Lang v. State, No. 483S118

• Docket Nº: No. 483S118
• Citation: 461 N.E.2d 1110
• Case Date: April 19, 1984
• Court: Supreme Court of Indiana

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461 N.E.2d 1110 Jerry A. LANG, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 483S118. Supreme Court of Indiana. April 19, 1984.

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Fredrick J. Hartz, Hartz & Eberhard, LaGrange, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Jerry A. Lang, pled guilty to robbery, a Class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1983 Supp.), and was sentenced to the Indiana Department of Correction for a period of forty-five years. He raises five issues in this direct appeal which we have consolidated into the following three issues:

1. Whether defendant's sentence is so excessive that it constitutes cruel and unusual punishment and an abuse of the trial court's discretion;

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2. Whether the pre-sentence report was filed sufficiently in advance of the sentencing to afford defendant a change to review it and whether the comments and opinions in the report violated defendant's right to due process of law; and

3. Whether defendant had a right to counsel during the pre-sentence interview with the probation officer.

A summary of the facts from the record most favorable to the state shows that on May 16, 1982, defendant was staying at a Days Inn Motel in Youngstown, Ohio. He had been visiting his girlfriend there, but he had no money and did not know anyone else in that city. Early in the morning of May 16, defendant noticed an elderly gentleman, Bernard Barush, packing his car and preparing to leave. Defendant started talking to Barush and after Barush told him he was traveling to Illinois, defendant asked if he could ride with him to his uncle's house in Indiana. After they had driven into Indiana, defendant picked up a rock during a rest stop and struck Barush on the head six times. He took Barush's wallet which contained several hundred dollars and dragged Barush's body out of the car. He placed his blood-soaked clothes in a trash bin and drove Barush's car back to Connecticut where he was subsequently arrested. Barush was knocked unconscious during this attack and remained hospitalized for several months.

I.

Defendant first contends that the trial court did not take into consideration the proper criteria for sentencing. He further argues that the sentence imposed is so excessive that it amounts to cruel and unusual punishment and is an abuse of the trial court's discretion. The trial court in this case sentenced defendant to a forty-five year sentence and a fine of ten thousand dollars with the provision that the fine should be suspended during defendant's good behavior provided that he make restitution in a reasonable amount to the victim.

This sentence is clearly within the statutory authority of the trial court since the court has the discretion to enhance the sentence for conviction of a Class A felony as follows:

"A person who commits a class A felony shall be imprisoned for a fixed term of thirty years, with not more than twenty years added for aggravating circumstances or not more than ten years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars [$10,000]."

Ind.Code Sec. 35-50-2-4 (Burns 1979 Repl.).

This Court has continually held that when a trial court uses its discretionary power to increase or decrease the basic sentence or impose consecutive terms of imprisonment, the record must disclose what factors were considered by the judge to be mitigating or aggravating circumstances. The record must further show that the determination of the sentence was based upon a consideration of the facts of the specific crime and the relation of the sentence imposed to the objectives which will be served by that sentence. Tuggle v. State, (1984) Ind., 457 N.E.2d 1094; Garringer v. State, (1983) Ind., 455 N.E.2d 335; Washington v. State (1981) Ind., 422 N.E.2d 1218. When a sentence is within statutory limits, this Court is not at liberty to set aside or alter the sentence unless the record indicates a manifest abuse of discretion. Arnold v. State, (1984) Ind., 460 N.E.2d 494; George v. State, (1980) Ind., 403 N.E.2d 339.

Here, the trial court heard testimony from both the state and the defendant at the sentencing hearing. The judge considered the specific facts of the instant offense, the pre-sentence report and three psychiatric reports. There was ample evidence before the court showing defendant's background, his lack of any prior criminal history, and his expressed remorse for this crime. The court listed the following circumstances which he considered to be mitigating circumstances in this case:

"the fact that the defendant did serve in the United States Navy, received a General Discharge which was upgraded to

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Honorable Discharge that he is of young age at age twenty-one (21), that he entered a plea of guilty herein saving the taxpayers unnecessary jury expense...."

He then stated that these mitigating circumstances were outweighed by the aggravating factors:

"the fact that he has an explosive disorder which needs further psychiatric counseling that only an institution could give him ... that the aggravating circumstances the victim was over sixty-five (65) years of age, and the fact that the seriousness of the offense requires that the said offense not be reduced by--should not be depreciated to something of a minor nature."

Here, the record shows that defendant purposefully intended to severely injure the elderly victim, Barush, after Barush had shown a great deal of kindness to him. Evidence before the court showed that the victim never regained the capacity to live a normal life. The age of the victim, the seriousness of the injuries inflicted, and defendant's need for correctional treatment were proper factors for the court to consider. Ind.Code Sec. 35-38-1-7 (Burns 1983 Supp.).

Defendant now contends that the court did not consider all of the factors which were mitigating circumstances in this case and improperly considered other factors as aggravating circumstances. We find no merit to these contentions. Although...