Riddle v. State

• Decision Date: 23 April 1986
• Docket Number: No. 1284S484,1284S484
• Citation: 491 N.E.2d 527
• Parties: Ross K. RIDDLE, Appellant, v. STATE of Indiana, Appellee
• Court: Indiana Supreme Court

Page 527

491 N.E.2d 527

Ross K. RIDDLE, Appellant, v. STATE of Indiana, Appellee

No. 1284S484.

Supreme Court of Indiana.

April 23, 1986.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Petitioner, Ross K. Riddle, was convicted of Burglary, Rape, and Criminal Deviate Conduct, class B felonies, on September 10, 1978. On April 27, 1979, the trial court sentenced Petitioner to concurrent terms of twelve (12) years imprisonment for each conviction. The convictions were affirmed by this court in Riddle v. State (1980), 273 Ind. 112, 402 N.E.2d 958. Thereafter, Petitioner filed a Motion for Post-Conviction Relief which was denied. Petitioner now directly appeals this denial, alleging the sole issue that the post-conviction relief court failed to sufficiently articulate the aggravating circumstances upon which Petitioner's sentence enhancement was based.

On September 10, 1978, E.H., the victim, was sleeping on her couch when she was startled awake by a strange man, Petitioner, fondling her. Petitioner told the victim to be quiet and do as she was told or he would "smash her face in." The victim, extremely frightened, was then forced to perform oral sodomy and submit to sexual intercourse twice. Immediately after Petitioner left, the victim fled to a neighbor's residence and contacted the police.

At Petitioner's post-conviction hearing, the court conceded that he had not specifically articulated the aggravating circumstances he relied upon in imposing a sentence two years greater than the presumptive sentence. However, at the post-conviction hearing, the court proceeded to articulate his reasons. He indicated that the viciousness of Petitioner's threat to "smash" the victim's face and the fact that he raped the victim three times, were sufficient aggravating factors. Petitioner contends the court's reasons were insufficient to satisfy the statutory mandates of Ind.Code Sec. 35-4.1-4-7 (Burns Sec. 35-50-1A-7, repealed; for present provision see Ind.Code Sec. 35-38-1-7). This statute has been held to require the entry of a detailed statement of the reasons for imposing an enhanced sentence. Carman v. State (1985), Ind., 473 N.E.2d 618.

Before addressing the fact that the court did sufficiently articulate his reasons for enhancing Petitioner's sentence, we note that this issue was waived by Petitioner when he failed to raise this issue on direct appeal. In Carman v. State, supra, we held that any error committed by the trial judge for having failed to recite reasons for imposing an enhanced sentence was not fundamental and was waived by the petitioner's failure to raise the issue in his direct appeal. The same situation arises in this case.

Petitioner had fully available to him the opportunity to raise this issue on direct appeal and failed to do so. Post-conviction relief is not open for the raising of issues available to Petitioner upon his original appeal. Bailey v. State (1985), Ind., 472 N.E.2d 1260, reh. denied. Therefore, unless the error Petitioner now asserts rises to the level of fundamental error, which it does not, he has waived it.

Ind.Code Sec. 35-38-1-7 specifically provides that in determining sentencing the court shall consider the nature and circumstances of the crime. Further, as the statute provides, the court is not limited to factors which are specifically listed therein but may consider any facts of the crimes and of the defendant's character which are relevant. Miles v. State (1984) Ind., 468 N.E.2d 1040. Petitioner's argument is that there is a total absence of aggravating factors in this case and that the trial court's recital of aggravating factors was a mere...