Pickens v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Leanna Weissmann Steven Carter

Lawrenceburg, Indiana Attorney General of Indiana

Grant H. Carlton

Deputy Attorney General

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

MARK PICKENS, )

Appellant (Defendant Below), )

)

v. ) No. 69S00-0012-CR-815

)

STATE OF INDIANA, )

Appellee (Plaintiff Below). )

________________________________________________

APPEAL FROM THE RIPLEY CIRCUIT COURT

The Honorable Carl Taul, Judge

Cause No. 69C01-9907-CF-16

________________________________________________

On Direct Appeal

May 10, 2002

DICKSON, Justice

The defendant, Mark Pickens, pled guilty to murder[1] and now appeals

his sixty-year sentence, alleging the trial court relied on improper

aggravators in enhancing the presumptive sentence by five years. We have

jurisdiction pursuant to former Indiana Appellate Rule 4(A)(7),[2] as the

defendant's appeal was initiated by praecipe on November 1, 2000, and

affirm the sentence.

The defendant argues that only three of the trial court's eight

enumerated aggravators listed in the sentencing statement are proper, and

if only the three proper aggravators are weighed against the three

mitigating factors it is "not clear that the trial court would . . . still

come up with a sixty year sentence in this case." Br. of Appellant Mark

Pickens at 10. In general, sentencing determinations are within the trial

court's discretion and are governed by Indiana Code § 35-38-1-7.1. See

Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999); Harris v. State, 659 N.E.2d

522, 527 (Ind. 1995). We review trial court sentencing decisions only for

abuse of discretion, including a trial court's decision to increase or

decrease the presumptive sentence because of aggravating or mitigating

circumstances and to run the sentences concurrently or consecutively. See

Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997); Morgan v. State, 675

N.E.2d 1067, 1072 (Ind. 1996); Smith v. State, 675 N.E.2d 693, 697 (Ind.

1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).

In pronouncing the sentence the trial court stated:

The Court has reviewed the Pre-Sentence Investigation and Report as

well as the supplement to that Pre-Sentence Investigation and Report.

The court has considered the evidence presented here in open Court,

the arguments of counsel, and has considered the mandatory, the

factors made mandatory by statute. The risk that the Defendant will

commit another crime that's always up in the air. I do consider

however that these circumstances are unlikely to recur. The nature

and circumstances of the crime committed certainly he has obtained

access to the victim by deceit. He violated the restraining order no

less than three times, once on the day of the homicide, once on June

4th and once on May 30th which the officer responding to the call for

violation of that restraining order found him to be intoxicated and

resulted in his arrest for Operating a Vehicle While Intoxicated. So

this was not a . . . I guess it indicates to me a disregard for the

law a disregard for the authority of the court. And in addition to

being an aggravating factor I think also indicates or is an indication

of Defendant's character. Prior criminal record there is no

conviction for any offense, but as I mentioned with respect to his

character there is the arrest for Operating While Intoxicated, there

are the violations of the restraining order, there is the admitted

marijuana use which is illegal and again indicates a disrespect for

the law. The court considers the aggravating factors as follows: the

violation of the restraining order, the obtaining of access to the

victim by deceit; the nature and circumstances of the offense; the

abuse of the victim for a period of time prior to the offense; having

left the victim after having shot her; as the Prosecuting Attorney

mentioned five separate shots with a shotgun at close range, two while

she was lying on the ground wounded the Court will consider as an

aggravating factor. As mitigating factors the Defendant has entered a

voluntary plea of guilty to the charge. That he has led a law abiding

life for a substantial period of time not having any convictions of

crime. As I mentioned, circumstances unlikely to recur. I have

reason to doubt however that he is likely to respond affirmatively to

short-term imprisonment and I also doubt the sincerity of the

expressed remorse. Mr. Pickens throughout these proceedings has given

me the impression of one who is by proclaiming his remorse attempting

to avoid the consequences of his actions rather than expressing true

remorse for what he has done. Accordingly, I will adopt the

recommendation of the probation department. Sentence the Defendant to

sixty years at the Indiana Department of Correction. Aggravating the

basic sentence of fifty-five years by five years. [I] am considering

the mitigating factors in not aggravating it to the full sixty-five.

Record at 292-94. The Sentencing Order listed the following aggravators:

1. Defendant has violated restraining order involving the

victim on at least three occasions;

2. Imposition of a reduced sentence or suspension of the

sentence would depreciate the seriousness of the crime;

3. Nature and circumstances of the crime committed

specifically firing five shots into the victim, two of which were

while the victim was lying on the ground;

4. Defendant's character exhibits a disregard for the law and

the authority of the Court by violation of restraining order,

ingestion of marijuana and his arrest for Operating a Vehicle While

Intoxicated;

5. Defendant's prior abuse of the victim;

6. Defendant obtained access to the victim by deceit;

7. Defendant does not exhibit genuine remorse for the crime

committed;

8. The statement of the victim's family.

Record at 123-24.

We agree with the defendant's first contention that the trial court

improperly considered that the imposition of a reduced sentence or

suspension of the sentence would depreciate the seriousness of the crime as

an aggravating factor. This factor may be considered only to support the

refusal to impose a sentence less than the presumptive. Hollins v. State,

679 N.E.2d 1305, 1308 (Ind. 1997). There is nothing in the record that

indicates the court was considering less than the presumptive sentence.

The consideration of this aggravator was incorrect.

The defendant next argues that the trial court improperly considered

the fact that the defendant violated a restraining order as the basis for

both its first and fourth enumerated aggravators. Indiana Code § 35-38-1-

7.1 lists the mandatory and nonmandatory factors for courts to consider in

determining a sentence. Of the mandatory factors, two that the trial court

is to consider are whether the defendant violated a protective order,

Ind.Code § 35-38-1-7.1(a)(5), and the defendant's character, Ind.Code § 35-

38-1-7.1(a)(3)(b). The court properly considered the violation of the

restraining order as a factual aggravator and also properly considered it

in determining defendant's character. We find no error here.

The defendant contends that the trial court improperly considered his

admitted marijuana use and arrest for operating a vehicle while intoxicated

(OWI), as they are not "sufficient to show that [he] has a criminal record

justifying enhancement of [his] sentence." Br. of Appellant Mark Pickens.

One or more arrests, standing alone, do not establish the "history of

criminal or delinquent activity" aggravator to enhance a sentence. See

Ind.Code § 35-38-1-7.1(b)(2); Sherwood v. State, 702 N.E.2d 694, 700 (Ind.

1998); Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991). "While a record

of arrests does not establish the historical fact of prior criminal

behavior, such a record does reveal to the court that subsequent antisocial

behavior on the part of the defendant has not been deterred even after

having been subject to the police authority of the State and made aware of

its oversight activities of its citizens." Tunstill, 568 N.E.2d at 545.

Indiana Code § 35-38-1-7.1(d) "gives a sentencing court the flexibility to

consider any factor which reflects on the defendant's character, good or

bad, in addition to those expressly set out in the rest of the statute."

Id. Furthermore, under Indiana Code § 35-38-1-7.1(a)(3)(B), the court may

consider arrest records and admissions of illegal conduct as they reflect

on the defendant's character. The trial court did not act improperly in

considering the defendant's arrest for OWI and his admitted marijuana use

as relevant to the defendant's character.

The defendant asserts that the trial court's consideration of the

defendant's prior abuse of the victim is improper, as this finding is not

supported by the record. The defendant maintains that the only evidence

presented that the defendant abused the victim was the testimony of the

victim's family. When determining the proper sentence to be imposed, the

rules of evidence, other than those concerning matters of privilege, do not

apply. Ind.Evidence Rule 101(c)(2); see also Jackson v. State, 697 N.E.2d

53, 55 (Ind.1998). At sentencing the evidence is not confined to the

narrow issue of guilt, but is to determine the type and extent of

punishment. Thomas v. State, 562 N.E.2d 43, 47 (Ind. Ct. App.1990). While

a sentence may not be based upon materially false information or

assumptions, the defendant here testified at his sentencing hearing and had

the opportunity and did question the family members on their accusations of

abuse. The trial court's conclusion that the defendant abused the victim

prior to the crime is not clearly erroneous. We find no error.

The defendant next takes issue with the trial court's assessment that

the defendant did not exhibit genuine remorse for the crime committed. The

defendant claims that the record does not support the trial court's

assessment and references his testimony that he was sorry for the tragedy,

that he had cried over the tragedy, and that he had pled guilty in part to

spare the victim's family from the ordeal of a trial.

In determining that the defendant's remorse was insincere, the court

acknowledged that the defendant had professed remorse. However, the court

concluded that the proclaimed remorse was an attempt to avoid consequences

rather than a true expression. We find the court's determination to be

similar to a determination of credibility. See Herrera v. State, 679

N.E.2d 1322, 1327 (Ind. 1997). Without evidence of some impermissible

consideration by the court, we accept its determination of credibility. We

find no impermissible considerations and thus no error.

The defendant's final argument is that the court failed to explain

the reasons for its determination that the statements of the victim's

family were aggravating. Because the terrible loss that accompanies the

loss of a family member accompanies almost every murder, this impact on the

family is encompassed within the range of impact which the presumptive

sentence is designed to punish. Bacher v. State, 686 N.E.2d 791, 801 (Ind.

1997). The impact on others may qualify as an aggravator but the

defendant's actions must have had an impact on other persons of a

destructive nature not normally associated with the commission of the

offense in question and must be foreseeable to the defendant. Id. The

trial court did not delineate what impact it was considering that would not

normally be associated with the loss of the victim's life. This aggravator

was improperly considered.

Excluding the challenged aggravating circumstances based on victim

impact and that a reduced sentence would depreciate the seriousness of the

crime, multiple aggravating circumstances nevertheless remain. Even when a

trial court improperly applies an aggravator, a sentence enhancement may be

upheld if other valid aggravators exist. Garrett v. State, 714 N.E.2d 618,

623 (Ind.1999). "[W]e will remand for resentencing if we cannot say with

confidence that the trial court would have imposed the same sentence if it

considered the proper aggravating and mitigating circumstances." McCann v.

State, 749 N.E.2d 1116, 1121 (Ind. 2001). Excluding the two improper

aggravating circumstances, six aggravating circumstances remain to weigh

against three mitigating circumstances. As seen by the trial court's oral

remarks at sentencing, the court relied mainly on the six proper

aggravating circumstances in enhancing the defendant's sentence. Given the

trial court's oral remarks at sentencing and the weight of the aggravating

factors remaining, our confidence in the sentence is not diminished by the

removal of the two improper aggravators. The sentence is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

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[1] Ind.Code § 35-42-1-1.

[2] For appeals initiated after January 1, 2001, the Court's

jurisdiction is defined in App.Rule 4.