Sherwood v. State

749 N.E.2d 36, 2001 WL 580359
CourtIndiana Supreme Court
DecidedMay 31, 2001
Docket48S00-9906-CR-363
StatusPublished
Cited by60 cases

This text of 749 N.E.2d 36 (Sherwood v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sherwood v. State, 749 N.E.2d 36, 2001 WL 580359 (Ind. 2001).

Opinions

SULLIVAN, Justice.

Defendant Herschell Sherwood was convicted of murder and conspiracy to commit robbery. We affirmed his conviction, but remanded the case to the trial court for a new sentencing order. Because the new sentencing order contains a number of the same inadequacies as the initial sentence, we exercise our authority to review and revise the sentence here.

Background,

The facts most favorable to the verdict indicate that on December 13,1993, Defendant and an accomplice murdered Jerry Baugh at a car wash while attempting to rob him.1 Defendant was convicted of Murder,2 and Conspiracy to Commit Robbery, a Class B felony.3

At the sentencing hearing, Defendant introduced evidence of mitigating circumstances. Defendant called witnesses who testified that he had previously led a law-abiding life and was involved in church activities as a young man; that his divorce and the death of his father had disturbed him and led to more unstable behavior; that he was a good worker and not a violent person; and that his involvement in the crimes of which he was convicted was out of character for him. Defendant also cited his remorse as a mitigating circumstance.

The trial court did not address the mitigation evidence, but found four aggravating circumstances: (1) the imposition of a reduced sentence would depreciate the seriousness of the crime, (2) the crime was a particularly heinous act, (3) Defendant was previously involved with cocaine, and (4) the crime impacted the victim’s family. See Sherwood v. State, 702 N.E.2d 694, 700 (Ind.1998). The trial court sentenced Defendant to 80 years — consecutive sentences of 60 years for the murder and 20 years for the conspiracy to commit robbery convictions.4 Id. at 696.

On appeal, we found the sentencing order improper in three respects. First, we [38]*38found that the “trial court inappropriately applied the first aggravating circumstance.” Id. at 700. Second, we found the third aggravating circumstance — Defendant’s involvement with cocaine — to be inappropriate in this case. Id. Finally, we found that the trial court erroneously failed to consider Defendant’s proffered mitigation evidence. Id. Because the trial court incorrectly sentenced Defendant, we remanded the case to the trial court for a new sentencing order. Id.

On remand, the trial court did not alter the original sentence. It did issue a new sentencing order, from which Defendant appeals, arguing that it suffers from the same defects as the original order.

Discussion

Trial courts have discretion in sentencing, and we review such decisions only for an abuse of discretion. See Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.1996). When sentencing a defendant, a trial court may consider certain aggravating and mitigating circumstances. See Ind. Code §§ 35-38-l-7.1(b) and 35-38-1-7.1(c) (1993). The court may increase a sentence or impose consecutive sentences if the court finds aggravating factors. See id. § 35-38-l-7.1(b). One valid aggravator alone is enough to enhance a sentence or impose it to run consecutively with another. See id. See also Smith v. State, 675 N.E.2d 693, 697 (Ind.1996). The court may also consider certain factors as mitigating or as favoring a reduced or suspended sentence. See id.

Indiana law requires that the trial court take the following steps during sentencing: (1) identify all significant mitigating and aggravating circumstances; (2) specify facts and reasons which lead the court to find the existence of each such circumstance; and (3) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. See Morgan, 675 N.E.2d at 1073; Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind.1987).

The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind.1997). Indiana law, however, mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating circumstances that are clearly supported by the record may imply that the trial court failed to properly consider them. See id.

A

We originally remanded this case for a new sentencing order based on the trial court’s treatment of the aggravating and mitigating circumstances. See Sherwood, 702 N.E.2d at 700. Defendant had presented and argued the existence of mitigating circumstances, but the trial court did not acknowledge them. See id. Because there was no indication whether the trial court rejected these factors or failed to consider them, we assumed that the trial court failed to consider the mitigating evidence. See id. Additionally, we found that the trial court “inappropriately applied the first aggravating circumstance.”5 See id.

We also held that the trial court improperly considered Defendant’s prior cocaine involvement. See id. At the sentencing hearing, the State presented evidence of an arrest for cocaine use while Defendant [39]*39was in the military. See id. The basis for this aggravating circumstance was a printout from the National Crime Information Center. See id. at 700 n. 7. There was no evidence of a conviction, and Defendant testified that he was neither charged nor disciplined because the cocaine was found in a desk that he shared with another soldier. See id. We explained that the court could not consider the cocaine arrest as criminal conduct:

To the extent that the trial court viewed the prior involvement with cocaine as evidence of criminal history, it was improperly considered under Indiana Code section 35-38-1-7.1(b)(2) (1993). A single arrest does not establish a history of criminal conduct. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.1991). Nonetheless, a prior arrest may be considered under Indiana Code section 35-38-1-7.1(d) (1993) because such a record ‘reveal[s] to the court that subsequent antisocial behavior on the part of the defendant has not been deterred even after having been subject to the police authority of the State.’ Tunstill, 568 N.E.2d at 545. Here, the trial court did not demonstrate that it considered ‘prior involvement with cocaine’ to be evidence that defendant has not been deterred from antisocial behavior. In fact, the trial court did not specify any particular manner in which it considered this evidence beyond a mere recitation of the facts. Therefore, the trial court erroneously cited to defendant’s prior involvement with cocaine as an aggravating factor in this case.

See id. (quotations in original).

B

The trial court’s new sentencing order is an inadequate response to our decision in

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Cite This Page — Counsel Stack

Bluebook (online)
749 N.E.2d 36, 2001 WL 580359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherwood-v-state-ind-2001.