Hildebrandt v. State

• Decision Date: 07 June 2002
• Docket Number: No. 82A01-0108-CR-311.,82A01-0108-CR-311.
• Citation: 770 N.E.2d 355
• Parties: David Keith HILDEBRANDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

770 N.E.2d 355

David Keith HILDEBRANDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-0108-CR-311.

Court of Appeals of Indiana.

June 7, 2002.

Jon Aarstad, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

David Keith Hildebrandt ("Hildebrandt") was convicted of two counts of sexual misconduct with a minor,¹ as Class B felonies, in Vanderburgh Superior Court. Hildebrandt was sentenced to serve twelve years executed on each count, and the trial court ordered the sentences to run consecutively. Hildebrandt appeals raising two issues, which we restate as:

I. Whether the trial court improperly relied on victim impact evidence as an aggravating factor to enhance Hildebrandt's sentence; and,

II. Whether Hildebrandt's sentence was manifestly unreasonable in light of the nature of the offense and character of the offender.

We affirm.

Facts and Procedural History

On May 29, 2000, M.L. and K.M. were drinking alcohol and smoking cigarettes while sitting in K.M.'s father's boat, which was parked on K.M.'s father's property. Both M.L. and K.M. were fourteen-years old. At some point that evening, Hildebrandt was riding his bicycle and stopped to speak with M.L. and K.M. Hildebrandt was twenty-two-years old. M.L. told Hildebrandt that she went to school with his sister, and that she was fourteen-years old. Tr. pp. 18-19.

Eventually, M.L., K.M., and Hildebrandt went to K.M.'s "hangout," which was a converted garage attached to K.M.'s mother's house. Upon arriving at the "hangout," they all sat on K.M.'s waterbed, and K.M. began discussing oral sex. K.M. told Hildebrandt how many times she had performed oral sex, and he told her that she could perform oral sex on him, which she did. Tr. pp. 22-23. Hildebrandt then asked M.L. to have sexual intercourse with him. M.L. told Hildebrandt that she was scared and had never had sexual intercourse before, but eventually she did consent and they engaged in sexual intercourse. Tr. p. 25.

A few days later, K.M. was driving her father's pickup truck late at night when she observed Hildebrandt riding his bicycle. She stopped to speak with him. During their conversation, K.M. told Hildebrandt that she went to school with his sister and had just turned fourteen a few days prior. Tr. p. 75.

On June 5, 2000, K.M. was again driving her father's pickup truck when she saw Hildebrandt riding his bicycle. She stopped to speak to him, and they had a conversation regarding K.M.'s self-consciousness about her weight. Tr. p. 77. Hildebrandt asked K.M. if she wanted to have sexual intercourse, K.M. informed Hildebrandt that she was scared that it might hurt, and that she had never had sexual intercourse before, but eventually agreed to do so. Tr. p. 78. They then went to K.M.'s "hangout" and engaged in sexual intercourse.

On September 20, 2000, Hildebrandt was charged with three counts of sexual misconduct with a minor, as Class B felonies. In Count I, the State alleged that Hildebrandt submitted to sexual deviate conduct with K.M. by placing his penis in K.M.'s mouth. Counts II and III alleged that Hildebrandt performed sexual intercourse on M.L. and K.M. respectively. After a two-day jury trial, the jury found Hildebrandt not guilty of Count I, but guilty of Counts II and III. Hildebrandt was sentenced to serve twelve years executed for each count, and the trial court ordered the sentences to run consecutively. He appeals. Additional facts will be provided as necessary.

I. Victim Impact Evidence

Hildebrandt first argues that when it imposed enhanced and consecutive sentences for his two Class B felony convictions, the trial court improperly relied on victim impact evidence and did not explain why the impact in the case at hand exceeds that which is normally associated with the crime. Br. of Appellant at 7. The impact that the victim or the victim's family suffers as a result of a particular offense is generally accounted for in the presumptive sentence. Simmons v. State, 746 N.E.2d 81, 91 (Ind.Ct.App.2001), trans. denied (citing Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997)). "`In order to validly use victim impact evidence to enhance a presumptive sentence, the trial court must explain why the impact in the case at hand exceeds that which is normally associated with the crime.'" Id. (quoting Davenport v. State, 689 N.E.2d 1226, 1233 (Ind.1997), clarified on reh'g on other grounds).

In Simmons, the trial court found as an aggravating factor "`the circumstances surrounding the family and the stress that the family has undergone, and also the tremendous impact that this action has had upon a minor child.'" Id. (quoting Trial Record at 465). However, the trial court did not explain why the impact to the victim and her family in that case was distinct from the impact felt by similarly situated victims. Id. We therefore determined that the trial court's reliance on that factor in sentencing the defendant was erroneous. Id.

In this case, as in Simmons, the trial court considered the impact on M.L. and K.M. as an aggravating factor, but did not explain why the impact suffered by M.L. and K.M. "exceed[ed] that which is normally associated with the crime." See id. Therefore, we agree with Hildebrandt that the trial court improperly relied upon the impact suffered by M.L. and K.M. as an aggravating factor when it sentenced him.

However, the trial court properly relied on other aggravating factors, including Hildebrandt's criminal history, when it imposed enhanced and consecutive sentences. "A single aggravating factor may be sufficient to support an enhanced sentence." Id. Also, a trial court may use the same aggravating factors to enhance a presumptive sentence and to justify consecutive sentences. Id. "Even when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist." Walter v. State, 727 N.E.2d 443, 447 (Ind.2000). Despite the trial court's reliance on an improper aggravating circumstance, the trial court found several other valid aggravating circumstances, including Hildebrandt's criminal history. Therefore, the trial court did not abuse its discretion when it imposed enhanced and consecutive sentences on Hildebrandt.

II. Manifestly Unreasonable Sentence

A. Indiana's Sentencing Structure

There are generally two types of sentencing structures in the United States: indeterminate and determinate sentencing. "Indeterminate sentences are those `sentence[s] of imprisonment the duration of which is not fixed by the court but is left to the determination of penal authorities within minimum and maximum time limits fixed by the court of law.'" White v. Ind. Parole Bd., 713 N.E.2d 327, 329 n. 2 (Ind. Ct.App.1999),trans. denied (quoting Black's Law Dictionary 771 (6th ed.1990)). It is this available, post-sentence intervention and modification by correctional authorities that makes such sentencing "indeterminate."

By contrast, a determinate sentence is defined as "`one for a definite or certain number of years fixed by a court.'" Id. at 330 n. 3 (quoting Jones v. Jenkins, 267 Ind. 619, 621, 372 N.E.2d 1163, 1164 (1978)). Under a determinate sentencing system, while the legislature sets a range of punishments for the crime, the sentencing judge determines the length of the convicted defendant's sentence within that range. Although the date of release is determined at the time the sentence is imposed, a sentence may be administratively reduced by correctional authorities for good behavior during the term of the sentence. See Victoria J. Palacios, Article, Go and Sin No More: Rationality and Release Decisions by Parole Boards, 45 S.C. L.Rev. 567, 574 (1994). Indiana's sentencing structure has many features of a determinate sentencing system.

Hildebrandt's sentences are "executed" sentences. An "executed sentence" is one that is actually served in a correctional facility, or other alternative correctional program, such as work release or home detention as opposed to a suspended sentence or sentence of probation.

Once a convicted defendant is sentenced, he or she is entitled to initial Class I classification upon arrival at a correctional facility or program. See Ind.Code § 35-50-6-4 (1998 & Supp.2002). Class I classification qualifies an inmate for sentence reduction by one-half, i.e. subtraction of one day of sentence for each day of good behavior ("good time"), in addition to credit for the day actually served. See Ind. Code § 35-50-6-3 (1998). Class II classification reduces the Class I credit to one day of good time for two days served and Class III classification denies any good time credit. Id. Indiana sentencing judges can only recommend classification of a sentenced defendant; actual classification is determined by correctional authorities, subject to statutory due process. Ind. Code § 35-50-6-5 (1998 & Supp.2002).

Within this structure, Hildebrandt argues that his sentence is manifestly unreasonable. He specifically argues that the trial court assigned too much weight to his minor and non-violent, unrelated prior criminal history of four misdemeanor convictions. "Although a trial court may have acted within its lawful discretion in determining a sentence," Buchanan v. State, 767 N.E.2d 967, 972 (Ind.2002), Article 7, Section 6 of the Indiana Constitution authorizes independent appellate review and revision of a sentence imposed by the trial court. "This appellate authority is implemented through Indiana Appellate Rule 7(B), which provides: `The Court shall not revise a sentence authorized by statute unless the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.'" Id. at 972-73 (citing App. R. 7(B)).

While appellate courts are loathe to substitute their judgments for those of the sentencing ...