Roney v. State, No. 20A04-0703-CR-129.

Docket NºNo. 20A04-0703-CR-129.
Citation872 N.E.2d 192
Case DateAugust 24, 2007
CourtCourt of Appeals of Indiana
872 N.E.2d 192
Kenneth L. RONEY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 20A04-0703-CR-129.
Court of Appeals of Indiana.
August 24, 2007.

[872 N.E.2d 196]

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.


Case Summary and Issues

Following a guilty plea, Kenneth Roney appeals his sixty-five-year sentence for murder, a felony. Roney raises two issues, which we restate as whether the trial court improperly found and weighed the mitigating and aggravating circumstances and whether his sentence is inappropriate given his character and the nature of the offense. We affirm, concluding that although the trial court found improper aggravating circumstances and failed to find a mitigating circumstance, the sixty-five-year sentence is still proper, and that the sentence is also not inappropriate.

Facts and Procedural History

On August 21, 2001, Roney, along with Robert Harper, Timothy Gaines, and Amber Lace drove to Chris Brown's apartment, where Lace was also living at the time. Although the record is not entirely clear, it appears that either Brown owed Harper money for drugs, or the group was upset with Brown for his treatment of Lace. Brown was not there when the group arrived, but they decided to wait for

872 N.E.2d 197

him. The group attempted to break into Brown's safe, and discussed various plans of what to do to Brown. When Brown returned, he saw Roney, Harper, and Gaines, and pulled out a handgun. Roney, Harper, and Gaines wrestled with Brown, and at some point the gun fired. During the course of the struggle, someone hit Brown with a golf club. The group then tied Brown up and put him on a bed. Shortly thereafter, a police officer arrived at the apartment in response to a 911 call regarding the gunshot. Harper told Roney to make Brown be quiet, and Roney hit Brown with a fire extinguisher. Brown died as a result of the injuries sustained during the beating.

On August 22, 2001, the State charged Roney with felony murder. On September 27, 2001, the State charged Roney with murder. That same day, pursuant to a plea agreement, Roney pled guilty to murder, with sentencing left to the trial court. In exchange, the State agreed to drop the felony murder charge and not file any additional charges relating to the incident. On December 6, 2001, the trial court held a sentencing hearing and sentenced Roney to sixty-five years, all executed. The trial court's sentencing order contains the following statement regarding mitigating and aggravating circumstances:

The Court finds as mitigating circumstances the Defendant's age of 25 years; the fact that the Defendant accepted responsibility for his actions; the fact that the Defendant is a drug addict; and the fact that the Defendant in open court apologized to the mother of the victim for his criminal conduct. The Court finds aggravating circumstances to be as follows: The Defendant's prior felony conviction of Forgery and the fact that the Defendant was on good behavior previously for a Marijuana case for a period of one (1) [year] but that the Defendant continued using drugs while on good behavior probation or up to and including the time of the commission of this offense. The Court further finds as a aggravating circumstance the fact that the Defendant committed this offense while on drugs, to wit: Ecstasy and Methamphetamine. All of said aggravating circumstances listed by the Court herein thus far indicate the Defendant's disdain for the authority of the Court and the laws of this state. The Court further finds as an aggravating circumstance the fact that the Defendant continued to use drugs in spite of his criminal convictions. The Court further finds that the Defendant inflicted multiple injuries upon the victim in this case and that the Defendant together with his co-defendants committed multiple crimes upon the victim by beating him with a golf club, tying [sic] him up and striking him in the back and head with a fire extinguisher. The Court further finds that all of said criminal offenses resulting in the death of the victim were committed while an infant child was in the apartment and the Defendant herein and others were under the influence of drugs and may have used drugs while said infant child was present. The Court finds said violence in the presence of a minor child created a particularly dangerous environment for the infant child. The Court further finds as an aggravating circumstance the fact that the Defendant used a fire extinguisher to beat the victim to avoid detection and apprehension and further that the Defendant herein wiped his fingerprints off with his shirt so that [he] could further escape detection. The Court further finds that the Defendant has used drugs since age 15 indicating his contempt for the law and the authority of the court with respect to such matters. The Court further finds that the Defendant

872 N.E.2d 198

and others committed multiple offenses upon the victim both charged and uncharged and could have been charged with the offenses of Robbery and Criminal Confinement by virtue of tying [sic] up the Defendant [sic] and beating him when taking property from him by the use of force. The Court further finds that in light of the particularly violent nature of the crime the Defendant is in need of rehabilitation that can only be provided in a penal facility. The Court further finds as an aggravating circumstance the fact that probation and a suspension of sentence has been ineffective in the past to cause the Defendant to cease from committing criminal behavior. The Court further finds as an aggravating circumstance the fact that the Defendant herein sought no medical help or attention for the victim after the infliction of injuries upon him including the multiple injuries from multiple weapons. The Court finds this to be particularly callous on the part of the Defendant herein. The Court further finds as an aggravating circumstance the fact that the Defendant and the victim were not acquainted with each other and the Defendant and other co-defendants were lying in wait for the victim. The Court further finds that imposition of less than an enhanced sentence would depreciate the seriousness of the offenses based upon the facts described in this case.

Appellant's Appendix at 161-63.

On June 5, 2006, Roney filed a petition for permission to file a belated appeal. On February 5, 2007, the trial court granted this petition. Roney now appeals.

Discussion and Decision
I. Aggravators and Mitigators

Under the presumptive sentencing scheme,1 if the trial court imposes a sentence in excess of the statutory presumptive sentence, it must identify and explain all significant aggravating and mitigating circumstances and explain its balancing of the circumstances. Rose v. State, 810 N.E.2d 361, 365 (Ind.Ct.App.2004). We will not modify the trial court's sentence unless it is clear that the trial court's decision was clearly "against the logic and effect of the facts and circumstances before the court." Id.

Even when we conclude that the trial court abused its discretion in finding aggravating circumstances or failing to find mitigating circumstances, we will not necessarily reverse the sentence. Instead, "we have the option to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level." Cotto v. State, 829 N.E.2d 520, 525 (Ind.2005).

A. Aggravating Circumstances
1. Applicability of Blakely to Roney's Case

Roney argues that the trial court's finding and consideration of several factors violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that where facts are used to increase a defendant's sentence beyond a statutory maximum, the facts must be either admitted by the defendant or found

872 N.E.2d 199

by a jury beyond a reasonable doubt). Here, Roney's sentence was entered before Blakely was decided, and he filed his appeal as a belated appeal. Therefore, his sentence is not subject to Blakely. Gutermuth, 868 N.E.2d at 428.2 The trial court's consideration of aggravators not admitted by him was not improper.

Although Blakely does not apply, we will still conclude that the trial court improperly found an aggravator if that circumstance has no support in the record. See Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007); cf. Gardner v. State, 270 Ind. 627, 638, 388 N.E.2d 513, 520 (1979) ("A sentence based on materially untrue assumptions violates due process."); Brooks v. State, 555 N.E.2d 1348, 1350 (Ind.Ct.App.1990) ("[The defendant] had a right to have his sentence based on accurate information").

2. Roney's Substance Abuse

Roney concedes that the trial court properly found as an aggravating circumstance that Roney had used drugs throughout his life. A history of substance abuse may constitute a valid aggravating factor. See Iddings v. State, 772 N.E.2d 1006, 1018 (Ind.Ct.App.2002), trans. denied. We conclude that the trial court properly found this aggravating circumstance.

On the other hand, Roney argues, and the State concedes, that the trial court improperly found as an aggravating circumstance that Roney used marijuana while he was on "good behavior." The record indicates that Roney admitted to drug abuse, but denied using drugs while on "good behavior." The State introduced no evidence to the contrary. Therefore, we agree that the trial court abused its discretion in finding this aggravating circumstance.

3. Need for Rehabilitation in a Correctional Facility

Roney also argues that the aggravating factor of Roney's need for treatment in a correctional facility was improper. As long as the...

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164 practice notes
  • Ramon v. State, No. 17A03-0707-CR-333.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 10, 2008
    ...for a murder conviction." (quoting Wooley v. State, 716 N.E.2d 919, 929 (Ind.1999))); Wooley, 716 N.E.2d at 929; Roney v. State, 872 N.E.2d 192, 203-04 (Ind.Ct.App.2007) (holding previous conviction of forgery should not be considered a significant aggravating circumstance in the conte......
  • Conley v. State, No. 58S00–1011–CR–634.
    • United States
    • October 22, 2012
    ...mitigators and aggravators when considering a Rule 7(B) claim, but may look to other evidence in the record. See Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied. As to the nature of the offense, there is no question this was a brutal crime. Conley strangled his younger ......
  • Rich v. State, No. 79A05-0712-CR-687.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 16, 2008
    ...498 (Ind.Ct.App. 2004), trans. denied. When conducting this inquiry, we may look to any factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied. The burden is on the defendant to demonstrate that his sentence is inappropriate. Childress, 848 N.E......
  • Drakulich v. State, No. 49A05-0612-CR-690.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2007
    ...he was convicted of federal crimes, thereby somewhat diminishing the significance of this mitigating circumstance. See Roney v. State, 872 N.E.2d 192, 207 (Ind. Ct.App.2007) (recognizing that "despite [the defendant's] minor criminal history, he was not leading a law-abiding life"......
  • Request a trial to view additional results
164 cases
  • Ramon v. State, No. 17A03-0707-CR-333.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 10, 2008
    ...sentence for a murder conviction." (quoting Wooley v. State, 716 N.E.2d 919, 929 (Ind.1999))); Wooley, 716 N.E.2d at 929; Roney v. State, 872 N.E.2d 192, 203-04 (Ind.Ct.App.2007) (holding previous conviction of forgery should not be considered a significant aggravating circumstance in the c......
  • Conley v. State, No. 58S00–1011–CR–634.
    • United States
    • October 22, 2012
    ...mitigators and aggravators when considering a Rule 7(B) claim, but may look to other evidence in the record. See Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied. As to the nature of the offense, there is no question this was a brutal crime. Conley strangled his younger ......
  • Rich v. State, No. 79A05-0712-CR-687.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 16, 2008
    ...498 (Ind.Ct.App. 2004), trans. denied. When conducting this inquiry, we may look to any factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind.Ct.App.2007), trans. denied. The burden is on the defendant to demonstrate that his sentence is inappropriate. Childress, 848 N.E......
  • Drakulich v. State, No. 49A05-0612-CR-690.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2007
    ...he was convicted of federal crimes, thereby somewhat diminishing the significance of this mitigating circumstance. See Roney v. State, 872 N.E.2d 192, 207 (Ind. Ct.App.2007) (recognizing that "despite [the defendant's] minor criminal history, he was not leading a law-abiding life"), trans. ......
  • Request a trial to view additional results

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