McCann v. State

ATTORNEY FOR APPELLANT

Amy L. Dell

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Steve Carter

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

MARIO McCANN, )

)

Appellant (Defendant Below), ) Indiana Supreme Court

) Cause No. 49S05-0104-CR-209

v. )

) Indiana Court of Appeals

STATE OF INDIANA, ) Cause No. 49A05-0002-CR-43

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Cale J. Bradford, Judge

Cause No. 49G03-9708-CF-127103

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

June 20, 2001

BOEHM, Justice.

We hold that the pregnancy of a victim, like any other circumstance

that may extend the harm inflicted by a crime, may be an aggravating

circumstance in sentencing whether or not the perpetrator is aware that the

victim is pregnant.

Factual and Procedural Background

On August 2, 1997, Mario McCann visited A.L. and Anthony Dozier at

their home. After McCann left, A.L. went upstairs, fell asleep, and awoke

to find McCann in her bedroom. McCann told A.L. he had a gun and would use

it if she did not remain silent. He attempted to pull off her bedcovers,

touched her breasts, and then told her, “shut up, it wouldn’t take very

long, and then he’d leave [A.L.] alone.” At that point, Dozier entered the

bedroom. A fight ensued and McCann shot Dozier in the chest and fled

through the bedroom window. Both A.L. and Dozier identified McCann from a

thirty-two person photo array. McCann was arrested and charged with

attempted murder, burglary, and attempted rape.

McCann was found guilty on all charges and sentenced to fifty years

for attempted murder and a consecutive sentence of fifty years for

burglary. A concurrent sentence of fifty years was imposed for attempted

rape. On direct appeal, he contended that: (1) the photo array and in-

court identification were unduly suggestive; (2) the State committed

prosecutorial misconduct; (3) the trial court gave an erroneous instruction

on attempted rape; and (4) the trial court erred in sentencing him to

maximum, consecutive sentences for his crimes. The Court of Appeals

affirmed his convictions, but remanded to the trial court for resentencing.

McCann v. State, 742 N.E.2d 998 (Ind. Ct. App. 2001). We granted transfer

to address the sentencing issue.

McCann challenges his sentence as “excessive and manifestly

unreasonable.” He raises a number of statutory issues and also contends

that the sentence was manifestly unreasonable under Indiana Appellate Rule

7(B). As this Court has previously noted, “These are two separate

inquiries reviewed under different standards.” Noojin v. State, 730 N.E.2d

672, 678 (Ind. 2000); accord Hackett v. State, 716 N.E.2d 1273, 1276 n.1

(Ind. 1999).

I. Sentencing Error

As procedural error, McCann contends that: (1) the trial court

considered improper aggravating circumstances; (2) the trial court failed

to consider mitigating circumstances clearly supported by the record; and

(3) the trial court did not balance the aggravating and mitigating

circumstances. The trial court found four aggravating circumstances: (1)

McCann’s prior criminal history, (2) prior attempts to rehabilitate were

unsuccessful, (3) the injuries to Dozier resulted in permanent impairment,

and (4) the nature and circumstances of the crime including that A.L. was

pregnant at the time of the attack and that the crimes involved multiple

victims. The trial court found no mitigating circumstances and then

imposed maximum sentences on all three counts, two of which it ordered to

be served consecutively.

On direct appeal, the Court of Appeals determined that the

“rehabilitation” and “nature and circumstances” aggravating factors were

improperly considered, and that McCann’s claimed mitigating

circumstances—his abusive childhood and the hardship that would result to

his child from his incarceration—were not required to be considered as

mitigating circumstances. The case was remanded to the trial court to

balance the two remaining aggravating circumstances and resentence McCann.

McCann, 742 N.E.2d at 1007. Judge Vaidik dissented, concluding that the

“nature and circumstances” aggravating factor, specifically the victim’s

pregnancy, was properly considered by the trial court. Id. at 1009. She

also disagreed with the majority’s decision to remand the case. She took

the view that because a single aggravating circumstance is enough to

support enhanced and consecutive sentences, and there were three valid

aggravating circumstances in this case, the sentence should be affirmed.

In general, sentencing determinations are within the trial court’s

discretion and are governed by Indiana Code section 35-38-1-7.1. Harris v.

State, 659 N.E.2d 522, 527 (Ind. 1995). If a trial court relies on

aggravating or mitigating circumstances to enhance or reduce the

presumptive sentence, it must: (1) identify all significant mitigating and

aggravating circumstances, (2) state the specific reason why each

circumstance is determined to be mitigating or aggravating, and (3)

articulate the court’s evaluation and balancing of the identified

circumstances. Id. at 527-28.

First, McCann challenges the trial court’s finding of aggravating

circumstances. We agree with the Court of Appeals that both McCann’s

criminal history and Dozier’s permanent impairment[1] were proper

aggravators. McCann’s criminal history is a statutory aggravating

circumstance and was properly considered. Ind. Code § 35-38-1-7.1(b)(2)

(1998). The serious nature of a victim’s injuries is also a proper

aggravator. Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990); Lang v.

State, 461 N.E.2d 1110, 1113 (Ind. 1984).

The trial court also found “that prior attempts to rehabilitate the

defendant have been unsuccessful.” It is not entirely clear whether this

is simply a restatement of the fact that McCann had a criminal record, or

was a reference to the statutory aggravating circumstance that the

defendant is “in need of correctional or rehabilitative treatment that can

best be provided by commitment of the person to a penal facility.” I.C. §

35-38-1-7.1(b)(3). If the former, it is cumulative and, if the latter, we

agree with the Court of Appeals that, because the trial court failed to

explain why incarceration beyond the presumptive sentence was necessary, it

improperly considered prior attempts at rehabilitation as an aggravating

circumstance.

We disagree with the Court of Appeals that the trial court’s

consideration of the nature and circumstances of the crime was improper.

The Court of Appeals took the view that this was an improper aggravating

circumstance for two reasons. First, it relied on elements of the offense

to enhance the sentence. Second, the Court of Appeals held that A.L.’s

pregnancy, because it was “a fact apparently unknown to McCann,” was not a

proper aggravating circumstance.

Generally, the “nature and circumstances” of a crime is a proper

aggravating circumstance. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999).

Even if the trial court relied on an improper factor under this aggravating

circumstance, the sentence may be upheld so long as “[t]he remaining

components of that aggravator were proper.” Angleton v. State, 714 N.E.2d

156, 160 (Ind. 1999).

Under “nature and circumstances,” the trial court stated, “the facts

of this case are particularly aggravating. The case involves a home

invasion of a residence for the purpose of committing the crime of rape.

That the defendant attempted the rape of [A.L.] in this matter while she

was pregnant. And that these offenses or this series of acts involves

multiple victims.” The Court of Appeals was correct that the trial court

may not use “a factor constituting a material element of an offense as an

aggravating circumstance.” Spears v. State, 735 N.E.2d 1161, 1167 (Ind.

2000). However, in this case, in addition to elements of the burglary

offense, the trial court relied on the fact that there were multiple

victims and on A.L.’s pregnancy. Injury to multiple victims has been cited

several times by this Court as supporting enhanced and consecutive

sentences. Walton v. State, 650 N.E.2d 1134, 1137 (Ind. 1995) (listing

multiple killings as a “non-statutory aggravating circumstance”); cf. Tobar

v. State, 740 N.E.2d 109, 113 (Ind. 2000); Noojin v. State, 730 N.E.2d 672,

679 (Ind. 2000).

The Court of Appeals also found erroneous the trial court’s finding

that the victim’s pregnancy was an aggravating circumstance. We agree with

Judge Vaidik that pregnancy is similar to the infirmity or age of the

victim in that the defendant’s knowledge of these circumstances is not

necessary for them to qualify as aggravating. See Stevens v. State, 691

N.E.2d 412, 431-33 (Ind. 1997). To be sure, knowledge of the victim’s

vulnerability adds to the culpability of the perpetrator, but aggravating

circumstances turn on the consequences to the victim as well as the

culpability of the defendant. Id. This understanding of aggravating

circumstances comports with the Black’s Law Dictionary definition of

aggravation: “[a]ny circumstance attending the commission of a crime . . .

which increases its guilt or enormity or adds to its injurious consequences

. . . .” Black’s Law Dictionary 60 (5th ed. 1979).

McCann also challenges the trial court’s failure to find his abusive

childhood and the hardship that will result to his child from incarceration

as mitigating circumstances. The finding of mitigating circumstances is

within the discretion of the trial court. Legue v. State, 688 N.E.2d 408,

411 (Ind. 1997). An allegation that the trial court failed to identify or

find a mitigating circumstance requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the

record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999). The trial court

is not obligated to accept the defendant’s contentions as to what

constitutes a mitigating circumstance. Legue, 688 N.E.2d at 411. McCann’s

claims that “nobody really liked [him]” as a child and that he “got beat up

a lot” are not significant examples of an abusive childhood. McCann does

not explain how his incarceration for maximum, consecutive sentences will

result in more hardship to his daughter than his incarceration for the

presumptive or minimum sentence. Battles v. State, 688 N.E.2d 1230, 1237

(Ind. 1997). We agree with the Court of Appeals that the trial court did

not abuse its discretion in failing to find these factors as mitigating.

Finally, McCann contends that the trial court improperly weighed the

aggravating and mitigating circumstances. The Court of Appeals remanded

this case to the trial court because “it is unclear what weight the trial

court assigned to each designated aggravator, . . . there are now fewer

valid aggravating circumstances to consider, [and] ‘we are not persuaded

that the original sentence would have been the same had the trial court not

relied on . . . impermissible factors.’” McCann, 742 N.E.2d at 1007

(quoting Bluck v. State, 716 N.E.2d 507, 515 (Ind. Ct. App. 1999)). We

disagree. This Court has many times noted that “[a] single aggravating

circumstance is enough to justify an enhancement or the imposition of

consecutive sentences.” Williams v. State, 690 N.E.2d 162, 172 (Ind.

1997). However, we 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. See Wooley

v. State, 716 N.E.2d 919, 933 (Ind. 1999); Angleton v. State, 686 N.E.2d

803, 817 (Ind. 1997). In this case, although one of the aggravating

circumstances was improper, there were no mitigating circumstances and

three other valid aggravating circumstances, including McCann’s criminal

history. Given these factors, we can say with confidence that the trial

court would have imposed the same sentence, even without the improper

aggravating circumstance. Accordingly, there is no procedural error

requiring reversal or remand for resentencing.

II. Manifestly Unreasonable

McCann also claims that his sentence is manifestly unreasonable.

Although this Court has the constitutional authority to review and revise

sentences, Ind. Const. art. VII, § 4, it will not do so unless the sentence

imposed is “manifestly unreasonable in light of the nature of the offense

and the character of the offender.” Carter v. State, 711 N.E.2d 835, 841

(Ind. 1999); Ind. Appellate Rule 7(B). This review is deferential to the

trial court: “[T]he issue is not whether in our judgment the sentence is

unreasonable, but whether it is clearly, plainly, and obviously so.”

Spears v. State, 735 N.E.2d 1161, 1168 (Ind. 2000); Brown v. State, 698

N.E.2d 779, 783-84 (Ind. 1998); Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.

1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)).

The “nature of the offense” is breaking into a home to attack a

pregnant woman in her bed and then shooting her boyfriend when he tried to

come to her aid. Under “character of the offender,” McCann had a lengthy

criminal history including over fifteen arrests, one of which was for

breaking into a woman’s house and sexually assaulting her. In view of

these factors, the trial court’s imposition of the enhanced, consecutive

sentences was not “clearly, plainly, and obviously” unreasonable.

Conclusion

The sentence imposed by the trial court is affirmed. As to all other

issues, the Court of Appeals is summarily affirmed. Ind. Appellate Rule

58(A)(2).

SHEPARD, C.J, and DICKSON and RUCKER, JJ., concur.

SULLIVAN, J., concurs as to Part I and dissents as to Part II.

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[1] Dozier was shot in the chest. The bullet pierced his lung. The injury

caused him to miss work for an extended period of time and still interferes

with his breathing.