Johnston v. State

• Decision Date: 30 September 1991
• Docket Number: No. 02S00-9001-CR-00017,02S00-9001-CR-00017
• Citation: 578 N.E.2d 656
• Parties: Kenneth Paul JOHNSTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 656

578 N.E.2d 656

Kenneth Paul JOHNSTON, Appellant, v. STATE of Indiana, Appellee.

No. 02S00-9001-CR-00017.

Supreme Court of Indiana.

Sept. 30, 1991.

Gregory L. Fumarolo, Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Robbery, for which he received a sentence of thirty (30) years; two convictions of Attempted Murder, for which he received sentences of fifty (50) years each, all sentences to run consecutively; two convictions of Confinement, for which he received sentences of ten (10) years each, to run concurrently with each other, but consecutively to the first three counts; and Murder, for which he received a sentence of sixty (60) years, enhanced by thirty (30) years by reason of his status as a habitual offender, to run consecutive to all other counts for a total executed term of two hundred thirty (230) years. The State concedes that the robbery count was raised to a Class A felony by reason of the bodily injury to the victim, which was the same physical harm which supports the first attempted murder charge. Therefore, the Class A felony judgment for the robbery conviction must be remanded to the trial court for imposition of a Class C felony penalty. See Mitchell v. State (1989), Ind., 541 N.E.2d 265; Malott v. State (1985), Ind., 485 N.E.2d 879.

The facts are: During the evening of October 15 and the early morning hours of October 16, 1988, appellant and Waldo Farris were with the victim, Victor Cooley, at some bars in Fort Wayne, and during that time, appellant informed Farris that he intended to rob and beat Cooley. The three men eventually went to a farm in Allen County which was owned by friends of the appellant. After arriving at the farm, appellant attacked Cooley from behind with a brick. After knocking him to the ground, appellant then pounced upon Cooley and beat him with nun-chucks. Despite Cooley's plea for mercy, he was beaten into unconsciousness and his money was taken. Appellant and Farris thought Cooley was dead and left.

Appellant told Ralph Cook and Jenitha Strickland that they had beaten the man, and it was noticed that both appellant and Farris had blood on their clothing and money. A few hours later appellant and Farris returned to the farm for the purpose of disposing of the body with the young people whose parents owned the farm.

When they arrived, they discovered that Cooley was still alive. Appellant again attacked Cooley, beat him severely and tied him up, after which appellant continued to beat him with a cement block. By this time, Cooley's head was smashed and bleeding profusely. Appellant and Farris wrapped Cooley's body in a tarpaulin, placed it inside the trunk of a car, and drove away to dispose of the body. They drove to a bridge over a stream in Whitley County where they stopped and threw the body from the bridge. However, they realized that the body had landed on the bank and had not gone in the water. They then climbed down to where the body lay and discovered that Cooley in fact was still alive. Appellant again beat Cooley and finally placed him in the water and held his head under until he quit moving.

After leaving the scene, they attended a cookout at the farm where the initial beating had occurred, and while at the cookout they burned their bloody clothing and the bloody tarpaulin within which they had wrapped Cooley. At the cookout, appellant reenacted the crime. Sometime later, appellant related the events of the beatings to other persons at another party. Appellant also sold the victim's jacket, which had blood on it. He subsequently sold the car in which Cooley had been hauled, and it too was discovered to have blood in the trunk.

In February of 1989, Farris was arrested in California on an unrelated charge but told the police of the activity in Indiana and implicated appellant. Charges were filed in both Whitley County and Allen County. The charges in Whitley County subsequently were dismissed in favor of prosecution in Allen County. Farris entered a plea of guilty under a plea agreement in Whitley County and eventually obtained a grant of immunity in Allen County.

Appellant claims the trial court erred in imposing the separate and consecutive sentences for two counts of attempted murder. He takes the position that the attempted murder counts are included offenses in the murder charge. It is true that a defendant cannot be convicted of two separate crimes stemming from a single act where one is a lesser-included offense of the other. Mihay v. State (1987), Ind., 515 N.E.2d 498.

However, in the case at bar, the time sequence sets out the murder attempts as separate and distinct from the murder which eventually was accomplished. After the first attack upon the victim, at which time the robbery occurred, he was left for dead by the perpetrators. When they returned to the scene for the purpose of disposing of the body, they found the victim still alive. The victim again was beaten severely until he was believed once more to be dead. His body then was bound and wrapped in a tarpaulin, placed in the trunk of a car, and transported to a bridge over a stream into which the victim was thrown. However, the perpetrators discovered the body in fact had not landed in the water but on the bank and they proceeded to descend to the bank where again, for the third time, after a severe beating, they discovered the victim to be alive. His body then was placed in the water and appellant held him under until he stopped moving.

It thus is apparent that on two separate occasions the perpetrators attempted but failed to kill the victim. It apparently was not until the third assault on the victim that death resulted. Thus two separate attempts at murder were perpetrated by beating before a third accomplished the murder by beating and drowning. See Jones v. State (1988), Ind, 523 N.E.2d 750. The trial court did not err in imposing separate sentences for the separate offenses.

Appellant contends the trial court erred in not taking into account mitigating circumstances of a prior felony conviction which was used in the habitual offender phase. He argues that the trial court should have considered as a mitigating factor that one of his prior convictions was a Class D felony. Indiana Code Sec. 35-50-2-8(e) provides that if one of the prior felonies was a Class D felony, the court may subtract up to ten (10) years from the additional fixed term of thirty (30) years. Subsection 8(g) provides the court may also consider the aggravators and mitigators in Sec. 35-38-1-7.1, which are the standard considerations used in imposing sentence.

Appellant concedes that the reduction is not mandatory. However, he goes on to argue that his prior convictions were the result of crimes perpetrated against his mother and stepfather and that because there were no serious personal injuries or property damage, the trial court should have considered that fact as mitigating and thus should have exercised the reduction option available in the statute.

Aggravating and mitigating circumstances are to be considered as to the current charge only. Those matters were considered by the trial court at the original sentencing under his prior conviction. It would not be proper for a court at a later date, in deciding appellant's status as a habitual offender, to reevaluate the prior court's holdings and find there to be circumstances in mitigation of the prior conviction. The purpose of Ind.Code Sec. 35-50-2-8 is for the judge to exercise his sound judgment in the application of the habitual offender...