May v. State, 1084S383
| Citation | 502 N.E.2d 96 |
| Decision Date | 31 December 1986 |
| Docket Number | No. 1084S383,1084S383 |
| Parties | Johnny L. MAY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Johnny L. May was convicted of five counts of robbery, a class B felony, at the conclusion of a jury trial in the LaPorte Circuit Court. He was sentenced to five concurrent terms of sixteen years. The following issues are raised on direct appeal:
1. sentencing;
2. denial of Appellant's Motion to Dismiss;
3. denial of Appellant's Motion to Suppress;
4. cross-examination of Appellant;
5. sufficiency of the evidence;
6. alleged prosecutorial misconduct; and
7. alleged ineffective assistance of counsel.
On September 25, 1981, Julia Collard observed an orange car with Illinois license plates back into the parking lot of Dago John's Tavern. Three black males exited the car, entered the tavern, and asked to speak to the owner about a job. They left upon being told the owner was not present. About an hour later, three armed black males wearing masks entered the tavern through the front and rear doors. The owner was forced to turn over nearly $3,000, and four patrons also were forced to relinquish their wallets. The owner, employees, and patrons were led into a washroom and told to lie down. After about ten to fifteen minutes, when they saw the robbers had gone, the victims came out. Because the telephone wires had been cut, two of the victims went to call the police.
Officer Eddie Hawk, of the LaPorte County Sheriff's Department, was on patrol when he received a dispatch over his radio concerning the robbery. The dispatch said the suspects possibly were driving a 1968 white Oldsmobile. Hawk passed by a cream-over-orange Chevrolet with Illinois license plates, being driven by a black male wearing a hat, but did not follow the car because it did not fit the description given in the dispatch. About five minutes later, a second dispatch was sent out, describing the car as cream-over-orange, with Illinois license plates. Hawk caught up with the Chevrolet and followed it to a dead-end street, blocking the car's exit. He ordered Appellant, the driver, out of the car. Two other black males were lying on the floor of the front and back seats, and Hawk also observed a revolver on the front seat. The men were arrested and the car was impounded and subsequently searched pursuant to a search warrant. The search revealed over $2,000.00 in cash, several weapons, wallets belonging to patrons of the tavern, and several personal belongings, including clothing, matching the descriptions of what the robbers wore.
Appellant was sentenced to five concurrent terms of sixteen years. The court stated its reasons for finding aggravating circumstances to enhance the terms by six years to be:
"1. That there was a real threat of harm to the victims;
2. That there were five separate robberies committed;
3. That defendant used care in planning the commission of these offenses."
Appellant maintains this was an abuse of discretion because the real threat of harm was due solely to the use of weapons, which was inherent in elevating the charge from class C robbery to class B; there was only one transaction and one criminal intent; and there was no evidence of planning. He further argues the court should have mitigated his sentence due to his lack of convictions.
Ind.Code Sec. 35-38-1-7 permits the trial court to aggravate a sentence. This may be due to a number of reasons listed in the statute, although the court is not limited by these considerations. We will not revise a sentence authorized by statute unless such sentence is manifestly unreasonable in light of the nature of the offense and character of the offender. A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for whom such sentence was imposed. Mellott v. State (1986), Ind., 496 N.E.2d 396, 398.
Although Appellant maintains there is no evidence to support the court's finding that Appellant used care in planning the robberies, we disagree. Testimony showed the robbery occurred on the one day of the week the owner of the tavern had a substantial amount of cash on hand to cash payroll checks of customers. Further testimony showed Appellant and two others entered the tavern once, purportedly to speak to the owner about employment, and again to rob the tavern about an hour later. When the trio arrived to rob the tavern, they were armed and disguised entered from and covered both entrances, herded all of the victims into one location, cut all telephone wires, and made their escape. Clearly this evidence is sufficient to sustain a finding that the offense was carefully planned as opposed to being a spur of the moment occurrence. This sole aggravating factor is sufficient to sustain the sentence. However, Appellant has failed to show error in the court's utilization of multiple robberies as an aggravator. His only argument is that despite there being five victims and five robberies, they all arose from one transaction and one criminal intent. This contention in no way negates the trial court's aggravating the sentence due to five separate robberies of five separate victims. For these reasons we hold the trial court was within its discretion in aggravating the sentences.
Appellant further argues the trial court erred in considering prior arrests which did not result in convictions and in failing to consider his lack of convictions as a mitigating factor. First, it is not clear that Appellant's history of criminal activity was used by the court to aggravate the sentence; it is not listed in the court's rationale. Second, Ind.Code Sec. 35-38-1-7 contemplates consideration of a defendant's "history of criminal activity" and does not require such to be reduced to a conviction. Jackson v. State (1981), Ind., 426 N.E.2d 685, 689. Finally, the decision to consider a person's lack of criminal convictions as a mitigating factor is a discretionary decision on the part of a trial court. Ind.Code Sec. 35-38-1-7 (Burns 1985).
Appellant next contends the trial court erred in denying his Motion to Dismiss based upon failure to bring him before a magistrate in a speedy fashion and to provide counsel at the earliest time after the case became adversarial.
Appellant was arrested on Friday, September 25, 1981, and probable cause for a search warrant was established. On Monday, September 28, a hearing was held to establish probable cause, and informations were filed that day. Also, the court set bond and held over Appellant due to lack of jurisdiction. Although Appellant was in custody, he was not present at the hearing. The arrest warrants were served on Appellant the next day, Tuesday, September 29. On Wednesday, September 30, arraignment was set for October 5. On Monday, October 5, Appellant was present at the hearing, entered his plea, and was appointed counsel. On November 2, a preliminary hearing was set for November 9.
The following statutes were in effect when Appellant was arrested:
Ind.Code Sec. 35-33-7-1 (Burns Supp.1981): A person arrested without a warrant for a crime shall be taken promptly before a judicial officer....
Ind.Code Sec. 35-33-7-2 (Burns Supp.1981). At or before the initial hearing of a person arrested without a warrant for a crime, the facts upon which the arrest was made shall be submitted to the judicial officer, ex parte, in a probable cause affidavit [or] facts may be submitted orally under oath to the judicial officer.... If the judicial officer determines that there is probable cause to believe that any crime was committed and that the arrested person committed it, the judicial officer shall order that the arrested person be held to answer in the proper court....
Ind.Code Sec. 35-33-7-3 (Burns Supp.1981): When a person is arrested for a crime before a formal charge has been filed, an information or indictment shall be filed or be prepared to be filed at or before the initial hearing.... Before recessing the initial hearing and after the ex parte probable cause determination has been made, the court shall inform the defendant of his rights specified in ... this chapter.
Appellant argues that under Ind.Code Sec. 35-33-7-3, he should have been informed of the charges against him on September 28. He maintains the trial court's failure to do so precluded him from obtaining counsel and securing a witness who subsequently left the State and became unavailable.
The overriding concern in our statutes cited above, is that a defendant not be unduly detained or held in custody without a showing of probable cause. Here, Appellant was arrested on a Friday without a warrant. Probable cause was found to exist the following Monday, and informations were filed, Appellant was bound over, and bond was set. There was no undue delay. Although Appellant was not present at the probable cause hearing, such is contemplated in Ind.Code Sec. 35-33-7-2 (Burns Supp.1981). See also Gerstein v. Pugh (1975), 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54, 69. On Tuesday, Appellant was served his arrest warrants, and on Wednesday, arraignment was set for the following Monday. At the arraignment, one week after probable cause was determined, Appellant was present, entered his plea, and was appointed counsel. Appellant has failed to show that this procedure in any way deviated from the statutory requirements set forth above.
Appellant alleges the trial court erred in denying his Motion to Suppress and in admitting into evidence several items from the interior of the car he was driving when he was arrested. He contends the testifying police officer lacked sufficient personal knowledge.
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