ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Steve Carter
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 20S03-0706-CR-252
AARON D. MCDONALD,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Elkhart Circuit Court, No. 20C01-0508-MR-151
The Honorable Terry C. Shewmaker, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 20A03-0605-CR-229
_________________________________
June 26, 2007
Rucker, Justice.
Background
Along with seventeen-year-old Hanna Stone and her eighteen-year-old boyfriend Spenser
Krempetz, seventeen-year-old Aaron McDonald concocted a plan to rob and kill Stone’s mother,
Barbara Keim. Apparently Stone, who hatched this idea, was irritated that her mother did not
approve of her relationship with Krempetz. McDonald was promised $400 for his efforts. The
trio executed the plan, which resulted in accosting Keim in her home, binding and gagging her,
driving Keim to a bank ATM from which she was forced to withdraw $200 – the maximum
amount the machine allowed – and then driving Keim to a corn field where she was fatally shot
in the head. The State charged McDonald with murder, a felony, conspiracy to commit murder,
a Class A felony, and criminal confinement, as a Class B felony. The State also filed a request
for Life Imprisonment Without Parole.
Under terms of a plea agreement McDonald pleaded guilty to all charges and in exchange
the State dismissed the LWOP request. The plea agreement also provided that sentencing “shall
be at the discretion of the Court” and the sentences would run concurrently. App. at 14-15.
At the sentencing hearing, after listening to testimony of witnesses and entertaining
arguments of counsel, the trial court found the following aggravating factors: (1) McDonald
committed multiple crimes; (2) the crimes were committed solely for financial gain; (3)
McDonald has a history of juvenile arrests and delinquency adjudications; (4) McDonald smoked
marijuana since the age of six or seven, used cocaine and marijuana around the time these
offenses were committed, and handled a loaded firearm while under the influence of drugs; (5)
McDonald participated in both the murder and the conspiracy to commit murder; and (6)
McDonald considered himself a victim in this incident. App. at 39-40. The trial court found the
following mitigating factors: (1) McDonald was a minor at the time of the crimes; (2) McDonald
cooperated with the State in recovering Keim’s body; (3) McDonald suffered from drug and
alcohol addictions; and (4) McDonald expressed remorse which was tempered by his claim of
being a victim. Id. at 40-41. Concluding that the aggravating factors outweighed the mitigating
factors the trial court sentenced McDonald to a term of sixty-two years for the murder
conviction, which was seven years above the advisory term. See Ind. Code § 35-50-2-3. The
2
trial court imposed the advisory sentences of thirty years and ten years respectively for the Class
A felony conspiracy conviction and the Class B felony criminal confinement conviction.
Pursuant to the terms of the plea agreement the trial court ordered the sentences to be served
concurrently with the sentence for murder for a total executed term of sixty-two years.
McDonald appealed arguing among other things 1 that the trial court used “improper
aggravators” to sentence him. Appellant’s Br. at 12. More specifically McDonald argued that
by referring to multiple crimes and by relying on his participation in the conspiracy to commit
murder, the trial court improperly used as aggravating factors the material elements of the
murder offense. McDonald also complained that the trial court improperly relied upon his
juvenile history as an aggravating factor. The Court of Appeals affirmed the judgment of the
trial court. In doing so the court declined to address McDonald’s argument about alleged trial
court error in the finding of aggravating factors. Noting that it is “divided on whether it is
required to review aggravators and mitigators found or not found by the trial court” the Court of
Appeals declared, “[w]e await our Supreme Court’s guidance on whether a defendant may
appeal a trial court’s finding of aggravators and mitigators for a sentence within the statutory
range, and until then, we will assume it unnecessary to assess the trial court’s findings.”
McDonald v. State, 861 N.E.2d 1255, 1258-59 (Ind. Ct. App. 2007). Although we now grant
transfer, except as otherwise provided below we summarily affirm the Court of Appeals’
opinion. See Ind. Appellate Rule 58(A)(2).
Discussion
In an opinion handed down today we noted that in the aftermath of the 2005 amendments
to Indiana’s criminal sentencing statutes, there has been a lack of consensus on the Court of
Appeals on whether and to what extent trial judges are now required to make sentencing
statements and whether any such statements must include findings of aggravating and mitigating
1
As rephrased McDonald raised the following issues: (1) did the trial court abuse its discretion by
considering improper aggravating factors; (2) did the trial court commit fundamental error by refusing to
recuse itself at the sentencing hearing because the trial court knew on a professional basis two of the
State’s witnesses; and (3) was McDonald’s sentence inappropriate in light of the nature of the offense and
character of the offender.
3
factors. A closely related issue is the scope of appellate review. Addressing these concerns we
declared:
[C]onstruing what we believe is a legislative intent to retain the traditional
significance of sentencing statements we conclude that under the new statutory
regime Indiana trial courts are required to enter sentencing statements whenever
imposing sentence for a felony offense. In order to facilitate its underlying goals,
the statement must include a reasonably detailed recitation of the trial court’s
reasons for imposing a particular sentence. If the recitation includes a finding of
aggravating or mitigating circumstances, then the statement must identify all
significant mitigating and aggravating circumstances and explain why each
circumstance has been determined to be mitigating or aggravating.
Anglemyer v. State, No. 43S05-0606-CR-230, ___N.E.2d___, ___, slip op. at 9 (Ind. June 26,
2007) (internal citation omitted). We noted that the standard of appellate review continues to be
abuse of discretion. We then suggested a few ways in which a trial court may overstep its
bounds under the new statutory regime:
One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing
statement that explains reasons for imposing a sentence – including a finding of
aggravating and mitigating factors if any – but the record does not support the
reasons, or the sentencing statement omits reasons that are clearly supported by
the record and advanced for consideration, or the reasons given are improper as a
matter of law.
Id. at 10.
In this case, explaining its reason for the sentence imposed, the trial court entered a five-
page written statement, App. at 39-43, in addition to an oral statement that consumes nine pages
of transcript. Tr. at 109-18. Taken together the statements are meticulously detailed, include the
finding of aggravating and mitigating factors – all of which are supported by the record – and
explain why each factor is considered aggravating or mitigating. 2
2
The trial judge correctly observed, “the Court is free to impose any sentence within the range provided
by law without regard to aggravating and mitigating circumstances.” Tr. at 109. However the trial judge
went on to say, “In spite of the fact, Mr. McDonald, that I’m not required to do so, I am going to analyze
this case involving aggravating and mitigating circumstances for two reasons. One I think it’s an
appropriate thing to do; and two, is both of your counsel and the counsel for the state have analyzed it in
that realm, and I think they are correct in doing so . . . .” Id. at 110. We commend Judge Shewmaker for
his thoughtful assessment.
4
We make the following observations about McDonald’s claim that the trial court relied
upon improper aggravating factors. Under the amended regime a trial court may impose “any
sentence” the statute authorizes and the Constitution permits, “regardless of the presence or
absence of aggravating circumstances or mitigating circumstances.” I.C. § 35-38-1-7.1(d).
Where, as here, the trial court’s reason for imposing sentence includes a finding of aggravating
and mitigating factors, they must be supported by the record and consistent with what our courts
have traditionally deemed as either aggravators or mitigators. If the factors are not supported by
the record or have been previously determined to be improper, then “remand for resentencing
may be the appropriate remedy if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy support in the record.”
Anglemyer, ___ N.E.2d at ___, slip op. at 10.
Among the factors the trial court here found to be aggravating were: McDonald
committed multiple crimes, McDonald participated in both the murder and the conspiracy to
commit murder, and McDonald has a history of juvenile arrests and delinquency adjudications.
According to McDonald each of these factors is improper. He is wrong. They are not.
The law is settled that the fact of multiple crimes is a valid aggravating factor. O’Connell
v. State, 742 N.E.2d 943, 952 (Ind. 2001); Noojin v. State, 730 N.E.2d 672, 679 (Ind. 2000).
And the fact that a death has occurred as a result of a conspiracy to commit murder is also a valid
aggravating factor. See Smith v. State, 655 N.E.2d 532, 542 (Ind. Ct. App. 1995). We have also
determined that juvenile adjudications may be used to enhance a defendant’s sentence. Haas v.
State, 849 N.E.2d 550, 555 (Ind. 2006); Ryle v. State, 842 N.E.2d 320, 321-23 (Ind. 2005). The
trial court thus committed no error.
In any event, even if the trial court had erred in identifying the foregoing factors as
aggravators, McDonald would not be entitled to remand for resentencing. This is so because
McDonald does not challenge the remaining aggravating factors. And in imposing sentence the
trial court declared, “any one of the aggravating circumstances taken alone or in conjunction with
others substantially outweigh all of the mitigating circumstances considered as a whole.” App. at
5
41. In essence the record is clear that the trial court would have imposed the same sentence
without regard to the challenged aggravators.
Under the circumstances the sole ground upon which McDonald can successfully proceed
in challenging the length of his sentence is that it is inappropriate in light of the nature of the
offense and character of the offender. App. R. 7(B). He made this claim before the Court of
Appeals and was denied relief. As indicated earlier we summarily affirm the Court of Appeals
on this point.
Conclusion
The judgment of the trial court is affirmed.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
6