Warlick v. State

• Decision Date: 27 January 2000
• Docket Number: No. 02S00-9810-CR-539.,02S00-9810-CR-539.
• Citation: 722 N.E.2d 809
• Parties: Ricky WARLICK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

722 N.E.2d 809

Ricky WARLICK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 02S00-9810-CR-539.

Supreme Court of Indiana.

January 27, 2000.

Bruce R. Snyder, P. Stephen Miller, Fort Wayne, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Kathryn Janeway, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

BOEHM, Justice.

Ricky Warlick pleaded guilty to murder and burglary as a Class A felony. The State sought a sentence of life imprisonment without parole, alleging that Warlick intentionally killed while committing a burglary. Warlick was sentenced to life imprisonment without parole on the murder count, to be served concurrently with a thirty year sentence for burglary. In this direct appeal of that sentence, Warlick contends that (1) the trial court considered non-statutory aggravators; (2) the trial court failed to consider mitigating circumstances clearly supported by the record; and (3) the trial court improperly weighed the aggravating and mitigating circumstances. We affirm the trial court.

Factual and Procedural Background

At approximately 6:00 a.m. on June 13, 1996, Annie Warlick was lying on the sofa of her sister's home where she had been staying for several weeks. She was holding her infant daughter, Tekia, and her brother was sitting at the other end of the sofa. Warlick, Annie's estranged husband, entered the home, put a gun to Annie's head, and fired two shots. Warlick then turned and walked out of the house. He drove away, threw the gun out the car window, and went to his aunt's home where he told her of the killing and asked her to take him to the police department. Warlick's aunt called his father, who upon his arrival told her to call 911, which she did.

Warlick was charged with murder, burglary as a Class A felony, and criminal recklessness as a Class D felony. The State initially sought the death penalty, alleging that Warlick had intentionally killed Annie while committing or attempting to commit burglary. See Ind.Code § 35-50-2-9(b)(1)(B). That count was later dismissed at the request of the victim's family and replaced with a request for life without parole, based on the same aggravator.

On February 5, 1998, Warlick pleaded guilty to all counts without a plea agreement. After the penalty phase hearing, the trial court found that Warlick intentionally killed Annie during the commission of a burglary. It found Warlick's remorse as the sole mitigating circumstance, found that the aggravating circumstance "substantially outweigh[ed]" the mitigating circumstance, and imposed a sentence of life without parole on the murder count, to be served concurrently with a term of thirty years for the burglary count. The State dismissed the criminal recklessness count.

I. Non-Statutory Aggravators

Warlick contends that the trial court erred in considering non-statutory aggravating circumstances in imposing a sentence of life without parole. In Bivins v. State, 642 N.E.2d 928, 955 (Ind.1994), this Court held that trial courts, in deciding whether to impose a sentence of death, are limited by the aggravating circumstances specified in the death penalty statute. See Ind.Code § 35-50-2-9(b). The same rule applies to life imprisonment without parole. See Farber v. State, 703 N.E.2d 151, 153 (Ind.1998)

; Ajabu v. State, 693 N.E.2d 921, 936 (Ind.1998) ("The statute provides that life without parole is imposed under the same standards and is subject to the same requirements.").

Warlick points to three alleged aggravators that he contends the trial court impermissibly considered. First, he quotes the trial court's statement at the sentencing hearing that he "forced his way into the house contrary to a protective or restraining order...." He contends that the use of the word "force" was impermissible because the evidence at the guilty plea hearing was that he "just walked up the step, opened the door and walked in the house." The word "force" does not appear in the trial court's sentencing order, which states that Warlick "without authority or invitation, entered the residence of Annie Warlick contrary to a restraining or protective order." The trial court's use of the word "force" at the sentencing hearing, if error at all, is harmless because it was not included in the sentencing order. See Prowell v. State, 687 N.E.2d 563, 565 (Ind.1997)

.

Second, Warlick asserts "since the violation of a protective order was not alleged, considering it as an aggravator was also impermissible." As this Court observed in Prowell, a death penalty case,

the circumstances of the crime often provides an appropriate context for consideration of the alleged aggravating and mitigating circumstances. Inclusion of the nature and circumstances of the offense in a trial court's sentencing order does not necessarily compel a conclusion that such matters were improperly considered and weighed as aggravating circumstances.

Id. at 567. Similarly, in Holmes v. State, 671 N.E.2d 841, 850 (Ind.1996), this Court found that

the trial judge's references in the sentencing order to premeditation, deliberation, moving intently from one killing to the next, and the use of extreme force and torture, makes i[t] perfectly clear that she was considering the manner in which the aggravators occurred for the sole purpose of giving an appropriate weight to those proved aggravators.

Cf. Stevens v. State, 691 N.E.2d 412, 437 (Ind.1997)

("Even if the facts articulated in the judge's surplus statement indicate some influence on his decision, they appear mostly to be restatements of facts which would fall within the charged aggravating factors."). In light of these authorities, we find no error in the trial court's mention of the violation of a restraining or protective order.¹ The court was merely describing the nature of the offense and restating facts necessary to determine the appropriate weight to be given to it, not finding a separate improper aggravator.

Finally, Warlick argues that it was improper for the trial court to consider that the killing was "with total disregard for the minor child held by the victim Annie P. Warlick...." He contends that this was not part of the burglary alleged as a statutory aggravator and that the facts show that he did not know until after the shooting that his daughter was in Annie's arms. As explained above, trial courts are given some latitude in describing the nature of the statutory aggravating circumstance in order to determine the appropriate weight to give it. The trial court's observation was supported by the evidence. Although Warlick stated at the guilty plea hearing that he "didn't even notice my daughter laying there till after I shot," when asked if he had taken "any concern if anybody was with Annie at all," he responded that he had not. In sum, there was an adequate factual basis for this statement in the trial court's sentencing order and its mention did not violate Bivins.

II. Failure to Consider Mitigating Circumstances

The trial court found Warlick's remorse as the sole mitigating circumstance. Warlick contends that the trial court should have also found as mitigating circumstances his lack of criminal history and "acceptance of responsibility" by surrendering to police.

The allegation that the trial court failed to find mitigating circumstances requires Warlick to establish that the mitigating evidence is both significant and clearly supported by the record. See Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)

. We review the trial court's finding of mitigating circumstances for an abuse of discretion. See Penick v. State, 659 N.E.2d 484, 488 (Ind.1995).

As to the first of these, Warlick points to the following comment by the State: "The only possible mitigator that I could see here is that he has a lack of significant criminal history. Not a lack of any criminal history but a lack of a significant criminal history...."² One of Warlick's attorneys later argued as mitigation that Warlick's

crimes have all been misdemeanors prior to this time and they've all involved his former wife, Annie Warlick. The only place that's not 100% true is that he had a reckless driving and he had a resisting arrest involving an assault back in Tennessee when he was roughly twenty-nine years old.

Nevertheless, the trial court rejected this proffered mitigating circumstance, observing that Warlick's criminal history "certainly is significant and I suppose as a matter of hindsight it's what led up to where we are today, a series of domestic batteries, invasion of privacies, all involving domestic type of matters." This was not an abuse of discretion.³

Nor did the trial court abuse its discretion by failing to find Warlick's surrender to the police to be mitigating. Warlick shot Annie in plain view of her brother who was sitting a few feet away. Had he not surrendered, he would no doubt have been apprehended in short order. Compare Battles v. State, 688 N.E.2d 1230, 1237 (Ind.1997)

("[D]efendant's eventual capture and arrest were nigh unavoidable, and we cannot say that the trial court abused its discretion in failing to find that his voluntary statement to police was a mitigating circumstance entitled to any significant weight.") with Brewer v. State, 646 N.E.2d 1382, 1386 (Ind.1995) ("[A]ppellant had clearly succeeded in escaping responsibility for the heinous crime that he had committed nearly fifteen years before. His surrender and subsequent confession provided a major benefit to the community; that benefit to society should be reflected in the sentence imposed.").

III. Weighing the Aggravating and Mitigating Circumstances

As a final point, Warlick argues that the trial court failed to properly weigh the aggravating and mitigating circumstances. He concedes that the trial court has discretion in determining what weight to...