Jones v. State
| Decision Date | 31 December 1996 |
| Docket Number | No. 48S00-9507-CR-00862,48S00-9507-CR-00862 |
| Citation | 675 N.E.2d 1084 |
| Parties | Jeffrey P. JONES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
On January 5, 1995, defendant Jeffrey P. Jones pled guilty to the charge of Murder. 1 On March 20, 1995, the trial court conducted its sentencing hearing and imposed a sentence of 60 years. 2
Jones presents three issues for review on this direct appeal:
1) Whether the trial court properly considered the statutory requirements regarding aggravating and mitigating circumstances when imposing an enhanced sentence;
2) Whether the trial court improperly permitted victim-impact evidence at the sentencing hearing; and
3) Whether Jones knowingly and voluntarily entered his guilty plea, and whether there was an adequate factual basis to support the acceptance of the plea.
On September 19, 1994, Jeffrey Jones shot and killed his wife, Kimberly Jones, while she was sitting in the backseat of a Chevette parked at her residence in Anderson, Indiana. At the time of the shooting, there was a baby and three other children, all under the age of five, in the car with Mrs. Jones. Defendant admitted that he was responsible for the death of his wife but he could not say why he shot her.
Defendant claims that the trial court improperly applied the statutory requirements of Ind.Code § 35-38-1-7.1 (1995 Supp.) in four respects when it enhanced the presumptive sentence due to the finding of aggravating circumstances: (i) the trial court gave only terse support to the finding of certain aggravating circumstances; (ii) some of the trial court's findings were nothing more than a mere repetition of statutory language; (iii) the trial court improperly applied the statutory aggravating circumstance of "depreciate the seriousness of the crime" since the trial court was not considering imposing a sentence of less duration than the presumptive sentence; and (iv) the trial court failed to consider as a mitigating circumstance the fact that defendant had experienced a troubled upbringing and was diagnosed as suffering from bi-polar disorder.
In Joshua P. Smith v. State, 675 N.E.2d 693 (Ind.1996), we concluded that P.L. 158-1994, which provides a presumptive 40-year sentence for murder subject to a 20-year enhancement, rather P.L. 164-1994, which provides a presumptive 50-year sentence for murder subject to a ten-year enhancement, governs murders committed between July 1, 1994, and May 5, 1995. Because the record suggests that the trial court used P.L. 164-1994 in this case, we remand for re-sentencing. In the interest of judicial economy, we nevertheless address the sentencing issues raised by defendant.
1. Defendant's assertion that the trial court's sentencing order was impermissibly terse is not supported by the record. When a trial court enhances a sentence, its sentencing order must identify all of the significant mitigating and aggravating circumstances, state the specific reason why each circumstance is considered mitigating or aggravating, and articulate that the court evaluated and balanced mitigating circumstances against the aggravating circumstances to determine if the mitigating circumstances offset the aggravating circumstances. Henderson v. State, 489 N.E.2d 68, 71 (Ind.1986). The trial court's sentencing statement here met these requirements.
Ind.Code § 35-38-1-7.1(b)(1) (1995 Supp.) provides that a court may consider as an aggravating circumstance the fact that the person has recently violated the conditions of any probation, parole, or pardon granted to the person. To support the finding of this aggravator, the trial court's sentencing statement noted that defendant had three prior probation violations before the instant offense was committed.
Ind.Code § 35-38-1-7.1(b)(2) provides that a person's history of criminal or delinquent activity may be used to support the finding of an aggravating circumstance to enhance a sentence. Because some statements of aggravating circumstances are merely conclusory they must be substantiated by specific facts. For example, if a defendant has a history of criminal activity, the incidents comprising such activity should be recited. Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986). The trial court supported the finding of this aggravator by specifically identifying several past incidences of criminal conduct by defendant. Those incidences were illegal consumption, conversion, robbery, marijuana possession, public intoxication, and four incidences of battery.
Ind.Code § 35-38-1-7.1(a)(2) provides that the nature and circumstances of a crime shall be considered in determining what sentence to impose. The trial court's sentencing statement adequately supported the finding of this aggravating circumstance by noting that when defendant committed the murder, there were others present in the car, including children.
2. Defendant's claim that the trial court's sentencing order was impermissibly repetitious of statutory language is also not supported by the record. Defendant is correct that a mere recitation of statutory language in a statement disclosing factors the trial court considered to justify enhancement of presumptive sentence is insufficient to support an enhanced sentence. Meriweather v. State, 659 N.E.2d 133, 145 (Ind.App.1995), trans. denied. However, while the trial court used the exact language of Ind.Code § 35-38-1-7.1(b)(3), "The person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility," to identify the existence of an aggravator, it also listed specific reasons in support of its finding. The trial court's sentencing statement explained that the courts had tried "every program possible to keep the defendant from continuing his malevolent behavior, to try to get him off drugs and alcohol and everything we did failed." (R. at 248). The statement also related that defendant had not responded permanently to these probation programs, and that those programs had not helped defendant correct his criminal ways of life. After finding that other methods of rehabilitative treatment explored by the criminal justice system had failed, the trial court reasonably concluded that defendant was in need of correctional rehabilitative treatment that could best be provided by commitment to a penal facility. It is clear that the trial court's finding was much more than just a mere repetition of statutory language. 3
3. Defendant correctly claims that the trial court used an aggravating circumstance improperly but the error did not constitute reversible error. This Court has held that the finding of the aggravator that imposition of a reduced or suspended sentence would "depreciate the seriousness of the crime" may only be used when a trial court is considering imposition of a sentence which was shorter than the presumptive sentence. Penick v. State, 659 N.E.2d 484, 488 (Ind.1995). However, this Court has also held that an alternate form of the depreciate the seriousness aggravator exists when a trial court is considering imposition of an enhanced rather than a reduced sentence. Ector v. State, 639 N.E.2d 1014, 1015 (Ind.1994).
Although not enumerated in the sentencing statute, consideration of such as an aggravating circumstance is permitted because the statutory list of aggravating factors is not exclusive, I.C. 35-38-1-7(d). This Court has thus upheld sentence enhancement based upon a finding that a sentence less than an enhanced term sought by the prosecution would depreciate the seriousness of the crime.
Evans v. State, 497 N.E.2d 919, at 923-24 (Ind.1986).
Defendant correctly argues that the trial court erred when it found this to be a valid aggravator. The trial court's sentencing statement's only reference to this aggravator consisted of the statement "Imposition of reduced sentence would depreciate the seriousness of the Crime, as evidence by the courts previous record in regard to this matter." There was no indication that the trial court's basis for its finding was its concern for reducing the sentencing recommendation of the prosecution. Since the trial court was not considering imposing a sentence of less duration than the presumptive sentence, the court's use of the depreciate the seriousness of the crime aggravator was improper.
However, it is within the discretion of the trial court to determine whether a presumptive sentence will be increased due to aggravating circumstances. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993). Since the trial court found several other valid aggravating circumstances, the improper use of this one aggravator did not make the enhanced sentence manifestly unreasonable.
4. The trial court adequately considered mitigating circumstances. Defendant asserts that the trial court erred by failing to consider as mitigating circumstances that defendant was suffering from bi-polar disorder which rendered him unable to appreciate the wrongfulness of his act and defendant was raised in a very difficult situation.
A failure to find mitigating circumstances that were clearly supported by the record may imply that they were overlooked and not properly considered. Johnson v. State, 580 N.E.2d 959, 961 (Ind.1991). Although a court must consider all evidence of mitigating factors offered by a defendant, the finding of a mitigating factor rests within the trial court's discretion. Harris v. State, 659 N.E.2d 522, 528 (Ind.1995).
Kenneth Joy, a psychologist, testified at the sentencing hearing that defendant suffered from bi-polar disorder. He also testified that if defendant was experiencing a manic episode at the time of the shooting, he probably did not appreciate the wrongfulness of his act. However, ...
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