McElroy v. State

• Decision Date: 02 May 2007
• Docket Number: No. 49S02-0605-CR-174.,49S02-0605-CR-174.
• Citation: 865 N.E.2d 584
• Parties: Tommy McELROY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

865 N.E.2d 584

Tommy McELROY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S02-0605-CR-174.

Supreme Court of Indiana.

May 2, 2007.

Bruce E. Andis, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney

General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0505-CR-381

RUCKER, Justice.

Statement of the Case

The issue presented is whether the trial court abused its discretion when it imposed enhanced concurrent sentences for two counts of reckless homicide and one count of criminal recklessness. Finding that the valid aggravating factor is substantiated by the trial court's sentencing statements and that it supports an enhanced sentence, we conclude there was no abuse of discretion.

Facts and Procedural History

On the afternoon of July 29, 2003, a paint truck owned by Roland's Painting and Trim broke down after leaving a job site in Indianapolis. Another paint truck, owned by the company and already carrying nine employees, stopped to pick up the eight stranded employees. The eight painters joined five others in the enclosed cargo area in the back of the truck. In addition to holding thirteen people, the cargo area contained highly flammable paints, lacquers, and thinners, and all of the passengers were aware of these substances. The rear cargo door was the only exit from the cargo area, and for ventilation the workers riding in the back propped up the overhead cargo door with a small ladder and secured it with a bungee cord.

Tommy McElroy sat next to Otis Turner in the cargo area of the paint truck and repeatedly used his lighter in an effort to ignite the newspaper that Turner was reading despite Turner's demand that he stop. Turner then stood and poured lacquer thinner onto the truck floor in the midst of the employees. McElroy leaned over and flicked his lighter toward the lacquer, causing the fumes to ignite immediately and engulf the cargo area in flames. The trapped men banged on the walls of the cargo area, and the driver pulled the truck over on Interstate 465. All of the painters riding in the cargo area were seriously burned, and two, Turner and John (Jay) Webster, died from their injuries.

The State charged McElroy with two counts of reckless homicide, Class C felonies, see Ind.Code § 35-42-1-5, for the deaths of Turner and Webster and one count of criminal recklessness, a Class D felony, see I.C. § 35-42-2-2(d), for the injuries to the other ten men. On January 10, 2005, McElroy pleaded guilty as charged pursuant to a plea agreement that called for his sentences to be served concurrently but otherwise left the State and the defense free to argue aggravating and mitigating factors. At the conclusion of a hearing during which both sides presented several witnesses' testimony, in an oral statement the trial court found the following aggravating factor: the nature and circumstances of the offense, including the effect upon the victims and their family members. Tr. at 89-90. The court also found the following mitigating factors: (1) the defendant pleaded guilty and accepted responsibility; (2) the defendant had "no prior criminal history;" and (3) long term incarceration would pose a hardship upon the defendant's family. Tr. at 88. Finding that the sole aggravating factor outweighed the mitigating factors, the trial court sentenced McElroy to a total of eight years in the Department of Correction. Tr. at 90. The written abstract of judgment, issued the same day and signed by the trial court, was different in two ways from the oral sentencing statement. Instead of listing the lack of criminal history as a mitigating factor, the abstract of judgment reads, "Court finds aggravating the defendant has a prior criminal history." App. at 14. It also found as aggravating the risk that the defendant would commit another crime. The abstract of judgment otherwise reflected the same aggravating and mitigating factors, recited that the aggravators outweighed the mitigators, and showed a sentence of eight years. Id.

McElroy appealed. Noting the discrepancies between the trial court's oral sentencing statement and the abstract of judgment, the Court of Appeals reversed and remanded for resentencing, concluding that it could not "say with confidence that McElroy's enhanced sentence should be affirmed on appeal." McElroy v. State, No. 49A02-0505-CR-381, slip op. at 12, 839 N.E.2d 818 (Ind.Ct.App. Dec. 8, 2005). Having previously granted transfer, we now affirm the trial court.

Discussion

McElroy raises two issues on appeal. First, he argues that the trial court erred by using improper aggravating factors to impose an enhanced sentence. Second, he argues that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We will address each in turn.

Generally, sentencing determinations are within the trial court's discretion. Cotto v. State, 829 N.E.2d 520, 523 (Ind. 2005). We review the trial court's sentencing decision for an abuse of that discretion. Powell v. State, 769 N.E.2d 1128, 1134 (Ind.2002). An abuse of discretion has occurred when the sentencing decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006). Trial courts have the discretion to deviate from the presumptive¹ sentence upon finding and weighing any aggravating or mitigating circumstances. Bacher v. State, 722 N.E.2d 799, 801 (Ind.2000). However, "[w]hen a trial court enhances a presumptive sentence, it must state its reasons for doing so, identifying all significant aggravating and mitigating factors; stating the facts and reasons that lead the court to find the existence of each such circumstance; and demonstrating that the court has evaluated and balanced the aggravating and mitigating factors in determining the sentence." Id. This serves to guard against arbitrary sentences and to provide an adequate basis for appellate review. Id.; Morgan v. State, 675 N.E.2d 1067, 1074 (Ind.1996).

As a general rule, when we are faced with a discrepancy between a sentencing order and an abstract of judgment, we conclude that the sentencing statement rather than the abstract of judgment controls. This is so because an abstract of judgment is distinct from a written sentencing order and is not the "judgment of conviction." Robinson v. State, 805 N.E.2d 783, 794 (Ind.2004). It is a "form issued by the Department of Correction and completed by trial judges for the convenience of the Department." Id. at 792. In contrast, a valid written judgment meets the statutory criteria of Indiana Code section 35-38-3-2.

In this case, however, the information required of a sentencing judgment is contained within the abstract of judgment. More specifically, Indiana Code section 35-38-3-2 requires the trial court to prepare and certify a written judgment of conviction and sentence including the following information: "(1) the crime for which the convicted person is adjudged guilty and the classification of the criminal offense; (2) the period, if any, for which the person is rendered incapable of holding any office of trust or profit; (3) the amount of the fines or costs assessed, if any, whether or not the convicted person is indigent, and the method by which the fines or costs are to be satisfied; (4) the amount of credit, including credit time earned, for time spent in confinement before sentencing; and (5) the amount to be credited toward payment of the fines or costs for time spent in confinement before sentencing." Here, the abstract of judgment contains this information and is certified. App. at 14. Therefore, we are faced with a situation in which the oral and written sentencing statements conflict.

The approach employed by Indiana appellate courts in reviewing sentences in non-capital cases is to examine both the written and oral sentencing statements to discern the findings of the trial court. Corbett v. State, 764 N.E.2d 622, 631 (Ind.2002) ("In reviewing a sentencing decision in a non-capital case, we are not limited to the written sentencing statement but may consider the trial court's comments in the transcript of the sentencing proceedings.") (quoting Walter v. State, 727 N.E.2d 443, 449 (Ind.2000)); Strong v. State, 538 N.E.2d 924, 929 (Ind.1989) ("In addition to the discussion set forth in the separate sentencing order, this Court has reviewed the trial court's thoughtful comments at the conclusion of the sentencing hearing."); see also Gibson v. State, 856 N.E.2d 142, 147 (Ind.Ct.App.2006); Powell v. State, 751 N.E.2d 311, 315 (Ind.Ct.App. 2001); Newman v. State, 719 N.E.2d 832, 839 (Ind.Ct.App.1999). Rather than presuming the superior accuracy of the oral statement, we examine it alongside the written sentencing statement to assess the conclusions of the trial court. This Court has the option of crediting the statement that accurately pronounces the sentence or remanding for resentencing. Willey v. State, 712 N.E.2d 434, 446 n. 8 (Ind.1999) ("[T]he trial court issued its written sentencing order that was consistent with the Abstract of Judgment, but at odds with the oral pronouncement at the sentencing hearing. . . . Based on the unambiguous nature of the trial court's oral sentencing pronouncement, we conclude that the Abstract of Judgment and Sentencing Order contain clerical errors and remand this case for correction of those errors."). This is different from pronouncing a bright line rule that an oral sentencing statement trumps a written one.

We now proceed to examine both sentencing statements. McElroy challenges the aggravating circumstances that are identified in the oral and written sentencing statements. The defendant asserts that none of the aggravators were proper.

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