Delmas Sexton II v. State of Indiana

968 N.E.2d 837, 2012 Ind. App. LEXIS 278, 2012 WL 2087173
CourtIndiana Court of Appeals
DecidedJune 11, 2012
Docket02A03-1110-CR-465
StatusPublished
Cited by5 cases

This text of 968 N.E.2d 837 (Delmas Sexton II v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delmas Sexton II v. State of Indiana, 968 N.E.2d 837, 2012 Ind. App. LEXIS 278, 2012 WL 2087173 (Ind. Ct. App. 2012).

Opinions

OPINION

SHEPARD, Senior Judge.

Delmas Sexton II appeals his sixty-five-year sentence for felony murder. Princi[839]*839pally, Sexton contends that the trial court abused its discretion in sentencing him when it found as an aggravating circumstance the fact that as a multiple-conviction felon he was unlawfully possessing the gun he used to kill his victim. This is a question about which there is some disagreement in the reported decisions, but we affirm.

FACTS AND PROCEDURAL HISTORY

On March 24, 2009, Sexton went to Donald McKee’s residence in Allen County, ordered McKee at gunpoint to write him checks, bound him with duct tape, covered his head, and forced him into a truck. As McKee begged for his life, Sexton shot him in the head three times. McKee’s body was found over a week later in the truck inside an unattached garage.

The State charged Sexton with murder, felony murder, class A robbery, criminal confinement and unlawful possession of a firearm by a serious violent felon, both as class B felonies, and two counts of class C forgery. It also alleged that Sexton was an habitual offender.

In December 2010, on the day his jury trial was to begin, Sexton punched his attorney in the face in open court. The jury trial was cancelled. Shortly after, Sexton sent a death threat targeting the presiding judge and his family. This eventually led to the appointment of a new special judge. In September 2011, on the day his jury trial was to begin anew, Sexton pled guilty to felony murder pursuant to a plea agreement in which the State agreed to dismiss all the remaining charges. The trial court accepted the plea and entered judgment of conviction.

At the sentencing hearing, Judge Terry Shewmaker entered an exceptionally thorough statement about aggravating and mitigating circumstances.

Among the aggravators, the court identified: (1) Sexton’s criminal history, namely, two convictions for battery as misdemeanors and two as felonies, two felony convictions for criminal confinement, and a felony conviction for intimidation; (2) Sexton’s previous violation of probation; (3) his lack of respect for the court process; (4) the escalating nature of his crimes of violence; (5) his juvenile history, which includes three adjudications for attempted child molesting; (6) his use of illegal drugs, running from cocaine to heroin to methamphetamine to acid and more; (7) his attempt to manipulate evidence in this case (a witness testified that he signed an affidavit under threat by Sexton that he would otherwise have him or his family killed); (8) that Sexton is in need of correctional rehabilitation best provided in a penal facility for a lengthy period of time; (9) that McKee was “left languishing,” Sent. Tr. p. 63; (10) that Sexton is at very high risk of reoffending, according to an assessment under the Indiana Risk Assessment System; and (11) that Sexton possessed a handgun despite his prior felony convictions.

Among the mitigators, the trial court identified: (1) Sexton’s acceptance of responsibility, tempered by the fact that his guilty plea occurred on the day of trial; (2) that he is intelligent; (3) his mental health issues, which the court gave minimal weight because evidence on that point was from mental health records nearly twenty years old; and (4) his drug addiction, which the court gave minimal weight because previous intensive inpatient treatment had not been successful.

In evaluating the aggravators and miti-gators, the trial court stated, “Any one of the aggravators that I have listed is substantial enough alone or taken in conjunction with the other[s] to warrant the imposition of a full ten[-]year enhanced [840]*840sentence.” Id. at 67. The trial court sentenced Sexton to the maximum term of sixty-five years executed. Sexton now appeals his sentence.

DISCUSSION AND DECISION

Sexton challenges a number of the aggravating circumstances found by the trial court. Such findings rest within the sound discretion of the trial court, and we review them on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218 (2007).

Principally, Sexton argues that his illegal possession of the murder weapon was an improper aggravator because the charge of unlawful possession of a firearm by a serious violent felon was dismissed pursuant to his plea agreement.

The legal basis for this contention flows from Hammons v. State, 493 N.E.2d 1250 (Ind.1986). Hammons stood trial for murder, and the jury found him guilty of the lesser included offense of voluntary manslaughter. In sentencing the defendant, the trial court repeatedly declared that the jury had been wrong, that Hammons had in fact committed murder, and that the maximum penalty for manslaughter should be imposed in recognition of that fact. The Supreme Court reversed, holding that this invaded the province of the jury and was tantamount to sentencing the defendant for the crime on which he had been acquitted. Id. at 1253.

This Court later took a similar approach in the context of a guilty plea. Conwell v. State, 542 N.E.2d 1024 (Ind.Ct.App.1989). The State had charged Conwell with burglary as a class B felony, but the parties submitted a plea bargain under which Conwell pled to burglary as a class C. This Court held that the sentencing judge could not find as an aggravator the fact that the burglary had occurred at a residence because that was the very fact that distinguished the class B and class C versions of the offense. Id. at 1025.

These holdings about sentencing on lesser included offenses were later applied in a somewhat different setting.

In Farmer v. State, 772 N.E.2d 1025 (Ind.Ct.App.2002), the defendant was charged with attempted murder, burglary resulting in bodily injury, intimidation, and resisting law enforcement. He pled guilty to attempted murder, and the State dismissed the remaining charges. In sentencing the defendant, the trial court identified as aggravators that the offense occurred in the victim’s home, that the defendant screamed threats at the victim, and that he disobeyed a police officer’s command to release the victim. Farmer argued on appeal that the court improperly relied on these facts because they supported the burglary, intimidation, and resisting law enforcement charges that were dismissed as a part of his plea agreement. A panel of this Court agreed, stating that if the defendant “were sentenced more harshly in reliance upon these facts, he would not receive the full benefit of his plea agreement.” Id. at 1027.

Whether Farmer represents appropriate practice or not has recently been the subject of disagreement in this Court. In Bethea v. State, 964 N.E.2d 255 (Ind.Ct.App.2012), trans. granted, the defendant faced multiple charges, including burglary resulting in bodily injury, two counts of robbery, and three counts of confinement.

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968 N.E.2d 837, 2012 Ind. App. LEXIS 278, 2012 WL 2087173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delmas-sexton-ii-v-state-of-indiana-indctapp-2012.