Malenchik v. State Of Ind.

• Decision Date: 09 June 2010
• Docket Number: No. 79S02-0908-CR-365.,79S02-0908-CR-365.
• Citation: 928 N.E.2d 564
• Parties: Anthony MALENCHIK, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

928 N.E.2d 564

Anthony MALENCHIK, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).

No. 79S02-0908-CR-365.

Supreme Court of Indiana.

June 9, 2010.

Michael B. Troemel, Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Patrick Harrington, Tippecanoe County Prosecuting Attorney, Lafayette, IN, Attorneys for Appellee.

Joel M. Schumm, IU School of Law-Indianapolis, Bryan H. Babb, Bose McKinney & Evans LLP, James J. Bell, Bingham McHale, LLP, Fred R. Biesecker, Ice Miller LLP, Carol A. Nemeth, Price Waicukauski & Riley LLC, Geoffrey G. Slaughter, Taft Stettinius & Hollister LLP, Indianapolis, IN, Attorneys for Amicus Curiae Indianapolis Bar Association, Criminal Justice and Appellate Practice Sections.

Larry Landis, Executive Director, Indiana Public Defender Council, Indianapolis, IN, Attorney for Amicus Curiae Indiana Public Defender Council.

Richard J. Hertel, Chairman, Indiana Prosecuting Attorneys Council, Versailles, IN, Stephen J. Johnson, Executive Director, Indiana Prosecuting Attorneys Council, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Prosecuting Attorneys Council.

Jane A. Seigel, Jennifer A. Bauer, Michelle C. Goodman, Indiana Judicial Center, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Judicial Center.

Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Kathleen Cleary, Deputy Public Defender, Indianapolis, IN, Attorneys for Amicus Curiae Public Defender of Indiana.

On Transfer from the Indiana Court of Appeals, No. 79A02-0902-CR-133

DICKSON, Justice.

Following his plea of guilty to Receiving Stolen Property, a class D felony, and his admission to being a Habitual Offender, the defendant was sentenced to a total of six years, with two years suspended. The defendant appeals his sentence and presents two claims: (1) the trial court erroneously considered as an aggravating circumstance the numerical scores reported by the Tippecanoe County Probation Department after it conducted evaluations of the defendant using certain offender risk evaluation and assessment instruments; and (2) his sentence was inappropriate and should be revised. The Court of Appeals rejected both claims and affirmed in a memorandum decision. Malenchik v. State, No. 79A02-0902-CR-133, 2009 WL 1577832 (Ind.Ct.App. June 5, 2009). We granted transfer to address the first claim and invited supplemental briefs of the parties and amici curiae. As explained below, we hold that legitimate offender assessment instruments do not replace but may inform a trial court's sentencing determinations and that, because the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed, we affirm the sentence.¹

The pre-sentence investigation report filed by the Tippecanoe County Probation Department ² informed the trial court that the department had completed a Level of Service Inventory-Revised (LSI-R) covering “the areas of Criminal History, Education and Employment, Financial, Family, Accommodations, Leisure and Recreation, Companions, Alcohol and Drugs, Emotional and Personal Issues, and Attitudes and Orientation,” and on which the defendant “scored a 41” and thus “falls into the High Risk/Needs category.” Appellant's Supp. App'x “Green Volume I” at 8. The report also provided a more detailed breakdown of the evaluation. In addition, the report informed the trial court that the defendant had completed a Substance Abuse Subtle Screening Inventory (SASSI) that indicated he “has a high probability of having a Substance Dependence Disorder.” Id.

On two occasions during the sentencing hearing, the judge referenced the LSI-R and the SASSI results:

You know I don't think I've seen a 20 year old here with the kind of criminal history you've developed.... [Y]ou've been through the system[;] it doesn't seem to make any changes.... [Y]our LSIR score is high. Your SASSI score is high with a high probability of substance dependence disorder. Your criminal history shows a complete disregard of other people and ... an unwillingness or inability to change your behavior.

Appellant's App'x at 40.

You know what you're going to have to start climbing out of the hole and that's what we're talking about now. But Anthony, if you want to start climbing you're going to have to start telling the truth to yourself and to others. Once again, that's up to you. If you expect people to believe things like this, you know what, nobody is going to believe there is any change. Do you understand? All of this is based upon the character, the risk of recidivism, which is quite high according to the LSIR and the SASSI we've got a number of things that we need to do and frankly when you come out you'll get some treatment in the Department of Correction and then I want you on supervised probation so that we can move you into providers here in the community.

Id. at 67.³

The defendant contends that it was improper for the trial court to take into consideration the LSI-R score. He argues that consideration of this score was disapproved in Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind.Ct.App.2008) trans. not sought, that such models have not been recognized as scientifically reliable so as to qualify for admissibility under Indiana Evidence Rule 702, that the scoring models lack objective reliability, that they are not relevant to statutory aggravating circumstances, that they are unfairly discriminatory, that the use of the LSI-R test in this case impinged upon his right to counsel, that the use of scoring models conflicts with Indiana's constitutional requirement that the penal code be founded on principles of reformation and not vindictive justice, and that using such scores may lead to an unwise fundamental change in Indiana's sentencing system.

The State urges that an evidence-based tool such as the LSI-R may be utilized in the sentencing process if employed consistently with its proper purposes and limitations. The State asserts that the LSI-R has widespread acceptance, that it is widely recognized as valid and reliable, and that it does not intrude upon but rather serves as a legitimate and valuable contribution to the sentencing process.

We initially observe that the trial court's sentencing decision was clearly based on factors apart from the defendant's LSI-R and SASSI results. In the course of the sentencing colloquy, the judge emphasized that the defendant has a significant criminal history, was on probation at the time of the offense, has had two petitions to revoke probation in a prior case, has a history of disregarding others, has been unwilling to change his behavior, has a fundamental lack of honesty, and has a pattern of blaming circumstances rather than accepting responsibility. Appellant's App'x at 38, 40, 41, 42, 43, 61, 65, 66. The judge stated that he selected a sentencing program that would enable the defendant to complete his education in the Department of Correction, then to move from there first to supervised probation “so that we can move you into providers here in the community,” and then into unsupervised probation. Id. at 67. The trial judge did not rely on either the LSI-R or SASSI as an independent aggravating factor in deciding to impose more than the advisory sentence.

The remaining issue is whether, and in what manner, a trial judge may consider results from the LSI-R, SASSI, or other similar assessment tools. Such instruments, often called “scoring models,” are examples of “evidence-based practice”-“professional practices that are supported by the best research evidence, consisting of scientific results related to intervention strategies ... derived from clinically relevant research ... based on systematic reviews, reasonable effect sizes, statistical and clinical significance, and a body of supporting evidence.” Roger K. Warren Evidence-Based Sentencing: The Application of Principles of Evidence-Based Practice to State Sentencing Practice and Policy, 43 U.S.F. L. Rev. 585, 597 (2009) (internal quotation marks omitted).

To determine the proper role, if any, of evidence-based practices in the assessment and management of penal consequences, we first note that Article 1, Section 18 of the Indiana Constitution implores: “The penal code shall be founded on the principles of reformation, and not of vindictive justice.” Presumably mindful of this objective, the General Assembly has enacted a sentencing scheme requiring that before sentencing a defendant in a criminal case, a trial court “must conduct a hearing to consider the facts and circumstances relevant to sentencing.” Ind.Code § 35-38-1-3. For all felonies except those classified as class D felonies, the court may not sentence a convicted defendant until it considers a written pre-sentence report prepared by a probation officer. Ind.Code § 35-38-1-8. Such pre-sentence reports are also required before a trial court accepts a defendant's guilty plea. Ind.Code § 35-35-3-3; Reffett v. State, 571 N.E.2d 1227, 1229-30 (Ind.1991). Among the information to be included in a pre-sentence report is “the convicted person's history of delinquency or criminality, social history, employment history, family situation, economic status, education, and personal habits.” Ind.Code § 35-38-1-9(b)(2). In determining what sentence to impose, a trial court is guided by a non-exclusive statutory list of eleven aggravating and eleven mitigating circumstances. Ind.Code § 35-38-1-7.1. These criteria, however, “do not limit the matters that the court may consider in determining the sentence.” Ind.Code § 35-38-1-7.1(c). Indiana's statutory sentencing scheme prescribes for each criminal offense a maximum and minimum sentence along with an “advisory” sentence. A court may “impose any sentence within the statutory range without regard to the...