Bluck v. State

716 N.E.2d 507, 1999 Ind. App. LEXIS 1501, 1999 WL 735808

Opinions

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Robbie R. Bluck appeals from his seventy-six year sentence, the maximum permitted by law, following convictions on three counts of Child Molesting as Class B felonies, and two counts of Child Molesting as Class C felonies.¹ Bluck contends that the court impermissibly punished him for exercising his right to a jury trial, based his sentence on invalid aggravating circumstances and imposed a manifestly unreasonable sentence.

We affirm in part, reverse in part and remand.

FACTS

Bluck lived in an apartment in the same building where thirteen-year-old J.A. lived with his family. J.A. visited Bluck almost every day. On one occasion, when J.A. and Bluck were alone, Bluck pulled down his own pants and told J.A. to do the same. J.A. complied. Bluck fondled J.A.’s penis, and the minor reciprocated. Over a four-month period there were approximately ten to fifteen similar incidents. Bluck also performed fellatio and anal intercourse on J.A., and J.A. performed fellatio on Bluck.

The State charged Bluck with five counts of child molesting. At Bluck’s first trial, the jury was unable to reach a verdict, and the court declared a mistrial. Upon re-trial, the jury found Bluck guilty on all counts. In its sentencing statement, the court enumerated four aggravators and one mitigator, found that the aggrava-tors outweighed the mitigator, and imposed the maximum sentence of twenty years for each of the three Class B felonies, the maximum sentence of eight years for each of the Class C felonies, and then ordered the sentences to run consecutively, for a total executed term of seventy-six years. Bluck now appeals.²

DISCUSSION AND DECISION

A. Jury Trial

Bluck first contends that the severity of his sentence demonstrates that the trial court impermissibly punished him for exercising his constitutional right to a jury trial. The right to trial by jury for serious offenses is a fundamental right. Walker v. State, 454 N.E.2d 425, 429 (Ind.Ct.App.1983), trans. denied. A more severe sentence may not be imposed upon a defendant because he exercises that right. Hill v. State, 499 N.E.2d 1103, 1107 (Ind.1986); Walker, 454 N.E.2d at 429.

In support of his claim, Bluck asserts generally that his sentence is several times greater than sentences usually imposed on other first time offenders in the Clinton Circuit Court. Even if that were true, Bluck has not shown that the sentence resulted from his having exercised his right to a jury trial. The trial court did not mention the jury trial when it sentenced Bluck and, without any probative evidence, we cannot say that the sentence violated Bluck’s constitutional rights on those grounds. See Hill, 499 N.E.2d at 1107; Walker, 454 N.E.2d at 430.

B. Sentencing Statement

Next, Bluck contends that the court identified improper aggravating circumstances. Generally, sentencing determinations are within the trial court’s discretion and are governed by Indiana Code Section 35-38-1-7.1. Thacker v. State, 709 N.E.2d 3, 9 (Ind.1999). When enhancing a presumptive sentence, the trial court must identify all “significant” aggravating and mitigating factors, state why each is considered aggravating or mitigating, and articulate the balancing process by which the court determined that the aggravating factors outweighed the mitigating factors. Coleman v. State, 694 N.E.2d 269, 279 (Ind.1998). The same aggravating circumstances may be used to enhance a presumptive sentence and to impose consecutive sentences. Hardebeck v. State, 656 N.E.2d 486, 491 (Ind.Ct.App.1995), trans. denied.

Here, Bluck challenges the following separately identified aggravating circumstances:

1. Correctional Treatment

The court stated:

The defendant is in need of correctional treatment that can best be served by commitment to a penal facility. He is not a suitable candidate for rehabilitative treatment because of his denial that the present offenses occurred. The child molesting expert this Court uses, Ed Pereira, Family Services Society in Marion, Indiana, has testified on many occasions in this Court that rehabilitation is not possible without the defendant admitting the molestation and having.empathy for the victim.

(emphasis added). The need for correctional treatment best served by commitment to a penal facility is a proper aggra-vator only when the trial court articulates why the specific defendant requires treatment for a period of time in excess of the presumptive sentence. Beason v. State, 690 N.E.2d 277, 281-82 (Ind.1998). Here, in its formal sentencing statement, the court relied upon testimony from an expert in other cases to conclude that, because Bluck denied the molestations, rehabilitation was not possible. During the sentencing colloquy, the court also remarked, “[I]t’s pretty well known within the field that a [sex offender] is not a suitable candidate for treatment [who] denies the offenses.”

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); Jackson v. State, 697 N.E.2d 53, 55 (Ind.1998). The rationale for the relaxation of evidentiary rules is that, in a trial, the issue is whether a defendant is guilty of having engaged in certain criminal conduct, and the rules of evidence limit the evidence to that strictly relevant to the crime charged. Thomas v. State, 562 N.E.2d 43, 47 (Ind.Ct.App.1990). At sentencing, however, the evidence is not confined to the narrow issue of guilt. Id. Rather, the task is to determine the type and extent of punishment. Id. “This individualized sentencing process requires possession of the fullest information possible concerning the defendant’s life and characteristics.” Id.

Nevertheless, the defendant is entitled to be sentenced only on the basis of accurate information, and the defendant retains the right to refute any inaccurate or improper information. Dillon v. State, 492 N.E.2d 661, 663 (Ind.1986). The sentencing process should be fair to each individual defendant, and a sentence based on materially untrue assumptions violates due process. Id. (citations omitted). There is literature indicating that typical sex offenders cannot be rehabilitated until they admit their behavior. See, e.g., Melissa R. Saad, Note, Civil Commitment and the Sexually Violent Predator: Stability Without Tyranny and Liberty Without Anarchy, 75 Denv. U.L.Rev. 595, 604-05 (1998). However, when sentencing a particular defendant, profile evidence regarding the “average” child molester may or may not be probative. While Bluck’s character is at issue, the court must base its sentencing decision on factors attributable specifically to him rather than on his identification with a general class or category of offenders. See Beason, 690 N.E.2d at 281-82. The record contains no relevant evaluation or diagnosis, and Bluck had no fair opportunity to refute the information on which the court relied, material that, in any event, was neither specific to him nor included in the pre-sentence report nor received into evidence.

We recognize that successful psychological therapy may well depend upon the sex offender’s admission of his guilt. Nevertheless, in a court of law, the defendant has the right to protest his innocence at all stages of the criminal proceeding, including sentencing. Dockery v. State, 504 N.E.2d 291, 297 (Ind.Ct.App.1987). It is not an aggravating factor for a dfefendant, in good faith, to consistently maintain his innocence, and a court may not enhance a sentence for that reason. Angleton v. State, 686 N.E.2d 803, 816 (Ind.1997). In its brief, the State concedes, in effect, that the court’s reliance on Bluck’s failure to admit his guilt cannot support the sentence enhancement.³ We agree and conclude that the court was not justified in finding that Bluck required treatment for a period of time in excess of the presumptive sentence because he denied having committed the molestations.

2. Lack of Remorse

The State, however, claims that the reason the court found Bluck needed treatment beyond the presumptive period was because he showed no remorse. In a separately identified but related ag-gravator, the court stated:

Defendant has shown no remorse for these offenses. The lack of remorse can be used as an aggravating circumstance because of the corroboration of the victim and polygraph expert, Ernie Hudson.

A defendant lacks remorse when he displays disdain or recalcitrance, the equivalent of “I don’t care.” Smith v. State, 655 N.E.2d 532, 539 (Ind.Ct.App.1995), trans. denied. This has been distinguished from the right to maintain one’s innocence, i.e., “I didn’t do it.” Id. Our supreme court has stated that a lack of remorse by a defendant who insists upon his innocence may be regarded as an aggravator. Bacher v. State, 686 N.E.2d 791, 801 (Ind.1997). An exception has been found where a defendant maintained his innocence and the only evidence of guilt was the victim’s uncorroborated testimony. See Dockery, 504 N.E.2d at 297.

Bluck does not challenge the factual predicate for the court’s finding but relies upon Dockery and argues that there was no physical evidence to corroborate J.A.’s testimony. The State counters that Bluck failed a polygraph test, the results of which were admitted at his trial. This, the State argues, constitutes sufficient independent evidence to warrant the court’s use of the lack of remorse aggravator. We agree that there is evidence corroborating the victim’s testimony so that Dockery does not control. Under Bacher, the court was justified in enhancing Bluck’s sentence based upon his lack of remorse.

3. Elements of the Offenses

Bluck argues that the court impermissibly used the elements of the offenses to enhance his sentence. He challenges the following statement:

Although this is defendant’s first known conviction, his actions in these offenses were repetitive and ongoing in nature. The 13 year old victim was violated in every way possible sexually. Further, defendant has two counts of Sexual Misconduct with a Minor and one count of Child Solicitation on three different victims from the victim in this case,[⁴] which are pending trial.

We agree that the victim’s age and the criminal acts are material elements of child molesting and, thus, not available to enhance a sentence. See Morgan v. State, 675 N.E.2d 1067, 1073 (Ind.1996). But here the court also described the repetitive and ongoing nature and circumstances of the crimes, including the uncharged acts against J.A., which may be considered an aggravator. Ind.Code § 35—38—1—7.1(a)(2); Mitchem v. State, 685 N.E.2d 671, 680 (Ind.1997).

The court also noted Bluck’s arrests on similar charges with respect to other alleged victims. A defendant’s record of arrests may be relevant to the trial court’s assessment of the defendant’s character in terms of the risk that he will commit another crime. Taylor v. State, 695 N.E.2d 117, 121 (Ind.1998). As this court has recognized, criminal charges pending at the time of sentencing may also be used to enhance a sentence. Fourthman v. State, 658 N.E.2d 88, 92 (Ind.Ct. App.1995), trans. denied. Because the challenged statement identifies two valid aggravators, we find no error on this issue.

4. Position of Trust

Bluck also maintains the court erred when it found the following aggravator:

Defendant gained the trust of the victim by first inviting him into his home, and then once the molestation started, he threatened to kill the victim and his family.

J.A. testified that Bluck threatened to “get” J.A., his mother and his sisters if he told anyone about the incidents. Bluck did not explain what “get them” meant. The victim inferred that Bluck would “try to kill [him] or something. [He] wasn’t for sure.” Bluck also threatened to take J.A. to Mexico and sell him. These threats further describe the nature and circumstances of the crime.

The State construes the court’s finding as a statement that Bluck was in a “position of trust” with J.A. We cannot agree. The court did not use that phrase, and Bluck was merely J.A.’s neighbor. Being a neighbor, without more, is not a position of trust warranting its consideration as an aggravating circumstance. See Edgecomb v. State, 673 N.E.2d 1185, 1198 (Ind.1996); cf. Smith v. State, 678 N.E.2d 1152 (Ind.Ct.App.1997) (teacher, coach sponsor and mentor), trans. denied; Singer v. State, 674 N.E.2d 11 (Ind.Ct.App.1996) (sole custodial parent); Shaffer v. State, 674 N.E.2d 1 (Ind.Ct.App.1996) (babysitter), trans. denied. The court’s finding merely describes the nature and circumstances of the crime. As such, it was not a separate aggravator but was one and the same aggravator as that previously discussed. See supra section (B)(3).

In addition, the trial court identified but gave no weight to a significant mitigator, Bluck’s lack of a criminal history. The dissent notes that, according to writers in the field, many molesters have committed multiple offenses before ever being charged and that the circumstances in this case support the inference that Bluck’s lack of a criminal history reflects no more than that he was not previously caught. Thus, the dissent reasons that the trial court was justified in discounting this factor “to near zero.”

As a general rule, the trial court is not required to find the presence of mitigating factors, Fugate v. State, 608 N.E.2d 1370, 1374 (Ind.1993), and is under no obligation to assign a particular weight to a mitigator it has found. Culpepper v. State, 662 N.E.2d 670, 678 (Ind.Ct.App.1996), trans. denied. Bluck now has a criminal record which the court shall consider in determining what sentence to impose, see Ind.Code § 35-38-l-7.1(a)(3)(A), and which the court may consider as an aggravating circumstance, see Ind.Code § 35-38-l-7.1(b)(2), should he be convicted and sentenced again on other charges. This case, however, is Bluck’s first conviction. In a criminal justice system founded on the principles of reformation, see Ind. Const. art. I, § 18, where reasonably possible, sentencing orders should distinguish between first offenders and repeat offenders. See Fointno v. State, 487 N.E.2d 140, 144 (Ind.1986) (Indiana Bill of Rights reveals concern that, notwithstanding society’s valid concerns with protecting itself and providing retribution for serious crimes, the criminal justice system must afford an opportunity for rehabilitation where reasonably possible). Our supreme court has said that no prior criminal record is a factor which deserves “substantial mitigating weight,” Loveless v. State, 642 N.E.2d 974, 976 (Ind.1994), but by imposing the maximum sentence permitted by law, the court in this case gave the mitigator no weight at all.

In sum, the court identified two invalid aggravating circumstances (need for correctional treatment based upon the refusal to admit guilt and position of trust), several valid aggravating circumstances (lack of remorse, circumstances of the crimes and character of defendant) and one mitigating circumstance. A single valid aggravator is sufficient to support an enhanced sentence. Kingery v. State, 659 N.E.2d 490, 496 (Ind.1995). Nevertheless, we are not persuaded that the original sentence would have been the same had the trial court not relied on impermissible factors and had the court given some weight to Bluck’s lack of a criminal history. Under these circumstances, we remand to the trial court so that the valid aggravators may be reweighed against the mitigating factor. See Day v. State, 560 N.E.2d 641, 643 (Ind.1990); see also Miller v. State, 709 N.E.2d 48, 50 (Ind.Ct.App.1999) (remand for re-sentencing when reviewing court could not determine weight trial court assigned to invalid aggravators).

C. Manifestly Unreasonable Sentence

Finally, Bluck insists that his sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender. He argues that he has no prior criminal record, was convicted of offenses that caused no physical harm and has a “spotless” military record with a security clearance. He asserts that his maximum sentence violates the principle that the primary consideration of the trial court during sentencing is rehabilitation. See Hardebeck, 656 N.E.2d at 490 (citing Ind. Const. art. I, § 18).

In considering the nature of the offense and the character of the offender, we know that crimes against children are contemptible, Singer, 674 N.E.2d at 15, and that child molesters are often predators. Bluck’s conduct here is reprehensible, and his sentence was authorized by statute. While actual physical injury to the victim can support a sentence enhancement, see, e.g., Smith v. State, 485 N.E.2d 898, 901 (Ind.1985), it does not follow that the absence of physical injury means the court should not impose an enhanced sentence. Buchanan v. State, 699 N.E.2d 655, 657 (Ind.1998). And an honorable military service record does not excuse a sex crime.

We share many of the concerns expressed by the dissent about the proper role of an appellate court in determining the appropriate sentence for a convicted offender. The full panel in this case has struggled with the issue. “[T]he appellate process is uniquely suited to dispassionate consideration of the subject free of the everyday pressures of a trial courtroom.” Cunningham v. State, 469 N.E.2d 1, 8 (Ind.Ct.App.1984), trans. denied. But sentencing decisions often defy quantification. Carter v. State, 711 N.E.2d 835, 841 (Ind.1999). Sentencing is fact-sensitive, and our standard of review remains highly deferential. These factors make principled appellate review and revision of sentences difficult.

Until recently, the governing appellate rule stated:

(1) The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.

(2) A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed.

Rule 2, Indiana Rules for the Appellate Review of Sentences (effective Jan. 1, 1978); Ind. Appellate Rule 17(B) (effective Jan. 1, 1990). The “no reasonable person” provision established an almost impossible standard to meet. See Fointno, 487 N.E.2d at 149 (reasonable minds may differ on what sentence is appropriate in any given case). But effective March 1, 1997, our supreme court amended Appellate Rule 17(B) and paragraph (2), including the “no reasonable person” provision, was deleted. The current Rule 17(B) both permits and invites more meaningful appellate review.

While we are challenged to articulate appellate standards, the Indiana Constitution specifically charges this court with responsibility to review and revise sentences “to the extent provided by rule.” Ind. Const. art. VII, § 6. This authority is found in the text of the Constitution and is independent from our general appellate jurisdiction. Thus, we cannot agree that this court’s constitutional mandate to review and revise sentences is as narrowly circumscribed as the dissent, suggests. See Cunningham, 469 N.E.2d at 8 (although “loath to review any sentence imposed by a trial court” this court is constitutionally mandated to do so).

Here, because we remand for re-sentencing, we need not decide whether Bluck’s sentence is manifestly unreasonable. In re-sentencing Bluck, however, the trial court should follow our supreme court’s recent instruction that “the maximum sentence enhancement permitted by law ... should ... be reserved for the very worst offenses and offenders.’ ” Buchanan v. State, 699 N.E.2d 655, 657 (Ind.1998) (quoting Bacher, 686 N.E.2d at 802).

Affirmed in part, reversed in part and remanded.

KIRSCH, J„ concurs. GARRARD, J., dissents with separate opinion.

Footnotes

1

. See Ind.Code §§ 35-42-4-3(a) and (b).

2

. We remind counsel for Appellant that the "Facts” section of his appellate brief should contain "[a] statement of the facts relevant to the issues presented for review, with appropriate references to the record.” Ind. Appellate Rule 8.3(A)(5). This differs from the "Statement of the Case" which includes "the course of proceedings relevant to the issues presented for review....” Ind. Appellate Rule 8.3(A)(4).

3

. The State asserts Bluck's lack of remorse, a separately identified aggravator, as the reason that Bluck was in need of correctional treatment beyond the presumptive sentence. See infra.

4

. The State charged Bluck under the same cause number with sexual misconduct with a minor and child solicitation. Those charges concerned two other victims and were severed for purposes of trial. In addition, Bluck was apparently charged under a separate cause number with sexual misconduct involving a fourth victim.