Villalon v. State

• Decision Date: 21 November 2011
• Docket Number: No. 45A03–1010–CR–544.,45A03–1010–CR–544.
• Citation: 956 N.E.2d 697
• Parties: Martin A. VILLALON, Jr., Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

956 N.E.2d 697

Martin A. VILLALON, Jr., Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1010–CR–544.

Court of Appeals of Indiana.

Aug. 30, 2011.Rehearing Denied Nov. 21, 2011.

James Foster, Office of James Foster, P.C., Hammond, IN, Marc W. Martin, Marc Martin, Ltd., Chicago, IL, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Martin A. Villalon, Jr. (“Villalon”) appeals his conviction and sentence for Murder, a felony.¹ We affirm.

Issues

Villalon presents six issues for review:

I. Whether Indiana's juvenile waiver statute is unconstitutional because it deprives juveniles of a Sixth Amendment right to have a jury determine facts supporting enhanced punishment for an offense;

II. Whether the jurisdictional waiver to adult court was supported by sufficient findings having evidentiary support;

III. Whether Villalon was denied effective assistance of counsel for failure to present an alibi defense;

IV. Whether the trial court abused its discretion by excluding as an exhibit a printout of a social networking page belonging to a prosecution witness;

V. Whether Villalon was deprived of his Sixth Amendment right to a jury trial because alternate jurors were instructed that they were permitted to discuss evidence during recesses, consistent with Indiana Jury Rule 20(a)(8); and

VI. Whether the sixty-year sentence is a product of an abuse of the trial court's discretion or is inappropriate.

Facts and Procedural History

The evidence most favorable to the verdict reveals that, on August 22, 2008, fifteen-year-old Villalon chased down fifteen-year-old John Shoulders (“Shoulders”) and fatally shot him because Villalon mistakenly believed that Shoulders was a Vice Lord gang member.

On April 15, 2009, the State filed a petition alleging that Villalon was a juvenile delinquent because he had knowingly or intentionally killed Shoulders. Contemporaneously, the State requested waiver of jurisdiction from the juvenile court to a court having jurisdiction if the act had been committed by an adult. Following a hearing, the juvenile court waived jurisdiction to criminal court. Villalon was charged with murder. He moved to dismiss the murder charge, alleging that he was entitled under the United States Constitution to have a jury determine the facts underlying the waiver of jurisdiction decision. The motion to dismiss was denied. His motion to reconsider was likewise denied.

Villalon was brought to trial before a jury and was convicted as charged. On July 26, 2010, the trial court sentenced Villalon to sixty years imprisonment. Villalon filed a motion to correct error, which was denied. He now appeals.

Discussion and Decision

I. Constitutionality of Waiver of Jurisdiction Statute

Villalon sought dismissal of the murder charge against him, contending that Indiana's juvenile waiver statute is constitutionally infirm. The trial court disagreed. Villalon now argues that, because his trial in adult court, as opposed to his retention in the juvenile justice system, greatly increased his punishment, he was entitled to have a jury determination of facts supporting the enhancement.

Whether a statute is constitutional on its face presents a question of law, for which de novo review is appropriate. State v. Moss–Dwyer, 686 N.E.2d 109, 110 (Ind.1997). We begin with the presumption of constitutional validity, and thus the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional. Id. at 112.

Indiana Code Section 31–30–3–4 provides:

Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:

(1) the child is charged with an act that would be murder if committed by an adult;

(2) there is probable cause to believe that the child has committed the act; and

(3) the child was at least ten (10) years of age when the act charged was allegedly committed;

unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.

Villalon claims that the forgoing statute deprived him of his rights under the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment.² He relies upon Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which set forth the general rule that, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.”

In Apprendi, the defendant had fired bullets into the home of an African–American family and had pled guilty to a weapons possession charge. Id. at 469–70, 120 S.Ct. 2348. The trial court, finding by a preponderance of the evidence that the shooting had been racially motivated, increased Apprendi's sentence pursuant to New Jersey's hate crimes statute. Apprendi appealed, contending that “the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt.” Id. at 471, 120 S.Ct. 2348. The United States Supreme Court agreed that the Sixth and Fourteenth Amendments required that a jury must make the determination of racial motivation. Id. at 490, 120 S.Ct. 2348. Such fact was the “functional equivalent” of an element of a greater offense. Id. at 494, 120 S.Ct. 2348.

More recently, in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 714, 172 L.Ed.2d 517 (2009), the United States Supreme Court declined to extend the Apprendi rule in the context of consecutive versus concurrent sentencing. The Court decided that the Sixth Amendment does not preclude states from assigning to judges, rather than to juries, the task of finding facts necessary to impose consecutive, rather than concurrent, sentences for multiple offenses. Id. In reaching its decision, the Court looked to “the scope of the constitutional jury right informed by the historical role of the jury at common law” and disagreed with the defendant's suggestion that “the federal constitutional right attaches to every contemporary state-law ‘entitlement’ to predicate findings.” Id. at 718, 129 S.Ct. 711. In addition to the historical role of the jury, the Court also was mindful of state sovereignty, including “the authority of States over the administration of their criminal justice systems.” Id.

The Court observed, “The historical record demonstrates that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge.” Id. at 717, 129 S.Ct. 711. Because the decision to impose consecutive or concurrent sentences was not within the jury's historical function, and because of the principles of federalism, legislative reforms regarding multiple sentences did not “implicate the core concerns that prompted [the] decision in Apprendi.” Id. at 718, 129 S.Ct. 711. “ Apprendi's core concern [is] a legislative attempt to ‘remove from the [province of the] jury’ the determination of facts that warrant punishment for a specific statutory offense.” Id. at 718, 129 S.Ct. 711 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). Ultimately, the Court reiterated: “The jury trial right is best honored through a ‘principled rationale’ that applies the rule of the Apprendi cases ‘within the central sphere of their concern.’ ” Id. at 719, 129 S.Ct. 711 (quoting Cunningham v. California, 549 U.S. 270, 295, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007)). The Court thus declined to extend Apprendi to an area of criminal sentencing—concurrent or consecutive sentencing—in which the jury had traditionally played no role.

The Sixth Amendment right to a jury trial does not apply to juvenile delinquency proceedings. See McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). The New Mexico Supreme Court recently observed in State v. Rudy B.:

[T]he findings in the Apprendi line of cases uniformly occurred in the adult criminal context[.] ... The Supreme Court has traditionally given states wider latitude in adopting particular trial and sentencing procedures for juveniles—including whether to have a jury trial at all.... Given that Ice expressly instructs us to consider principles of federalism and state sovereignty in determining whether to apply Apprendi, we find this distinction particularly significant.

149 N.M. 22, 243 P.3d 726, 735 (2010) (emphasis in original), cert. denied, ––– U.S. ––––, 131 S.Ct. 2098, 179 L.Ed.2d 898 (2011).

The waiver statute here at issue incorporates a presumption that a child of age ten or older alleged to have committed an act that would be murder if committed by an adult will be tried in adult court. Ind.Code § 31–30–3–4. The child is provided with the opportunity to present evidence to the juvenile court that it would be in the best interests of the child and of the community to have the child remain within the juvenile justice system. Making findings of best interests has been entrusted, since the enactment of the statutory scheme, to the juvenile court judge, and not a jury. Villalon does not contend that the statute removed from the jury a task with which it had historically been entrusted.

As a practical matter, a child who is alleged to have committed a delinquent act and is not retained in the juvenile justice system but is waived into adult court will (if found guilty) face harsher consequences for his or her conduct. Nonetheless, Ice makes clear that not all judicial fact-finding ultimately resulting in an increased term of incarceration invades the province of the jury. As previously observed, Villalon provides no argument as to how our juvenile waiver statute might be understood to encroach upon the jury's traditional domain....