Rose v. State
| Decision Date | 16 June 2004 |
| Docket Number | No. 02A03-0402-CR-58.,02A03-0402-CR-58. |
| Citation | 810 N.E.2d 361 |
| Parties | Benjamin ROSE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William S. Lebrato, Deputy Public Defender, Fort Wayne, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Benjamin Rose was charged with Counts I, II and III, rape, a Class A felony;1 Counts IV, V, VI and VII, criminal deviate conduct, a Class A felony;2 Count VIII, burglary, a Class A felony;3 Count IX, criminal confinement, a Class B felony;4 and Counts X, XI and XII, robbery, a Class B felony.5 Rose pled guilty to burglary, criminal confinement, two counts of criminal deviate conduct, and three counts of robbery. After a hearing, the trial court sentenced Rose to 40 years for each criminal deviate conduct conviction, 30 years for burglary, and 10 years for criminal confinement, and it ordered those sentences served consecutively. The trial court also sentenced Rose to 15 years for each count of robbery, ordering those sentences to be served concurrent with each other but consecutive to the other convictions. Rose's total sentence is 135 years.
Rose appeals, alleging the trial court improperly evaluated the aggravating and mitigating circumstances and his sentence is inappropriate.6 We affirm.
On January 10, 2003, 16 year old Rose had been drinking and smoking marijuana. He and a friend, Christopher Caskey, went to the apartment of L.J., J.T. and Je.T.,7 with the intent to commit theft. Rose gave Caskey a gun.
Caskey knocked on the door and when Je.T. opened the door, Caskey displayed the gun and pushed his way inside. After being locked outside for a few minutes, Rose entered the apartment. Caskey, who was still holding the gun, ordered L.J. and J.T.8 to remove their clothing and perform oral sex on Rose. Caskey raped J.T. twice and L.J. once, and also forced them to perform oral sex on him and on each other. Je.T. was forced to sit in a chair with his head covered during these events, and L.J. was forced to perform oral sex on him.9 Caskey and Rose each held the gun at different points, although Rose may not have pointed the gun at any of the victims. At some point, Caskey slapped one of the women. Rose and Caskey took wallets and jewelry from the victims as well as a DVD player and DVDs from the apartment. The victims were told not to move, and Rose and Caskey left. Approximately 30 seconds later, Rose and Caskey came back to check on the victims. Rose and Caskey left a second time, and the victims reconnected the telephone and contacted the police. J.T. had to be taken to the hospital to be treated for pain, cramping, and premature labor.
The court found two aggravating circumstances: Rose's criminal history, and the nature and circumstances of the crime.10 The trial court found one mitigating circumstance, that Rose pled guilty and accepted responsibility for his actions. Rose claims the trial court overlooked a number of mitigators, assigned insufficient weight to mitigators, and improperly balanced the aggravators and mitigators.
A trial court has broad discretion to determine the sentence imposed on a defendant. Henderson v. State, 769 N.E.2d 172, 179 (Ind.2002). That discretion includes the ability to increase or decrease the sentence from the presumptive based on aggravating or mitigating factors and to determine whether sentences should be served consecutively or concurrently. Id. We will not modify the sentence imposed by the trial court unless a clear abuse of discretion has occurred. Id. An abuse of discretion has occurred if the trial court's decision is against the logic and effect of the facts and circumstances before the court. Krumm v. State, 793 N.E.2d 1170, 1186 (Ind.Ct.App.2003).
When the trial court deviates from the presumptive sentence, it is required to: (1) identify all significant aggravating and mitigating circumstances;11 (2) state why each circumstance is aggravating or mitigating; and (3) explain its evaluation and balancing of the aggravating and mitigating circumstances to arrive at the sentence imposed. Henderson, 769 N.E.2d at 179.
Rose contends the trial court failed to consider the following factors as mitigators: Rose was sixteen at the time of the offense, Rose had a troubled childhood, the crime was a result of circumstances unlikely to reoccur, Rose acted under strong provocation by Caskey, and Rose's imprisonment would result in undue hardship to him. Rose also claims the trial court merged two mitigating factors into one, thereby failing to consider Rose's willingness to testify against Caskey as a mitigating circumstance.
A sentencing court must consider all evidence of mitigating circumstances submitted by the defendant; however, whether to find a mitigator within that evidence is within the court's discretion. Id. If the evidence in support of the mitigator is "highly disputable in nature, weight, or significance" then the trial court does not err by declining to find that mitigator. Id. (quoting Smith v. State, 670 N.E.2d 7, 8 (Ind.1996)). If the court completely ignores "mitigating circumstances clearly supported by the record," we may infer that the trial court improperly overlooked them. Id. Nevertheless, "the court is obligated neither to credit mitigating circumstances in the same manner as would the defendant, nor to explain why he or she has chosen not to find mitigating circumstances." Id.
From a review of the sentencing transcript, it is clear the trial court did not ignore any of the mitigating factors proposed by Rose. We review the evidence supporting each proposed mitigator to determine whether the trial court abused its discretion by declining to find the mitigators proposed by Rose.
The trial court considered Rose's age, found it "not a significant mitigating circumstance," (Sent. Tr. at 31), and stated: "at the young age of seventeen,12 this young man has acquired a significant criminal history such as would deprive that age of being mitigating." (Id.) (footnote added). The Appendix does not contain a pre-sentence report; as a result, we must rely on the statements of counsel with respect to Rose's criminal history:
I count seven adjudications. Possession of stolen auto parts, which would be a felony if he had been an adult. Operating a motor vehicle without a license, possession of alcohol by a minor, possession of a product with an altered identification, criminal trespass, operating while intoxicated and reckless possession of paraphernalia.
(Id. at 16.) "[H]e's also been arrested several other times for alcohol offenses as well as receiving stolen property and auto theft and stealing offenses." (Id. at 17.)
Our supreme court has held that young age does not "automatically" qualify as a significant mitigator. Gross v. State, 769 N.E.2d 1136, 1141 n. 4 (Ind.2002). In fact, it Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.1999). Accordingly, when a defendant is in his teens or early twenties, chronological age is only the starting point. Monegan v. State, 756 N.E.2d 499, 504 (Ind.2001). What really must be determined is whether the young offender is "clueless" or "hardened and purposeful." Id.
The trial court weighed Rose's age with respect to the crimes he committed along with his criminal history. We cannot say the trial court abused its discretion in not considering Rose's age as a mitigating circumstance. See id. at 505.
The trial court also considered Rose's troubled childhood. Evidence presented at the sentencing hearing and through Rose's Pre-Sentence Memorandum indicates his childhood was marked by a lack of parental supervision and support. A psychological evaluation performed by Dr. David Lombard when Rose was 13 years old found that Rose's "family problems are worse than most." (App. at 59.) A photograph of Rose's bedroom admitted as an exhibit is touching, showing no signs of decoration other than a Wal-Mart bag tacked to one wall. The trial court found "that childhood unfortunate though it may have been, does not mitigate what happened here." (Sent. Tr. at 31.) While we must agree that Rose's childhood was pitiful, the trial court did not abuse its discretion when it declined to find that troubled childhood was a mitigator. See Coleman v. State, 741 N.E.2d 697, 700 (Ind.2000)
(), reh'g denied, cert. denied 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001), reh'g denied 534 U.S. 1158, 122 S.Ct. 1137, 151 L.Ed.2d 1028 (2002).
The trial court also declined to credit Rose's argument he was unlikely to reoffend. Specifically, the trial court found: "I don't know why, given the history he has and the severity of the offenses committed, there's no reason to believe that given the opportunity he wouldn't do it again." (Sent. Tr. at 32.) No abuse of discretion occurred.
Rose pointed out that his prior juvenile adjudications were non-violent and related to his alcohol and drug abuse. He claims his alcohol and drug addiction is a mitigator. However, the trial court noted that Rose failed to accept the drug abuse and alcohol treatment offered to him on at least three different occasions.
He was given at least three opportunities to deal with this problem and chose not to, and I understand that's quite a complex issue, but in the meantime, he received the benefit if one presumes that treatment in juvenile court is a benefit, he has had made available to him a great number of resources of the juvenile court, none of which seemed to assist him in any way, which means that he must have chosen, at least...
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