Idle v. State, No. 79A02-9010-CR-615

• Docket Nº: No. 79A02-9010-CR-615
• Citation: 587 N.E.2d 712
• Case Date: March 05, 1992
• Court: Court of Appeals of Indiana

Page 712

587 N.E.2d 712 Lowell K. IDLE, Appellant-Defendant,
v.
STATE of Indiana, Appellee. No. 79A02-9010-CR-615. Court of Appeals of Indiana,
Second District. March 5, 1992.
Transfer Denied April 23, 1992.

Page 713

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Ian A.T. McLean, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Upon a guilty plea, Lowell Idle (Idle) was convicted of three counts of Confinement While Armed with a Deadly Weapon, ¹ a class B felony, one count of Criminal Deviate Conduct While Armed with a Deadly Weapon, ² a class A felony, and one count of Rape While Armed with a Deadly Weapon, ³ a class A felony. Upon appeal, Idle challenges the sentences imposed by the trial court asserting that they are manifestly unreasonable, and resulted from the trial court's failure to appropriately weigh mitigating factors.

We affirm in part, reverse in part, and remand.

In the early morning hours of November 1, 1988, Idle went to the house of S.K. with the intent to kill S.K.'s husband. Apparently, Idle hoped that S.K., who was his sister-in-law, would marry him after he killed her husband. H.S., S.K.'s eleven-year-old daughter, answered Idle's knock. When the door was opened, Idle pointed a sawed-off .22 caliber rifle at H.S. and she ran screaming into her mother's bedroom. Idle followed H.S. into S.K.'s bedroom, where he found S.K. in bed with L.S., her two-year-old daughter.

After shutting the door, Idle ordered H.S. to disrobe. S.K. responded that H.S. would not comply with his demand, whereupon Idle ordered both S.K. and H.S. to disrobe. S.K. then asked Idle to allow L.S. to get off of the bed, which he permitted. At this point, H.S. and L.S. went to a corner of the room and covered themselves with a blanket. S.K. then asked Idle about his conduct, to which he responded that he had always wanted S.K., and that he never wanted Sharon (Idle's wife and S.K.'s sister). He then forced S.K. to disrobe, laid the gun on the dresser, and performed cunnilingus upon her. After she refused his request to perform fellatio upon him, Idle raped S.K. After picking up his gun again, Idle allowed S.K. to get dressed. Thereafter, everyone went into the kitchen. After a brief discussion in the kitchen, Idle left the house and S.K. immediately locked the door behind him and called the police.

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Following his plea, the trial court imposed the maximum 20-year sentence for each of the three convictions of Confinement, the three sentences to run concurrently, and it imposed the presumptive 30-year sentence for each of the sex-related offenses (Rape and Criminal Deviate Conduct), which also were to run concurrently. In addition, the court ordered that the three 20-year sentences were to run consecutive to the two 30-year sentences, for a total executed sentence of 50 years.

I. Sentencing

A trial court has wide discretion in sentencing and upon review we do not set aside or alter a sentence that is within statutory limits unless the record reveals a manifest abuse of discretion. Arthur v. State (1986) Ind., 499 N.E.2d 746.

Idle contends that a pre-sentence report submitted to the court was improper because the preparer recommended the maximum sentence but did so without explaining the rationale. In effect, Idle's argument is that the trial court gave undue weight to the subjective viewpoint of the report preparer.

Even were we to accept Idle's assertion that the report's recommendation is without supporting rationale, Idle's argument is without merit. A trial court may consider relevant information when determining what sentence to impose. Yates v. State (1982) 3d Dist.Ind.App., 429 N.E.2d 992, 994. Although our legislature has mandated that a pre-sentence report must be filed prior to sentencing (I.C. 35-38-1-8 (Burns Code Ed.Supp.1991)), it has not legislated the weight which a judge must accord the report. The record here does not indicate how much weight the trial judge accorded the report, nor does it reflect what weight, if any, was given to the preparer's recommendation as opposed to the factual data contained in the report. Moreover, such weighing is included in the broad discretion granted to trial courts when sentencing. For this reason, the relevant inquiry regarding pre-sentence reports generally concerns their accuracy and, to that end, whether the defendant had an opportunity to examine the report and challenge any inaccuracies, pursuant to I.C. 35-38-1-12(b) (Burns Code Ed.Supp.1991).

In the instant case, Idle's sole substantial challenge at the sentencing hearing was to the report's assertion that his criminal history included an assault and battery charge, which was the only item listed in his criminal history. The trial court apparently accepted Idle's challenge, as indicated by the listing, as a mitigating factor, of Idle's long period of good behavior and apparent lack of prior criminal activity. Having found that the report was substantially accurate, that Idle had ample opportunity to challenge the report, and mindful of the broad discretion vested in the trial court's use of pre-sentence reports when sentencing, we discern no error regarding the trial court's use of the pre-sentence report.

Idle's remaining claims of error involve the trial court's identification and use of aggravating factors which supported the sentence enhancements and consecutive sentences. When a court imposes consecutive terms, the record must disclose articulated facts which support a finding of the presence of at least one of the aggravating circumstances listed in former I.C. 35-38-1-7(b) (Burns Code Ed.1985). Brown v. State (1986) Ind., 497 N.E.2d 1049. However, the statutory factors are not exclusive and the trial court may, in its discretion, consider other relevant factors. Ballard v. State (1988) Ind., 531 N.E.2d 196, 197. Following is the trial court's statement of aggravating and mitigating circumstances.

"Right, the Court will find as mitigating circumstances, ... apparently there was a long period of good behavior. We didn't find very many--many crimes were committed. In fact, according to what you said today, there were none prior to this that we could find. You served in Vietnam. Mentally ill, and I know that being mentally ill probably doesn't add or subtract from the seriousness of the crime. The aggravating circumstances, the extreme violence and the excessive use of alcohol and the use of

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drugs. And you had [an] eleven-year-old girl to un-robe in your presence. And you raped their mother in the presence of the three-year-old and eleven-year-old girl. And you performed oral sex on the victim and raped her. And I believe the victim was your sister-in-law. And the intent with which you said that you went to that place was to commit murder. Those are the aggravating circumstances that the Court finds. Is there anything that I have omitted?" Record at 253-54.

In summary, the aggravators identified by the court were: 1) the extreme violence of the crime; 2) Idle's history of alcohol and drug abuse; 3) having H.S. disrobe in his presence; 4) committing the sex crimes in the children's presence; 5) performing cunnilingus on S.K. and raping her; 6) the fact that the victim was Idle's relative; and 7) Idle's intent to murder S.K.'s husband. Idle contends that the only proper aggravating factor was the...