Shaw v. State

771 N.E.2d 85, 2002 WL 1494139
Indiana Court of Appeals·Decided July 15, 2002·No. 46A05-0202-CR-65·Published·Cited by 2 cases

Opinions

OPINION

KIRSCH, Judge.

Heather J. Shaw pled guilty and was convicted of attempted murder,1 a Class A felony. She was sentenced to fifty years' imprisonment, which she appealed. A panel of this court determined that the [87] trial court considered an improper aggravating circumstance and remanded the case for re-sentencing. On remand, the trial court found that "the original sentence of fifty (50) years remains appropriate." Shaw appeals again, arguing that the amended sentencing order is insufficient and her sentence is manifestly unreasonable. '

We affirm.

FACTS AND PROCEDURAL HISTORY

The pertinent facts are found in our memorandum decision in Shaw's previous appeal, Shaw v. State, No. 46A05-001-CR-472, 756 N.E.2d 1101 (Ind.Ct.App. September 26, 2001):

"The facts reveal that the victim, Nick lumac, suffered from lung cancer, which eventually confined him to his bed and required him to have home health care assistance. In September 1998, Glumae's family hired Shaw to live in Glumac's home and care for him at night. During periods of time in which Glumac required hospitalization, Shaw and her six-year-old son would continue living in Glumac's home and Shaw would, in effect, be on vacation from taking care of him.
In May 1999, Clumace was hospitalized for over one week due to an allergic reaction to an antibiotic. Shaw enjoyed this vacation from Glumac, as she thought he was too controlling. Shaw, still needing a break from him, decided to buy a tablet grinder on the day of his release from the hospital so that she could slip the antibiotic into his food. Upon her first attempt, Clumac refused to eat the food because it tasted bad. For four days thereafter, morning and night, Shaw stirred the crushed drug into his juice. She observed no effect.
Shaw next attempted to induce an allergic reaction from Glumac by changing laundry detergent. This, too, did not achieve her desired result of sending Glumae back to the hospital. She then, for six days, replaced CGlumac's kidney medication with different medication that she had stolen from another patient. She became very frustrated that there was no apparent effect on Clumac.
On June 13, Shaw obtained antifreeze, and the following day, she put a potentially lethal dose in Glumac's coffee. She made sure that he drank all of it and then left for her day job. Shaw returned later that day and found Hu-mac incoherent and confused. Finally, she had succeeded and Glumae was hospitalized on June 14.
Shaw visited CGlumac in the hospital each day and spent time with his family. At no time did she alert anyone to the possibility that he might be suffering from being poisoned. After a lengthy visit on June 17, she took one of Glu-mac's checks, forged it, and cashed it for one hundred dollars. On June 18, Glu-mac's family disconnected his life support and the following day he passed away from kidney failure. That same day, Shaw forged another one hundred dollar check. .
On June 27, Shaw's best friend sought out the police and informed them of what she knew about Shaw's conduct. Police questioned Shaw soon thereafter, but she denied any wrongdoing. A see-ond interview with Shaw was conducted on July 5. She initially admitted stealing Glumac's checks but denied poisoning him. Once a le detector test was set up, Shaw broke down and confessed.
The State charged Shaw with attempted murder on July 8, 1999. The State initially believed that it could not prove the cause of death because (lu-[88] mac had been cremated. On February 18, 2000, however, the State filed a motion to amend the charging information to add a charge of murder. Before the trial court could rule upon the motion, Shaw reached a plea agreement with the State. Pursuant to the plea agreement, Shaw pled guilty to attempted murder and the State dismissed forgery charges that were filed in a separate action. The plea agreement made no provision with regard to sentencing."

Id. at * 2-4.

The trial court sentenced Shaw to fifty years' imprisonment. In her first appeal, Shaw argued that the trial court improperly considered Glumaec's death as an aggravating circumstance.2 Id. at *5. Relying on Conwell v. State, 542 N.E.2d 1024 (Ind.Ct.App.1989), a panel of this court determined that the trial court erred when it considered Glumac's death as an aggravating cireumstance because attempted murder is a lesser included offense of murder and "when a defendant pleads guilty to an included offense, the element(s) distinguishing it from the greater offense may not be used as an aggravating cireum-stance to enhance the sentence." Id. at * 6. The case was then remanded for proceedings consistent with our opinion.

On remand, the trial court again sentenced Shaw to fifty years' imprisonment. Shaw now appeals.

I. The Amended Sentencing Order

Shaw contends "the trial court's amended sentencing order contains no reference to the specific nature of the offense or the character of the offender and is therefore insufficient to afford an adequate review of the propriety of the fifty year sentence." Appellant's Brief at 7. The State argues that the trial court's amended sentencing statement directly addresses our decision that it applied an improper aggravating circumstance and the amended order, taken in conjunction with the original sentencing order, is sufficient.

First, we note that "[al sentencing statement serves two purposes: (1) it guards against the imposition of arbitrary or capricious sentences by ensuring that the sentencing judge will consider only proper factors; and (2) it facilitates appellate review of the sentence." Singer v. State, 674 N.E.2d 11, 14 (Ind.Ct.App.1996) (citation omitted).

"As long as the record indicates that the trial court engaged in the evaluative processes and the sentence was not manifestly unreasonable, the purposes of the sentencing statement have been satisfied. When reviewing a sentencing statement this court is not limited to the written sentencing order but may examine the record as a whole to determine that the trial court made a sufficient statement of its reasons for selecting the sentence imposed."

Id. (internal citation omitted); see also Newman v. State, 719 N.E.2d 832, 839 (Ind.Ct.App.1999), trans. denied (2000).

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Shaw v. State, 771 N.E.2d 85, 2002 WL 1494139 (Ind. Ct. App. 2002).

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