concurring and dissenting.
1.C. 35-38-1-7 provides that the fact that a convicted criminal defendant "... has no history of delinquency or criminal activity, ..." is a factor which the "... court may consider ..." as a mitigating circumstance. This latter language cannot be considered as permitting a sentencing court to arbitrarily choose to give no consideration at all to factors identified in the statute as the sort which can have mitigating value in the sentencing process. Indeed to accord the statutory language that meaning would be to render appellate oversight of the sentencing process impossible contrary, to the spirit of Article 7, Section 4 of the Indiana Constitution and the judgment of this court upon which our Rules For The Appellate Review of Sentences is based.
In Mullens v. State (1983), Ind., 456 N.E.2d 411, we expressed the view that a sentencing court may be deemed on appeal to have satisfied the commands of the statute governing felony sentencing if it indicates on the record which of the mitigating factors it found germain in sentencing. Here, the sentencing court did not place an indication on the record that it regarded the fact that appellant had no history of criminal activity germain as a mitigating factor.
My vote in this case is to affirm the conviction, but to remand for the imposition of the standard sentence or for a new sentencing hearing.
DICKSON, J., concurs.