Sullivan v. State

540 N.E.2d 1242, 1989 Ind. LEXIS 221, 1989 WL 80491
CourtIndiana Supreme Court
DecidedJuly 20, 1989
Docket48S00-8711-CR-01021
StatusPublished
Cited by8 cases

This text of 540 N.E.2d 1242 (Sullivan 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
Sullivan v. State, 540 N.E.2d 1242, 1989 Ind. LEXIS 221, 1989 WL 80491 (Ind. 1989).

Opinions

PIVARNIK, Justice.

Defendant-Appellant Sullivan was charged with Murder and Child Molesting and the State had requested the death penalty be imposed. Sullivan was sixteen (16) years old at the time. His victim was a [1243]*1243five year old girl. A plea agreement was reached wherein the State agreed to dismiss the death penalty count and Sullivan agreed to plead guilty to the charges of Murder and Child Molesting, both as Class A felonies. The trial court accepted the plea agreement and sentenced Sullivan to sixty (60) years for murder and fifty (50) years for child molesting, said terms to be served concurrently.

In this direct appeal, Sullivan claims the trial court erred as follows in giving the maximum enhancement for both sentences: 1) consideration of other juvenile acts as aggravating factors; 2) the finding by the trial court as an aggravating factor the risk that Sullivan will commit another crime; and 8) inadequate specifications of factual bases for aggravating and mitigating circumstances.

The facts tended to show that the victim, T. L., was found partially clad, undressed from the waist down, apparently having recently been molested in the vaginal area, and dead from two, or perhaps more, blows to the head. Sullivan admitted the crimes in statements to the police and during different hearings and interviews with probation officers. He stated he, the victim and another child, Dustin Shaw, went into a wooded area near their apartment buildings. Shaw went out of the woods on an alternate route from T. L. and Sullivan. Sullivan tried to experiment sexually with the girl but she soon resisted his advance by crying. Sullivan stated he tried to scare and quiet her with the initial blow from a stick picked up along the hike. She sereamed and Sullivan struck her again. He then pulled her to one side of the area they were in and fled the scene.

The court entered the following judgment and sentence on February 26, 1987:

The defendant having entered a plea of guilty on January 26, 1987 to Count I: Murder and Count II: Child Molesting, Class A Felony and the Court having considered the presentence report and the evidence now accepts the plea of guilty and sentences the defendant as follows: The Court finds in regards to Count I that the presumptive sentence is forty years that can be aggravated up to an additional twenty years and can be reduced by ten years for mitigating circumstances. In regards to Count II the presumptive sentence is thirty years and the Court can aggravate up to twenty additional years and can subtract ten years for mitigating circumstances. In this case the Court finds as aggravating cireumstances that there is a risk the defendant will commit another crime; the nature and circumstances of the crime committed herein and that the particular crime was very serious and heinous; the fact that the victim was five years of age and considered to be physically infirm due to her age [and] the age of the defendant; the fact that the defendant had some delinquent activity; that the defendant is in need of correctional or rehabilitative treatment that can best be served by his commitment to a penal facility; the imposition of a reduced sentence or a suspension of the sentence or imposition of probation would depreciate the seriousness of the crime. Therefore, the Court aggravates the sentence in Count I to sixty (60) years and in Count II to fifty (50) years. The Court finds that the sentences shall be served concurrently and that the defendant shall receive one (1) year and one hundred and fifty-eight (158) days eredit, which shall be considered good time. The Court further recommends that the defendant be placed at the Indiana Youth Center. Defendant is hereby remanded to the custody of the Sheriff of Madison for delivery to the Indiana Department of Correction. On motion of the State of Indiana Count III is hereby ordered dismissed. Costs vs defendant. SO ORDERED THIS 26th day of February, 1987. Costs vs Defendant Judgment (Record, Vol I, pp. 17-18).

I

During the sentencing hearing the court heard evidence regarding Sullivan's juvenile activities. One of the witnesses was T. B., a seven year-old boy who testified regarding an incident where Sullivan had fondled him when he was five years old. The evidence was presented in the form of a [1244]*1244videotaped interview with T. B. made by Detective Dale Koons of the Anderson Police Department. Sullivan argues the boy's story is wholly uncorroborated and inherently incredible and therefore unworthy of belief. The other evidence was a report included in the presentence investigation report which listed Sullivan's juvenile activity in Louisville, Kentucky. These reports included allegations of theft, sodomy, and being beyond parental control. Sullivan testified these charges were disposed of in Kentucky by either dismissal or a finding of not guilty. There was no other evidence concerning the matters. Sullivan complains the trial court appeared to use these juvenile matters as aggravating factors in his sentence.

It is well settled that sentencing is within the discretion of the trial court. Warren v. State (1984), Ind., 470 N.E.2d 342, 346. The trial court is to determine the weight to give the testimony and the credibility to be accorded to the witness giving it. Holsclaw v. State (1979), 270 Ind. 256, 257, 384 N.E.2d 1026, 1028. In Jordan v. State (1987), Ind., 512 N.E.2d 407, 410, this Court held it is proper for a trial court to hear and consider juvenile activity, not as a fact that can be used by a sentencing court to enhance a criminal sentence, but rather to be used as a consideration of prior criminal conduct or history of activity as an aggravating factor. In Evans v. State (1986), Ind., 497 N.E.2d 919, 923, a sentencing judge acted properly when he referred to a juvenile record which established the defendant had a history of criminal conduct and there was a risk that this pattern could continue.

It is apparent the trial court, in sentencing Sullivan, used this evidence as one of the factors in its finding there is a risk that Sullivan will commit another crime. He found as other aggravating circumstances the serious and heinous nature and cireum-stances of the crime committed, the fact the victim was five years of age and considered to be physically infirm due to her age and considering Sullivan's age, and the fact he had a prior record of delinquent activity. Obviously, the trial court used other proper facts and circumstances as aggravating circumstances that support the sentence imposed so that the inclusion of the juvenile factor would be harmless even if it was error. Forrester v. State (1982), Ind., 440 N.E.2d 475, 487; Pavey v. State (1985), Ind.App., 477 N.E.2d 957, 963.

II

Sullivan claims the trial court erred by finding that, as an aggravating circumstance, there is the risk Sullivan will commit another crime, in that such finding is not supported by the evidence.

Sullivan cites no authority for this allegation other than his own observation of the weight and eredibility to be given to the two days of testimony the trial court heard.

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Sullivan v. State
540 N.E.2d 1242 (Indiana Supreme Court, 1989)

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Bluebook (online)
540 N.E.2d 1242, 1989 Ind. LEXIS 221, 1989 WL 80491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-state-ind-1989.