Perry v. State

Decision Date22 April 1983
Docket NumberNo. 382S119,382S119
PartiesElbert PERRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Linley E. Pearson, Atty. Gen., James W. Turpen, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) pled guilty to Voluntary Manslaughter, Ind.Code Sec. 35-42-1-3 (Burns 1979) and was fined five thousand dollars ($5,000.00) and sentenced to twenty (20) years imprisonment. On appeal, he presents only one issue: whether the trial court abused its discretion in enhancing the presumptive sentence by ten years.

Before proceeding to Defendant's contentions, we note the standard of review, Ind.R.App.Rev.Sen. 2:

"(1) The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.

"(2) A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed."

Defendant first contends that the trial court failed to consider factors relevant to Ind.Code Sec. 35-4.1-4-7(a) (35-50-1A-7(a) (Burns 1979)):

"In determining what sentence to impose for a crime, the court shall consider the risk that the person will commit another crime, the nature and circumstances of the crime committed, and the prior criminal record, character, and condition of the person."

Specifically, he refers to his chronic kidney ailment, which requires dialysis treatments three times per week, and to the victim's, his wife's, openly adulterous behavior, which, contrary to Defendant's argument, is not a mitigating circumstance and does not indicate that Defendant is unlikely to commit another crime. Defendant cites nothing in the record which discloses that dialysis treatments are unavailable during incarceration. The record reveals nothing, which suggests that the sentence is manifestly unreasonable upon these grounds.

Defendant next points to Ind.Code Sec. 35-4.1-4-7(b) (35-50-1A-7(b) (Burns 1979)), the mitigating circumstances provision. He notes facts (justifications) surrounding the incident and facts relevant to his character, all of which assertedly support eight (8) of the ten (10) subsections in the provision. In determining the sentence, the trial court was not obligated to credit or attach great weight to Defendant's evidence of mitigating circumstances. 1 The provision, using the word "may", is cast in discretionary terms. Cornelius v. State, (1981) Ind., 425 N.E.2d 616, 619. Moreover, even had the trial court found mitigating circumstances, it, nevertheless, had the discretion to weigh those circumstances against aggravating circumstances, if any, and thereafter, to increase or decrease the sentence within the statutory limitations. Abercrombie v. State, (1982) Ind., 441 N.E.2d 442, 445; Wolfe v. State, (1981) Ind., 426 N.E.2d 647, 657. 2

Defendant admits that he has a criminal record; however, he seeks to diminish its relevance by emphasizing its remoteness and its non-violent character. Neither factor precluded the trial court from considering the prior conviction as an aggravating circumstance. Page v. State, (1982) Ind., 442 N.E.2d 977, 978; Harris v. State, (1979) Ind., 396 N.E.2d 674, 677.

Additionally, Defendant argues, and we agree, that the trial court's statement of his criminal history was non-specific and conclusory and therefore not in compliance with Page v. State, (1981) Ind., 424 N.E.2d 1021. However, he did not present this claim in his motion to correct errors; consequently, because the record discloses the factual basis for the trial court's conclusion about Defendant's history of criminal activity, we must assume that counsel merely abandoned a meritless assignment of error. Beasley v. State, (1983) Ind. 445 N.E.2d 1372, 1375.

Defendant next claims that the trial court erred in "solely" utilizing a "Felony Worksheet", which contains sentencing criteria established by the Ohio Bar Foundation, to arrive at the sentence. This matter was not presented by the motion to correct errors. Additionally, the trial court stated, on the record, that it had consulted the pre-sentence investigation report and had considered the evidence presented at the sentencing hearing.

Next, Defendant notes that the trial court cited aggravating circumstances, which paraphrase the elements of Voluntary Manslaughter, and argues that such conclusions, without...

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16 cases
  • Games v. State
    • United States
    • Indiana Supreme Court
    • 14 Marzo 1989
    ...is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does. Perry v. State (1983), Ind., 447 N.E.2d 599. However, the failure of the trial court to find mitigating circumstances which are clearly supported by the record may reaso......
  • Tumulty v. State, 48A02-9409-CR-539
    • United States
    • Indiana Appellate Court
    • 28 Febrero 1995
    ...the wisdom and logic of the majority's position which in effect is: "Why not?". Our appellate courts have in fact done so. Perry v. State (1983) Ind., 447 N.E.2d 599; Browning v. State (1991) 2d Dist. Ind.App., 576 N.E.2d 1315. The majority makes eminent sense when it states that our Suprem......
  • Timmons v. State
    • United States
    • Indiana Supreme Court
    • 12 Diciembre 1986
    ...the weight accorded mitigating circumstances and the reduction of a sentence are discretionary with the trial court. Perry v. State (1983), Ind., 447 N.E.2d 599. IV. Sufficiency of Evidence--Habitual Appellant argues that the evidence presented by the State at the habitual offender proceedi......
  • Corbett v. State
    • United States
    • Indiana Supreme Court
    • 19 Marzo 2002
    ...the trial court from considering it as an aggravating circumstance. Bowling v. State, 493 N.E.2d 783 (Ind.1986) (citing Perry v. State, 447 N.E.2d 599, 600 (Ind. 1983)). The defendant was previously convicted of burglary in Arkansas in 1986 and grand theft in Idaho in 1983.5 These past felo......
  • Request a trial to view additional results

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