Gregory v. State
| Decision Date | 14 December 1994 |
| Docket Number | No. 20S04-9412-CR-1209,20S04-9412-CR-1209 |
| Citation | 644 N.E.2d 543 |
| Parties | Jeffrey O. GREGORY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Michael A. Dvorak, Hahn, Walz, Knepp, Dvorak and Higgins, South Bend, for appellant.
Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.
As the result of a government sting operation, appellant Jeffrey Gregory was convicted of four counts of selling cocaine to the same police informant. The court sentenced him to the presumptive term of thirty years on each count, to be served consecutively. Consecutive sentences are not appropriate when the State sponsors a series of virtually identical offenses.
In early 1990, two officers from the Elkhart County Drug Task Force arranged for a former drug dealer to act as a police informant in a sting operation. The target was Jeffrey Gregory. Within the ten day period from February 26 to March 7, the informant made four separate purchases of approximately forty-two grams of cocaine from Gregory. Each transaction involved the same informant buying the same drug.
A jury eventually convicted Gregory on four counts of delivery of more than three grams of cocaine, a class A felony. Ind.Code Ann. § 35-48-4-1 (West Supp.1989). The trial court sentenced him to 120 years in prison.
The Court of Appeals upheld Gregory's convictions but found that "the sentencing court inadequately set forth the court's consideration of the facts of the specific crimes and the relation of the sentence to the objectives to be served by the 120 year sentence." 1 Gregory v. State (1992), Ind.App., 604 N.E.2d 1240, 1241. It remanded "with instructions to enter a specific and individualized statement to support consecutive sentences or to impose concurrent sentences." Id. at 1241-42.
On remand, the trial court again imposed the same sentence but expanded upon its explanation for the consecutive terms. 2 The Court of Appeals remanded once more, holding that the court's "very limited statement concerning the nature and circumstances of the instant crime is not adequate." Gregory v. State, 638 N.E.2d 845 (Ind.App. Aug. 11, 1994). We grant transfer and vacate the opinion of the Court of Appeals.
If a trial court finds aggravating or mitigating circumstances that justify variance from the presumptive sentence, the record must disclose "the court's reasons for selecting the sentence that it imposes." Ind.Code Ann. § 35-38-1-3 (West 1986). Among the factors a court may consider when enhancing a sentence or ordering consecutive terms are the following: (1) the person recently violated probation; (2) the person has a history of criminal or delinquent activity; (3) the person is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; and (4) the imposition of a reduced sentence would depreciate the seriousness of the crime. Ind.Code Ann. § 35-38-1-7.1 (West Supp.1991).
A trial court must justify its enhancement of a sentence with more than a mere list of the aggravating circumstances. Farina v. State (1982), Ind., 442 N.E.2d 1104, 1106. The court must explain the reasoning and logic underlying its sentence. Page v. State (1981), Ind., 424 N.E.2d 1021; Smith v. State (1986), Ind., 491 N.E.2d 193. The sentencing court should (1) identify the significant aggravators and mitigators, (2) relate the specific facts and reasons which lead the court to find those aggravators and mitigators, and (3) demonstrate that it has balanced the aggravators against the mitigators in reaching its sentence. Slaton v. State (1987), Ind., 510 N.E.2d 1343, cert. denied, 506 U.S. 894, 113 S.Ct. 268, 121 L.Ed.2d 197 and 506 U.S. 921, 113 S.Ct. 337, 121 L.Ed.2d 254 (1992).
In the instant case, the court gave a complete description of Gregory's probation violations and commented on the convictions underlying his probation. The court also discussed Gregory's prior criminal history at some length, including two failures to appear in the Elkhart County Court and five misdemeanor convictions. The court reasoned that taken singly the misdemeanors would not aggravate the sentence, but that collectively they demonstrated a "disregard for the law." R. at 71. Finally, the court stated generally that the defendant needed to be incarcerated and that reduced or concurrent sentences would depreciate the seriousness of the crimes. The court affirmatively and sufficiently articulated its reasons behind at least two of the aggravators. We conclude that the sentencing statement was adequate.
This does not end our inquiry. Gregory also claims that consecutive sentences for these offenses are manifestly unreasonable. We agree.
The Indiana Constitution expressly provides this Court with the power "to review and revise" sentences. Ind. Const. art VII, § 4. Because the trial court has the discretion to determine that aggravating circumstances call for an enhanced sentence or consecutive terms, Jones v. State (1992), Ind., 600 N.E.2d 544, we exercise this power sparingly.
In a case with similar facts, we held consecutive sentences manifestly unreasonable where the state sponsors a series of offenses in a sting operation. Beno v. State (1991), Ind., 581 N.E.2d 922. In Beno, the defendant was convicted of selling cocaine to a police informant on two occasions within a four day period. The buys were virtually identical, involving the same drug and the same informant. The trial count enhanced both sentences to fifty years and ordered them to run consecutively. We revised the sentence to two enhanced terms of fifty years, to run concurrently. Id. at 924.
As in Beno, Gregory sold...
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