Smithers v. State, No. 41A01-0512-CR-560 (Ind. App. 12/12/2006)
| Decision Date | 12 December 2006 |
| Docket Number | No. 41A01-0512-CR-560.,41A01-0512-CR-560. |
| Parties | DAVID P. SMITHERS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
ANDREW S. ROESENER, Baldwin & Roesener, Franklin, Indiana, ATTORNEYFOR APPELLANT.
STEVE CARTER, Attorney General of Indiana, GARY DAMON SECREST, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
David P. Smithers belatedly appeals his sentence imposed following his plea of guilty to conspiracy to commit murder as a class A felony, child molesting as a class B felony, two counts of child molesting as class C felonies, and dissemination of matter harmful to minors as a class D felony.
We affirm.
Whether the trial court abused its discretion in sentencing Smithers.
Between November 24 and 27, 2000, Smithers was babysitting for five-year-old S.M. and made her watch a pornographic movie. During that same time period, Smithers also pulled down his pants, put his penis in S.M.'s mouth, rubbed his penis on S.M.'s buttocks, and touched S.M.'s vaginal area. Thereafter, the State charged Smithers with Count I, child molesting as a class A felony; Count II, child molesting as a class C felony; Count III, child molesting as a class C felony; and Count IV, dissemination of matter harmful to minors as a class D felony in cause number 41D03-0012-CF-194 ("Cause #194").1 The State also filed a motion for a protective order on behalf of S.M and the trial court granted it.2
Around August 27, 2001, while Smithers was incarcerated in the Johnson County Jail on the charges in Cause #194, he entered into an agreement with fellow inmate, Codell Wombles, for Wombles to murder S.M. Smithers drew a map showing where S.M. lived and gave it to Wombles, described S.M.'s appearance to Wombles, and gave Wombles some money. On August 31, 2001, the State charged Smithers with conspiracy to commit murder as a class A felony under cause number 41D03-0108-CF-126 ("Cause #126").3
On November 20, 2002, Smithers entered into a plea agreement with the State on Cause #126. Smithers agreed to plead guilty as charged, and the State agreed to open sentencing by the trial court. That same day, the trial court held a hearing, and Smithers pleaded guilty to conspiracy to commit murder as a class A felony.
On December 5, 2002, Smithers entered into a plea agreement with the State on Cause #194. Smithers agreed to plead guilty to Count I, child molesting amended to a class B felony, and to Counts II, III, and IV as charged, and the State agreed to make the following sentencing recommendations: (1) open sentencing on all counts; (2) sentences on Counts I through IV be served concurrently to each other; and (3) the sentence imposed be served consecutively to the sentence in Cause #126.4 That same day, the trial court held a hearing, and Smithers pleaded guilty to the three child molesting charges and the dissemination of matter harmful to minors charge.
On January 15, 2003, the trial court held an evidentiary sentencing hearing on both Cause #126 and #194. The State introduced stipulated Exhibits 1-9 and Exhibit 10, to which Smithers did not object. Exhibits 1-4 were audiotapes of Smithers' conversations with Wombles in which he conspired to murder S.M.; Exhibits 5-8 were the corresponding transcripts of the audiotapes; Exhibit 9 was the map that Smithers made; and Exhibit 10 was a victim impact statement from S.M.'s mother.5 During the hearing, the State informed the trial court that the audiotapes would reveal that Smithers was "a cold-blooded would be killer" and would show how he "secure[d] what he believe[d] [wa]s the cooperation from a long term convicted felon to carry out his plans[,]" drew a map, laid out his plan, and went into "some detail about how they [could] attempt to pull this off in a way so that they [could] get away with their crime and he [could] escape responsibility for his viciousness." (App. 115-116). The State also indicated that the tapes would reveal that not only did Smithers "plot[] to kill a little girl and her mother" but that Smithers told Wombles that "if the Dad happens to be there too, why don't you throw him in as well." (App. 116). The State argued that Smithers should receive the maximum sentence because he "was entrusted with the care of this child [S.M.,]" who was a "little five (5) year old girl while her mother was out of town[,]" and that "instead of safeguarding and watching out for her like he was supposed to do, he gratified his own sexual desires with this child" and that he "violated that position of trust by committing . .. terrible and various sexual acts with her[.]" (App. 114). Also during the hearing, Smithers testified that he was "really truly sorry that any of this happened." (App. 109). Smithers' counsel acknowledged that Smithers would "likely spend decades in the Department of Corrections" but requested that the trial court "consider placing him under some form of period of suspended sentence for reasons and for opportunity for the Court to supervise him and keep him in." (App. 110-111).
On February 5, 2003, the trial court held a sentencing hearing, and before imposing Smithers' sentence, the trial court stated:
Mr. Smithers the child that you molested and conspired to murder and those responsible to teach her and raise her and answer her questions will have difficulties beyond the comprehension of most of us here today. You have offered your straight forward and simply expression of remorse for those acts and that expression is well taken and has been considered in determining your sentence. The purpose today is for me to give you an explanation of the mitigating and aggravating factors that were considered and to tell you what your sentence will be. The child [S.M.] was in your care. She was very young. She trusted you and her mother trusted you and you abused that care. The specific circumstances of the molesting was not a simply touching. I won't go any fa[r]ther than that. Um, but, vengeance is not the purpose of sentencing. Fairness is the purpose of sentencing. Fairness to you in that you've had an opportunity to consult with counsel, to evaluate the facts and you offered your knowing and voluntarily plea of guilty to both the charges, well all five (5) charges, to the Court. Uh, but fairness is also due to the community in the form of protection and safety and, uh, the incarcerated portion of your sentence is quite long because of the fairness due to the community. Um, specifically, with regard to the aggravating and mitigating factors, I found your violation of the conditions of your release to be an aggravating factor in that you had a protective order with respect to the victim. Uh, on the child molesting charge, and during that period of time you conspired to have her and her mother murdered.6 Um, you have a history of criminal and delinquent activity. I didn't give that very much weight because the only conviction was a conviction for theft in 1997.7 Albeit a crime of dishonesty, um, I found also that you were in need of correctional and rehabilitation treatment that could be best provided by commitment to a facility and that imposition of a reduced sentence or suspended sentence would depreciate the seriousness of the crimes that you committed and those aggravating factors apply to both cases. I'm going to go into a little bit more detail in the sentencing orders. I did not find any mitigating factors.
(App. 122-124). The trial court then sentenced Smithers to fifty years on his class A felony conspiracy to commit murder conviction in Cause #126. In Cause #194, the trial court sentenced Smithers to twenty years with two years suspended on his class B felony child molesting conviction, eight years on each of his class C felony child molesting convictions, and three years on his class D felony conviction.8 Then, pursuant to the plea agreement, the trial court ordered that the four counts in Cause #194 be served concurrently to one another and that that sentence be served consecutively to the sentence in Cause #126, for a total sentence of seventy years. Thereafter, the trial court ordered that Smithers serve a sixty-eight year executed sentence in the Indiana Department of Correction and two years suspended.
On March 6, 2003, Smithers, pro se, sent a letter to the trial court indicating that he wanted to appeal his sentences under both Cause #126 and #194 and requested that the trial court appoint appellate counsel for that purpose. The trial court appointed a public defender, who then filed a petition for permission to file a belated appeal on April 14, 2003. The trial court denied Smithers' petition.
Thereafter, Smithers engaged in a lengthy process and the filing of various motions—including additional requests for permission to file a belated appeal, petitions for post-conviction relief, and a change of judge motion—in an attempt to appeal his sentences until he was finally granted permission to file a belated notice of appeal, which he then filed on September 27, 2005.9 Additional facts will be provided as necessary.
The sole issue is whether the trial court abused its discretion in sentencing Smithers. Sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002). An abuse of discretion occurs if "the decision is clearly against the logic and effect of the facts and circumstances." Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998). In order for a trial court to impose an enhanced or consecutive sentence, it must: (1) identify the significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those...
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