Taylor v. State

• Decision Date: 21 August 1987
• Docket Number: No. 584S163,584S163
• Parties: Roy H. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1036

511 N.E.2d 1036

Roy H. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 584S163.

Supreme Court of Indiana.

Aug. 21, 1987.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

The principal issue in this case is whether the Indiana Constitution, Art. 1, Sec. 16 proscribes a thirty-two-year sentence for the theft of fifty dollars worth of merchandise when the conviction is the defendant's fifth nonviolent felony.

We consolidate the other issues Taylor raises on direct appeal to these four:

2) Whether the Indiana Constitution requires that the jury be informed of the penalty for a habitual offender finding and mandates the jury hear defendant's testimony that he never did anything violent;

3) Whether the trial court erred when it declined to order the prosecutor to provide information Taylor desired to use in challenging the propriety of the habitual offender charge on Eight Amendment grounds and refused to grant a continuance to conduct such discovery;

4) Whether the trial court erred when it sentenced appellant as a felon and commenced the habitual offender phase prior to that determination, and

5) Whether the trial court properly admitted documents of appellant's prior convictions, a photograph of the stolen items, and a diagram of the store.

Appellant Roy H. Taylor appeals his conviction for theft, a class D felony, Ind.Code Sec. 35-43-4-2(a) (Burns 1985 Repl.), and the determination that he is a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). The trial court imposed a two-year term for the theft and enhanced that sentence by thirty years for the recidivist finding.

At trial the evidence showed that on January 7, 1983, Taylor entered a K-Mart store near the Tippecanoe Mall in Lafayette. He picked up six packages of A.C. spark plugs and put them inside his shirt and jacket. He then left the store without paying. Security manager Patrick Patton stopped Taylor and his brother in the parking lot and escorted the men back to the store's security office. Patton found the six packages of spark plugs with K-Mart price tags inside Taylor's shirt.

Taylor's defense consisted of testimony that he had been drinking alcohol and smoking marijuana on the day of the theft. He had difficulty remembering what happened inside the store, and he presented evidence tending to establish that he acquiesced in his brother's shoplifting plan. Patton and his assistant testified that Taylor did not appear to be under the influence of alcohol or drugs.

After the jury found Taylor guilty of theft, it determined he was a habitual criminal. The jury specifically found he had been convicted of larceny in 1969, 1973 and 1980, and of receiving stolen property in 1978.

I. Proportional Punishment

Taylor argues that a sentence of thirty-two years constitutes cruel and unusual punishment disproportionate for a theft conviction. He maintains the sentence violates the Eighth Amendment of the United States Constitution and Article 1, Section 16 of the Indiana Constitution.

The Eighth Amendment declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." In a well known case on this subject, the United States Supreme Court held a life sentence without possibility of parole for a seventh nonviolent felony amounted to cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the Court interpreted the Eighth Amendment to include the principle that the punishment be proportionate to the crime. The proportionality analysis focused on three objective criteria: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentence imposed for commission of the same crime in other jurisdictions." Id. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650.

Taylor maintains a sentence of years is disproportionate to the theft of fifty dollars worth of spark plugs under the Solem criteria. We find it unnecessary to undertake the extensive proportionality analysis under Solem because a sentence for a term of years is distinct from a life sentence without possibility of parole. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (life imprisonment with possibility of parole for three nonviolent felonies is not cruel and unusual punishment). "[A] reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Solem, 463 U.S. at 290 n. 16, 103 S.Ct. at 3009-3010 n. 16, 77 L.Ed.2d at 649 n. 16. Solem requires an extensive proportionality analysis only in those cases involving life sentences without parole. United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir.1985),cert. denied, --- U.S. ----, 106 S.Ct. 2916, 91 L.Ed.2d 545. Taylor's sentence does not violate the Eighth Amendment.

Although the United States Constitution does not require an intensive proportionality review in this case, the Indiana Constitution does require such an analysis. Our Constitution is explicit on this point: "All penalties shall be proportioned to the nature of the offense." Ind. Const. Art. 1, Sec. 16. Taylor has a right to have the proportionality of his penalty reviewed under the Indiana Constitution.

Our state Constitution mandates that the penalty be proportioned to "nature" of the offense. We must focus initially on the principal felony--the theft conviction that triggers the habitual offender statute--because Taylor already has paid the penalty for each of his prior offenses. Taylor's prior convictions are, of course, relevant to the sentencing decision. Therefore, the proportionality analysis of a habitual offender penalty has two components. First, a reviewing court should judge the "nature" and gravity of the present felony. Second, the court should consider the "nature" of the prior offenses.

With regard to the gravity of the primary offense, Taylor argues his theft is a minor offense compared to murder, rape, robbery, burglary, kidnapping, child molesting or arson. The potential for violence with theft is minimal. Our statutes, however, categorize felonies so as to provide a higher presumptive term for violent crimes; hence, a higher total penalty results when the standard thirty years is added to the sentence of a habitual offender who commits a violent crime. Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). If a recidivist commits a Class A felony, the presumptive term would be fifty years; if a repeat offender commits a Class D felony, the term would be thirty-two years.

This Court has considered the constitutionality of subjecting a thief to the habitual offender enhancement. We have ruled the habitual offender enhancement of a theft conviction was not disproportionate to the offense. Norris v. State (1979), 271 Ind. 586, 576, 394 N.E.2d 144, 150. We have specifically held a thirty-two-year sentence was not an unconstitutionally disproportionate penalty for theft of gasoline by a repeat offender. Hensley v. State (1986), Ind., 497 N.E.2d 1053. Taylor's sentence of thirty-two years for the theft of fifty dollars worth of spark plugs does not constitute a disproportionate penalty, especially in light of his prior criminal record.

The second factor is the nature of the earlier crimes. Taylor's criminal history has been nonviolent, but prolific. In 1969 Taylor pled guilty to larceny. Taylor and a friend went into a store and removed a television set, a radio, a clock, a guitar, a walkie-talkie and two screwdrivers. In 1973 he again pled guilty to larceny after he and his brother broke into a tavern. In 1978 Taylor pled guilty to receiving stolen property. He accepted tools and equipment that had been stolen from Sears and J.C. Penneys. In 1980 Taylor pled guilty to larceny for a third time. He shoplifted seventy dollars worth of eight-track tapes.

Taylor acknowledges that a state is justified in punishing a recidivist more severely than a first offender, but he maintains the sentence should reflect the nature of the prior convictions and not be based solely on the person's status as a repeat offender. Taylor's previous felonies reflect a person who commits nonviolent crimes when not incarcerated. The history of Taylor's two conviction prior to the present offense are especially telling. In September 1978 Taylor received stolen property from two stores. The trial court sentenced him to a two-year term. He left prison in May 1979 on parole. Ten months later Taylor committed larceny. The court sentenced him in July 1980 to a term of four to six years. Taylor received parole in 1982. In January 1983 he stole the spark plugs. The earlier crimes reflect a pattern of repetition unbroken by short-term incarceration. Taylor's thirty-two-year sentence is not disproportionate because of his inability to control his criminal habit.

The sentence does not violate the Indiana Constitution.

II. Jury's Role in Habitual Offender Proceeding

Taylor presents two arguments based on Article 1, Section 19 of the Indiana Constitution which reads: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts." First, he argues the trial court erred in ordering defense counsel not to mention the possible penalty for the habitual offender finding before the jury. The jury's right under the Indiana Constitution to determine the law has some limitations; the jury, for instance, has no responsibility to assess penalties under the current criminal code. Jones v. State (1983), Ind., 449 N.E.2d 1060. The habitual offender finding is a means of sentencing and is not a determination of law. The trial court properly refused to...