Sales v. State

• Citation: 464 N.E.2d 1336
• Decision Date: 21 June 1984
• Docket Number: No. 4-683A192,4-683A192
• Parties: Joseph E. SALES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1336

464 N.E.2d 1336

Joseph E. SALES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-683A192.

Court of Appeals of Indiana,

Fourth District.

June 21, 1984.

Mark A. Ryan, Public Defender, Tippecanoe County, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Defendant-Appellant Joseph E. Sales, convicted at jury trial of battery, seeks review of his sentence, asserting that the trial court erred: 1) in admitting into evidence at sentencing hearing a copy of a police report relating to defendant's juvenile record, 2) in imposing a term of 30 days imprisonment without credit time as a condition of a suspended sentence, 3) in ordering restitution for the victim's injuries as a further condition of probation, despite the jury's failure to convict defendant of battery causing bodily injury, and 4) in ordering restitution without inquiry into the defendant's ability to pay.

Originally charged by information with battery causing bodily injury, a class A misdemeanor, Sales was convicted by jury on April 13, 1983, of the lesser included offense of battery as a class B misdemeanor under IND.CODE 35-42-2-1. The evidence at trial indicated that the victim was sitting in a parked car when the defendant accosted him and struck him about the face several times, breaking three of his teeth. The victim then attempted to avoid further injury by driving away, but in his confusion collided with a trash dumpster, damaging his vehicle.

At sentencing on April 22, 1983, the trial court imposed a term of imprisonment of 180 days, the maximum sentence for a class B misdemeanor under IND.CODE 35-50-3-3, and fined the defendant $100. The judge suspended this sentence, however, upon the conditions, inter alia, that defendant pay restitution to his victim for personal injuries and property damage, and that he serve a 30-day jail term without credit for good time.

Appellant does not challenge his conviction but asserts that the trial court erred in several respects at sentencing. First, he contends that the trial court erred in admitting into evidence at the sentencing hearing a copy of a police report regarding a prior battery committed by the defendant as a juvenile. The State's witness introducing the report, Juvenile Probation Officer Mary Gobble, had access to this report while supervising Sales' earlier probation. Before testifying at trial, however, she had never seen a recent entry on the face of the document, a police detective's handwritten notation reading:

"Dan! This is the last battery case which our department investigated. The pattern appears to be the same.

Withers"

Appellant characterizes this police report as hearsay, improperly admitted under the business records exception because Probation Officer Gobble neither made the original entry nor had custodial care of the police records, and because she lacked any knowledge regarding the handwritten notation.

As appellant concedes, however, the rules of evidence are considerably relaxed at sentencing. Reliance upon hearsay in assessing punishment is not per se improper, Williams v. Oklahoma, (1959) 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516; United States v. Harris, (7th Cir.1977) 558 F.2d 366, and our courts have sanctioned the admission of juvenile records and precommitment reports containing hearsay. Carlin v. State, (1970) 254 Ind. 332, 259 N.E.2d 870; Hineman v. State, (1973) 155 Ind.App. 293, 292 N.E.2d 618. The court in Hineman cites the language of Williams v. New York, (1949) 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed.2d 1337, in its discussion of the rationale for this relaxation of evidentiary rules:

"A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics."

As in Hineman, the sentencing judge here considered the report concerning defendant's juvenile record only after the question of guilt had been determined. Appellant has failed in several respects to demonstrate that the admission of this evidence was prejudicial in the determination of his sentence. First, the handwritten notation related chiefly to the question of defendant's guilt in the present case and otherwise added little to the facts recited in the police report. Secondly, the defense never questioned the veracity of these underlying facts regarding the battery committed as a juvenile, but rather openly admitted to the prior adjudication at sentencing. Finally, we have no indication that the sentencing judge unduly relied upon information contained in the police report; suspension of defendant's sentence would in fact support an inference to the contrary. Where the accuracy of the hearsay information is uncontested, and in the absence of any indication that the court has improperly relied upon the evidence, we can hardly assume that defendant has suffered prejudice from its admission. See United States v. Harris, supra, 558 F.2d at 372-374. We therefore find no abuse of discretion in the admission of this evidence at sentencing.

Appellant also argues that the trial court erred in ordering as a condition of his probation that he serve a 30-day term of imprisonment without credit for good time as mandated by IND.CODE 35-50-6-3. Appellant rightly notes that while the sentencing judge is afforded substantial latitude in the decision to suspend sentence and in determining the conditions of probation, Culley v. State, (1979) 179 Ind.App. 345, 385 N.E.2d 486, the court is bound by the statutory provisions which govern sentencing. Under IND.CODE 35-7-2-1(c) (repealed 1983 Acts, P.L. 311), however, the court in ordering a lesser jail term as a condition of probation is precluded from allowing the defendant credit for good time:

"As a condition of probation, the court may also require that the person serve a term of imprisonment in an appropriate facility...