found the following aggravating circumstances: (1) a history of criminal activity; (2) the need for correctional or rehabilitative treatment best provided by commitment to a penal facility; (3) imposition of a reduced sentence would depreciate the seriousness of the crime; (4) one of the victims was seventy-four (74) yearsold; and (5) Gillem did not seek treatment, the proximity in time to Gillem's last offense and the risk of re-offending. The trial court found one mitigating circumstance: that Gillem appeared to be remorseful. The trial court then found that the aggravating circumstances outweighed the mitigating circumstance.
For each count of causing death when operating a motor vehicle with a blood-alcohol content of .08 or greater, the trial court sentenced Gillem to twenty (20) years, with ten (10) years suspended, and placed Gillem on probation for a period of three (3) years. For the count of causing serious bodily injury when operating a motor vehicle with a blood-alcohol content of .08 or greater, the trial court sentenced Gillem to eight (8) years. The trial court ordered the sentences to run concurrently.
Gillem argues that the trial court considered improper aggravating circumstances, overlooked significant mitigating circumstances, and failed to balance the aggravating and mitigating circumstances.
When a trial court imposes a sentence based upon aggravating or mitigating circumstances, it must include in the record a statement of its reasons for selecting a particular sentence. I.C. § 35-38-1-3. The sentencing statement must include the following elements: (1) all significant aggravating and mitigating circumstances; (2) the reason why each circumstance is determined to be mitigating or aggravating; and (3) a demonstration that the mitigating and aggravating circumstances have been evaluated and balanced. Harris v. State, 824 N.E.2d 432, 440 (Ind.Ct.App.2005).
Gillem contends that the trial court considered improper aggravating circumstances.
Gillem argues that the trial court improperly found the need of correctional or rehabilitative treatment best provided by a penal facility to be an aggravating circumstance because the trial court was required to explain "why this is so and why a sentence in excess of the presumptive sentence is necessary." Gillem's Br. 7 (citing Powell v. State, 751 N.E.2d 311 (Ind.Ct.App.2001) (emphasis in original).
When a court identifies a defendant's need for correctional and rehabilitative treatment at a penal facility as an aggravating factor, it must "explain why the defendant requires treatment beyond the presumptive sentence." Bailey v. State, 763 N.E.2d 998, 1004 (Ind.2002). Here, the trial court noted that "the prior attempts of probation and court ordered counseling have been unsuccessful and the Court is unsure of exactly what will deter [Gillem] from this behavior except through penal incarceration." Tr. 85. Thus, Gillem's claim that the court failed to explain its reasoning for that aggravator lacks merit.4
Gillem also contends that the trial court erred in finding as an aggravating circumstance that imposition of a reduced sentence would depreciate the seriousness of the crime. This factor may be used to support a refusal to reduce the presumptive sentence. Leffingwell v. State, 793 N.E.2d 307, 310 (Ind.Ct.App.2003). Thus, it is an appropriate aggravator only where the trial court is considering a reduced sentence. Thompson v. State, 793 N.E.2d 1046, 1053 (Ind.Ct.App.2003). There is nothing in the record indicating that the trial court considered imposing a reduced sentence. Therefore, the trial court erred to the extent it used this factor to enhance Gillem's sentence.
Gillem contends the trial court failed to consider two mitigating circumstances: that he pled guilty and his incarceration would cause hardship to his family. The trial court must consider all evidence of mitigating circumstances presented by a defendant. Sipple v. State, 788 N.E.2d 473, 480 (Ind.Ct.App.2003), trans. denied. The finding of mitigating circumstances, however, rests within the sound discretion of the trial court. Id. The failure to find a mitigating circumstance clearly supported by the record may imply that the trial court overlooked the circumstance. Id. The trial court, however, is not obligated to consider "alleged mitigating factors that are highly disputable in nature, weight, or significance." Id. Furthermore, the trial court need not agree with the defendant as to the weight or value to be given to proffered mitigating circumstances. Id.
Gillem contends that trial court erred by failing to consider his guilty plea. A guilty plea, however, is not automatically a mitigating factor, and a defendant is not entitled to have it weighed as he suggests. Hedger v. State, 824 N.E.2d 417, 420 (Ind.Ct.App.2005).
In this case, Gillem did not enter into a plea agreement until April of 2004, more than two years subsequent to his offense, and after Gillem filed numerous motions. Thus, the State spent significant time and resources on this case. Accordingly, the trial court did not abuse its discretion in according no weight to Gillem's guilty plea.5 See Gray v. State, 790 N.E.2d 174, 177-80 (Ind.Ct.App.2003) ().
Gillem further contends that the trial court erred by failing to consider the hardship Gillem's incarceration would impose on his family. The trial court noted that...
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