Hardebeck v. State

• Decision Date: 11 October 1995
• Docket Number: No. 69A01-9407-CR-241,69A01-9407-CR-241
• Citation: 656 N.E.2d 486
• Parties: George Donald HARDEBECK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 486

656 N.E.2d 486

George Donald HARDEBECK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 69A01-9407-CR-241.

Court of Appeals of Indiana.

Oct. 11, 1995.

Transfer Denied Dec. 13, 1995.

Susan K. Carpenter, Public Defender, Kenneth M. Stroud, Special Assistant to the State Public Defender, Cynthia M. Russell, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, Suzann Weber Lupton, Arthur Thaddeus Perry, Deputy Attorneys General, Indianapolis, for appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

We are asked to decide whether George Donald Hardebeck was properly sentenced. Hardebeck murdered five members of his family and now appeals from the 240-year sentence imposed after convictions on his open pleas of guilty but mentally ill. The trial court sentenced Hardebeck to the presumptive 40-year term on one count and enhanced each of the other four counts by ten years to 50-year terms. The court ordered all sentences to be served consecutively for an executed term of 240 years. ¹

We affirm.

ISSUES

Hardebeck presents three issues for review which we restate as follows:

1. Whether the 240-year sentence is manifestly unreasonable.

2. Whether the trial court's sentencing statement supports the 240-year sentence.

3. Whether the trial court added aggravating factors to its written sentencing order after the sentencing hearing and, thus, committed reversible error.

FACTS

On August 24, 1993, George Hardebeck was at home with his mother (Martha), sister (Betty), two brothers (Marlin and Jimmy), and his brother-in-law (Virgil). Hardebeck felt that Betty was picking on him and obtained a pistol from his car. Hardebeck then returned to the porch where he had been sitting with members of his family. When Marlin approached, Hardebeck shot him. Hardebeck's head "felt funny," and he chased Betty and Virgil, shooting at each of them until they collapsed.

Hardebeck returned to the house where he had already shot and killed Jimmy and discovered that Marlin, although wounded, was holding a rifle. He and Marlin struggled for control of the rifle with Hardebeck gaining control. Hardebeck then pursued, shot and killed Marlin. Next, he moved Betty's body and her car to the barn.

Thereafter, Hardebeck shot his 73-year old mother, Martha, twice in the head, moved her body from the kitchen to a bedroom, covered her with a blanket, and mopped her blood from the kitchen floor. He moved Jimmy's body into the basement and hid the rifle in a woodpile. At that time, Hardebeck noticed car lights coming from inside the barn. Although wounded, Betty was attempting to drive away in her car. Hardebeck shot her again, causing her car to run into a tree. Hardebeck then changed his clothing, left his home, and threw his pistol from the window of his car while driving to Kentucky where he was later arrested.

DISCUSSION AND DECISION

Manifestly Unreasonable Standard of Review

The Indiana Constitution grants this court its power to review and revise sentences in criminal cases to the "extent provided by rule." IND. CONST. Art. VII, § 6. This authorization was among the 1970 amendments to the Indiana Constitution which originated in the Report of the Judicial Study Commission (1966). See IND. CONST. Art. VII, § 4 and § 6. ² The Commission explained that "the proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England." Report of the Judicial Study Commission, Comment at 140 (1966).

The English system was established in 1907. Appellate review of a sentence in England is essentially de novo. On appeal, an English court may revise the sentence imposed by the trial court if it determines "that the appellant should be sentenced differently" for any offense and may "quash any sentence or order which is the subject of the appeal" and substitute for that trial court While the English experience inspired the Judicial Study Commission recommendation for appellate review of sentences, unlike the English system, we do not conduct de novo review of a sentence or assess and reweigh the trial court's findings and conclusions. See Bish v. State (1991), Ind., 421 N.E.2d 608, 620. Indiana appellate courts have traditionally given trial courts broad discretion in sentencing and have been reluctant to modify a sentence on appeal, provided it falls within the statutory boundaries and there is no clear evidence of abuse. See J. Eric Smithburn, Sentencing in Indiana: Appellate Review of the Trial Court's Discretion, 12 Val.U.L.Rev. 219, 226 (1978). The rule on appellate review of sentences adopted by our supreme court continues that tradition as it imposes a stringent limitation on the scope of that review. ³ See Appellate Rule 17(B). Accordingly, while this court is routinely involved in the review of sentences, our standard of review remains highly deferential. The determination of the sentence to be given a particular defendant is normally left to the sound discretion of the trial court. See Duvall v. State (1989), Ind., 540 N.E.2d 34, 36.

                sentence "such sentence ... or order as it thinks appropriate for the case."   Criminal Appeal Act 1968, § 11(3);  D.A. Thomas, Appellate Review of Sentences and the Development of Sentencing Policy:  The English Experience, 20 Ala.L.Rev. 193, 196 (1968).  The only limitation upon English appellate review of sentences is that the appellant may not be "more severely dealt with on appeal than he was dealt with by the court below."   Criminal Appeal Act 1968, § 11(3)
                

In reviewing a sentence, we determine whether the sentence was authorized by statute and imposed after a properly conducted presentence hearing. See e.g., IND.CODE § 35-38-1-3. If the sentence falls within those statutory limits, and it is not otherwise prohibited by our state or federal constitutions, Appellate Rule 17(B) allows this court to revise a sentence only upon a finding that the sentence is manifestly unreasonable. In applying this rule, we engage in a two step procedure. In the first step, we determine whether the sentence is disproportionate, that is, whether the sentence is "manifestly unreasonable in light of the nature of the offense and the character of the offender." Walton v. State (1995), Ind., 650 N.E.2d 1134, 1136. If this court determines that manifest unreasonableness may be present, the second step of the analysis requires that we determine whether "no reasonable person could find such sentence appropriate to the particular offense and offender." Id. If such inappropriateness is found, this court will revise a sentence in order to make it reasonable. Id.

Under the limited standard of review imposed by Appellate Rule 17(B), a trial court may impose any number of different sentences which fall within the statutory boundaries and which are, in effect, immune from revision on appeal. Under this regime, applying the procedure described in Walton, we cannot revise a sentence unless we are left with a firm conviction that a mistake has been made which is readily apparent and not subject to reasonable dispute.

Issue One: Manifestly Unreasonable Sentence

Hardebeck contends that the 240-year sentence imposed by the trial court is manifestly unreasonable when his character, the nature of the offenses, and the imposition of consecutive sentences are taken into account. We cannot agree.

Hardebeck urges this court to consider the various facets of his character including his dysfunctional family life, emotional and physical abuse by family members, his mental illness, his service in the Marine Corps, his lack of a prior criminal record, and his remorse for his crimes. Hardebeck emphasizes the possibility of his rehabilitation. He correctly asserts that the primary consideration of the trial court during sentencing is rehabilitation of the defendant. IND. CONST. Art. I, § 18; Abercrombie v. State (1981), Ind., 417 N.E.2d 316, 320.

Even assuming Hardebeck's assertions regarding his character and possible rehabilitation were true, when this court determines whether a sentence is manifestly unreasonable, we must consider not only the character of the defendant but also the nature of the offense. See Walton, 650 N.E.2d at 1136. On a rampage, Hardebeck committed five separate acts of murder. He pursued at least three of his victims and shot them several times. He shot his 73-year old mother twice in the head and after her murder, he moved her body to the bedroom and mopped her blood from the kitchen floor. He moved several of the bodies, hiding them in the basement and garden. He then fled the scene, disposed of the murder weapon and left the state. Therefore, the gravity of Hardebeck's offenses far outweighs his alleged "good character" and any prospect he may have for rehabilitation.

Hardebeck also argues that his sentence is manifestly unreasonable because the terms were ordered to run consecutively, resulting in a 240-year sentence. Again, we cannot agree.

Each count of murder carries a presumptive sentence of 40 years. See IND.CODE § 35-50-2-3(a). Indiana law permits enhancement of that presumptive sentence by as much as 20 years. Id. The trial court enhanced four counts by ten years, to fifty-year terms, and imposed the presumptive 40-year sentence on the other count. The court ordered all counts to run consecutively.

The same statutory aggravating factors may be used to enhance a presumptive sentence and to impose consecutive sentences. See IND.CODE § 35-38-1-7.1(b). Indeed, the same single aggravating factor may be used to support both the enhancement of a presumptive sentence and the imposition of consecutive sentences. Davidson v. State (1990), Ind., 558 N.E.2d 1077, 1092. Moreover, the supreme court has stated that multiple killings clearly support consecutive sentences served for each homicide. Walton, 650 N.E.2d at 1137.

The trial...