Bacher v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

John M. Eisele Jeffrey Modisett

Anderson, Indiana Attorney General

James D. Dimitri

Deputy Attorney General

Indianapolis, Indiana

________________________________________________

In The

INDIANA SUPREME COURT

JOHN R. BACHER, )

Defendant-Appellant, )

)

v. ) 48S00-9804-CR-237

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE MADISON SUPERIOR COURT

The Honorable Thomas Newman, Judge

Cause No. 48D03-9502-CF-070

________________________________________________

On Direct Appeal

________________________________________________

January 6, 2000

DICKSON, Justice

In this direct appeal, the defendant-appellant, John R. Bacher,

challenges his sixty-year sentence for the murder[1] of his wife, Janet

Odle (Bacher).

After the jury found the defendant guilty of murder, the judge imposed

a sentence of sixty years. On direct appeal, this Court affirmed the trial

court's conviction but remanded the case to the trial court for a new

sentencing hearing because the trial court's sentencing statement contained

questionable aggravating circumstances and failed to discuss a proffered

mitigating circumstance. Bacher v. State, 686 N.E.2d 791, 801-02 (Ind.

1997). The trial court conducted a resentencing hearing, finding

"sufficient aggravating circumstances to enhance the sentence" and no

mitigating circumstances, Record at 79, and reimposed a sentence of sixty

years.[2] In this direct appeal, we understand the defendant to present

two claims regarding his sentence: (1) that it is manifestly unreasonable;

and (2) that the trial court abused its discretion.

The defendant first contends that the maximum sentence of sixty years

is manifestly unreasonable. Upon appellate review, a sentence may be

revised if found to be manifestly unreasonable "in light of the nature of

the offense and the character of the offender." Ind. Appellate Rule 17(B).

Because this identical claim, involving the same offender, offense, and

sentence, was presented and rejected in the defendant's first appeal,

Bacher, 686 N.E.2d at 801, we decline to reconsider it here.

Second, the defendant claims that the trial court abused its

discretion by failing to follow this Court's directions when it once again

imposed the maximum sentence of sixty years.[3] The "improper" aggravating

circumstances that the defendant identifies relate to the impact of the

murder upon the victim's family: despair and grief suffered by the

victim's family, financial obligations placed on the victim's family, the

defendant's abuse, deceit, and breach of the trust between the victim and

her mother, the defendant's actions and misrepresentations about his

financial affairs and past employment endeavors so that defendant could

cultivate a relationship with the victim, the defendant's breach of the

trust in his marital relationship, and the defendant's lack of remorse.

Determining the appropriate sentence is within the trial court's

discretion, and the trial court will be reversed only upon a showing of

manifest abuse of discretion. Archer v. State, 689 N.E.2d 678, 683 (Ind.

1997); Carter v. State, 686 N.E.2d 1254, 1263 (Ind. 1997). The trial court

has within its discretion the ability to determine whether the presumptive

sentence for a crime will be increased or decreased because of aggravating

or mitigating circumstances. Archer, 689 N.E.2d at 683. The weighing of

aggravating and mitigating factors is also within the trial court's

discretion. Carter, 686 N.E.2d at 1263. When a trial court enhances a

presumptive sentence, it must state its reasons for doing so, identifying

all significant aggravating and mitigating factors; stating the facts and

reasons that lead the court to find the existence of each such

circumstance; and demonstrating that the court has evaluated and balanced

the aggravating and mitigating factors in determining the sentence.

Crawley v. State, 677 N.E.2d 520, 521-22 (Ind. 1997); Morgan v. State, 675

N.E.2d 1067, 1073 (Ind. 1996). The trial court must state these reasons in

order to guard against arbitrary sentences and to provide an adequate basis

for appellate review. Morgan, 675 N.E.2d at 1074.

In enhancing the presumptive sentence by twenty years, the sentencing

court, in its sentencing order, identified several aggravating

circumstances: the emotional and financial impact of the murder upon the

victim's family, the defendant's abuse of his relationship with the

victim's mother to establish a relationship with the victim, the

defendant's character,[4] the defendant's violation of the trust in his

relationship with the victim,[5] and the defendant's lack of remorse.[6]

Regarding a sentencing court's use of impact upon the victim's family

as an aggravating circumstance, our earlier decision in this case

instructed:

[U]nder normal circumstances the impact upon family is not an

aggravating circumstance for purposes of sentencing. The impact on

others may qualify as an aggravator in certain cases but "the

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

of a destructive nature that is not normally associated with the

commission of the offense in question and this impact must be

foreseeable to the defendant."

We appreciate the terrible loss of a loved one. But because

such impact on family members accompanies almost every murder, we

believe it is encompassed within the range of impact which the

presumptive sentence is designed to punish. In the present case,

nothing in the trial court's statement at sentencing suggests that the

impact on the victim's children and parents is of the type so distinct

so as to rise to the level of an aggravating circumstance.

Bacher, 686 N.E.2d at 801 (citations omitted).

In the sentencing hearing conducted upon remand, the trial court

acknowledged our instruction:

The Supreme Court noted that in the present case nothing in the trial

court statement at sentencing should suggest the impact of the

victim's children and parents is of the type so distinct as to rise to

the level of an aggravating circumstance. This sentencing hearing

here today, once again the daughter and mother of the victim had

testified and the daughter, through a letter from her brother, also

indicates continuing despair and grief on the part of the family.

This murder had affected this family far beyond the sentencing, the

first . . . sentencing in this case. The Court also noted that in the

pre-sentence report that there was certain financial obligations that

were placed upon the family because of the demise of the victim in

this case that had to be fulfilled by members of the family because of

the death. And this has also created not only an emotional impact on

the family, but a financial burden. So, [the sentencing court] finds

that in this particular case that [the sentencing] Court is justified

in finding that the impact on the family members is an aggravated

circumstance. . . .

Record at 108-09. The sentencing court also found significant the way in

which "the defendant made contact with the family" and "used his friendship

with the mother to develop a friendship with the victim." Record at 109.

In its ruling, the court stated that the defendant "abused his relationship

with the victim's mother to establish a relationship with the victim, which

is also deceitful and dishonest, which . . . placed a greater burden upon

the mother in this case because she feels as though she's also victimized

not only by a loss of a daughter, but by her friendship and trust and

reliability in this case." Record 109-10.

We are not convinced that the trial court's statement at sentencing

demonstrates that "the impact on the victim's children and parents is of

the type so distinct so as to rise to the level of an aggravating

circumstance." See Bacher, 686 N.E.2d at 801. Nevertheless, even if the

sentencing court in this case improperly used victim family impact as an

aggravating circumstance, the sentencing court did find at least one valid

aggravating factor. A single aggravating circumstance is adequate to

justify a sentence enhancement. Gibson v. State, 702 N.E.2d 707, 710 (Ind.

1998); Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997). When a

sentencing court improperly applies an aggravating circumstance, but other

valid aggravating circumstances do exist, a sentence enhancement may still

be upheld. Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709,

715 (Ind. 1998).

Relying upon Indiana Code section 35-38-1-7.1(c)(6), the defendant

contends that he has led a law-abiding life since 1972 and therefore that

the court should have found mitigating circumstances. In making this

claim, the defendant asserts that the trial court incorrectly applied, as a

criminal history, "three instances of involvement with the criminal justice

system to find that there were no mitigating circumstances in this case,"

Brief of Appellant at 6, and that "[t]he trial court has disregarded facts

that would tend to mitigate this sentence," id. at 9 (citing Widener v.

State, 659 N.E.2d 529, 534 (Ind. 1995)). In reviewing the defendant's

criminal history, the court noted:

In regards to the mitigated circumstance of prior criminal history, .

. . [t]he defendant does have prior criminal history, although it is .

. . I think the pre-sentence report only communicates two incidents

with the criminal justice system, one being an AWOL from the Army in

1972, speeding in 1988, and Public Intoxication in 1991. The Court

finds that AWOL is very serious. Once again the defendant has shown

that he is not capable of fulfilling a relationship with trust and

confidence placed in him by others. In the AWOL, the United States

Government placed trust and confidence in Mr. Bacher by saying that

you can become a member of the military. He reflected his attitude on

this gift by the United States Government by becoming AWOL. It's

similar to the relationship he developed here with the victim in this

case. Developing a relationship in which he really had no intentions

of fulfilling the duties and obligations of marriage, marriage

present. So, the Court find[s] that there are no mitigating

circumstances in this case.

Record at 110-11. The defendant contends that these findings of a prior

criminal history "are not supported by the record." Brief of Appellant at

8. Regarding the AWOL incident, the defendant argues that the incident

occurred in 1972 and was handled internally by the Army and that the

defendant continued to serve in the Army, receiving an honorable discharge

in 1983. Regarding the public intoxication incident, the defendant argues

that this charge has not been reduced to a conviction.

A sentencing court may consider as a mitigating circumstance that the

defendant "has no history of delinquency or criminal activity or the person

has led a law-abiding life for a substantial period before commission of

the crime." Ind. Code § 35-38-1-7.1(c)(6). Although a sentencing court

must consider all evidence of mitigating circumstances offered by the

defendant, the finding of a mitigating factor rests within the court's

discretion. Harris v. State, 659 N.E.2d 522, 528 (Ind. 1995) (citing

Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990)). "A court does not err

in failing to find mitigation when a mitigation claim is 'highly disputable

in nature, weight, or significance.'" Smith v. State, 670 N.E.2d 7, 8

(Ind. 1996) (quoting Wilkins v. State, 500 N.E.2d 747, 749 (Ind.1986)).

This Court has held that "allegations of prior criminal activity need not

be reduced to conviction in order to be considered a proper aggravating

factor." Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998) (citing Tunstill

v. State, 568 N.E.2d 539, 545 (Ind. 1991) (noting that a sentencing court

may properly consider as an aggravating factor prior arrests and pending

charges not reduced to convictions because they reflect the defendant's

character and indicate a risk of future crime)). While a failure to find

mitigating circumstances clearly supported by the record may imply that the

sentencing court improperly overlooked them, the court is obligated neither

to credit mitigating circumstances in the same manner as would the

defendant, nor to explain why he or she has chosen not to find mitigating

circumstance. Crawley, 677 N.E.2d at 523 (citing Johnson v. State, 580

N.E.2d 959, 961 (Ind. 1991); Hammons v. State, 493 N.E.2d 1250, 1254-55

(Ind. 1986)).

The sentencing court may determine within its sound discretion that

the three incidents constitute a criminal history. In so finding, the

sentencing court rejected the defendant's argument that he had led a law-

abiding life since 1972. Thus, the court did not abuse its discretion in

finding that no mitigating circumstances existed.

In this case, even if the sentencing court improperly considered

impact on the victim's family as an aggravating circumstance, the

sentencing court found at least one valid aggravating factor and no

mitigating factors. Because a single valid aggravating factor is adequate

to justify a sentence enhancement, the sentencing court did not abuse its

discretion in enhancing the defendant's sentence.

The defendant's sentence of sixty years is affirmed.

SHEPARD, C.J., and BOEHM, J., concur. RUCKER, J., dissents with

separate opinion in which SULLIVAN, J., concurs.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN M. EISELE JEFFREY A. MODISETT

Anderson, Indiana Attorney General of Indiana

JAMES D. DIMITRI

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JOHN R. BACHER, )

)

Appellant-Defendant, )

)

vs. ) No. 48S00-9804-CR-237

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON SUPERIOR COURT

The Honorable Thomas Newman, Judge

Cause No. 48D03-9502-CF-070

On Direct Appeal

January 6, 2000

RUCKER, Justice, dissenting

I respectfully dissent. I am not persuaded the nature of the offense

and the character of the offender justify the maximum sentence in this

case. I would remand with instructions that the trial court impose a

sentence of fifty (50) years.

SULLIVAN, J., concurs.

-----------------------

[1] Ind. Code § 35-42-1-1.

[2] At the time of the murder, our legislature prescribed a

presumptive sentence of forty years for a person who commits murder.

Ind.Code § 35-50-2-3(a) (1993). This sentence could be enhanced with no

more than twenty years for aggravating circumstances and reduced no more

than ten years for mitigating circumstances. Id.

[3] In the first appeal, we remanded for a new sentencing hearing

after noting our concerns about "the aggravating circumstances and the fact

that the trial court failed to discuss the proferred mitigating

circumstances of lack of prior history of criminal conduct" and observed

that the sentence "contains the maximum enhancement permitted by law and

should, therefore, be reserved for the very worst offenses and offenders."

Bacher, 686 N.E.2d at 802.

[4] The court found that "the actions and behavior of the defendant

represented a personality and character bent towards evil and

misrepresentation." Record at 111. The court also characterized the

defendant's actions as "deceitful and dishonest" and noted that the

defendant's actions show "that he is not capable of fulfilling a

relationship with trust and confidence placed in him by others." Record at

110. Considering the evidence of lies and misrepresentations, the court

concluded that the defendant "shows a personality character of the type of

person this society needs to be protected from." Record at 111. The

defendant's character is a valid aggravating factor. See Cooper v. State,

687 N.E.2d 350, 354 (Ind. 1997) (noting that the Indiana Code § 35-38-1-

7.1(a)(3)(B) requires the sentencing court to consider the defendant's

character in making its determination and recognizing character as an

aggravating factor) (citing Wray v. State, 547 N.E.2d 1062, 1068

(Ind.1989)).

[5] The sentencing court stated that "[t]his crime was particularly

heinous in the fact that [the defendant] used the trust of the marital

relationship to put himself in position . . . once the victim in this case

found out that the defendant was not in fact the person she thought he was,

became suspicious and distrustful. The defendant reacted in such a way . .

. in a way of killing her." Record at 111-12. Being in a "position of

trust" with the victim is a valid aggravating circumstance. See Edgecomb

v. State, 673 N.E.2d 1185, 1198 (Ind. 1996) (noting that being a "neighbor"

who occasionally borrowed things from and casually conversed with the

victim, while encompassing a higher degree of societal relationship and

philial responsibility, is not a "position of trust" warranting

consideration as an aggravating circumstance) (citing Wesby v. State, 535

N.E.2d 133 (Ind. 1989) (affirming a trial court's use as an aggravating

factor the fact that a "position of trust" existed between the defendant

and the victim where the defendant was convicted of robbing and murdering a

woman who had known the defendant since childhood, as she had formerly been

the girlfriend of the defendant's father)); Martin v. State, 535 N.E.2d 493

(Ind. 1989) (affirming a trial court's finding of a "position of trust"

where the defendant, a live-in boyfriend, beat his girlfriend's son to

death while babysitting).

[6] The sentencing court stated, "[The defendant] was very cavalier

about the process, he showed lack of remorse, and the Court also finds that

that is an aggravated circumstance in this case." Record at 112. This

Court has held that a sentencing court may consider as a modest aggravating

circumstance the fact that a defendant lacks remorse and insists upon his

innocence. See Bacher, 686 N.E.2d at 801; Owens v. State, 544 N.E.2d 1375,

1379 (Ind. 1989).