Attorney for Appellant Attorneys for Appellee
Donald W. Pagos Steve Carter
Michigan City, Indiana Attorney General
of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 46S03-0407-CR-328
Richard L. Francis
Appellant (Defendant below),
v.
State of Indiana
Appellee (Plaintiff
below).
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Appeal from the LaPorte Superior Court, No. 46D01-0208-FA-72
The Honorable Walter P. Chapala, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 46A03-0305-
CR-176
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November 9, 2004
Sullivan, Justice.
Defendant Richard L. Francis was charged with and pled guilty to child
molesting. The sentencing court enhanced the presumptive sentence of 30
years applicable here by an additional 20, for a total sentence of 50
years. Finding that Francis’s guilty plea and other mitigating
circumstances balance the aggravating circumstances, we revise Francis’s
sentence to the presumptive sentence of 30 years.
Background
In August, 2002, Richard Francis, who at the time was 23-years-old,
committed deviate sexual conduct with a child. As part of a plea
agreement, Francis pled guilty to one count of child molesting, a Class A
felony,[1] and agreed to argue sentencing before the LaPorte Superior
Court. Although the plea agreement did not include a specified amount of
jail time, the court was to take Francis’s guilty plea under advisement
when sentencing.
The court, however, sentenced Francis to the maximum 50 years for a
Class A felony—the 30-year presumptive sentence enhanced by 20 years for
aggravating circumstances. A majority of a panel of the Court of Appeals
affirmed the sentence in an unpublished opinion. Francis v. State, No.
46A03-0305-CR-176, slip op. at 6 (Ind. Ct. App. Oct. 15, 2003). Judge
Sullivan dissented. Francis sought and we granted transfer. Francis v.
State, 2004 Ind. LEXIS 649 (Ind. July 23, 2004).
Discussion
Francis argues that his sentence is excessive as a result of the
sentencing court’s failure to consider his guilty plea a mitigating
circumstance. Finding that there were aggravating circumstances, but no
mitigating circumstances, the court sentenced Francis to 20 years more than
the presumptive 30-year sentence, for a total of 50 years in the Indiana
Department of Correction.
The Legislature has prescribed standard or “presumptive” sentences for
each crime, allowing the sentencing court limited discretion to enhance a
sentence to reflect aggravating circumstances or to reduce a sentence to
reflect mitigating circumstances. In this case, the applicable statute
reads, “A person who commits a Class A felony shall be imprisoned for a
fixed term of thirty (30) years, with not more than twenty (20) years added
for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances . . . .” Ind. Code § 35-50-2-4 (2004).
I
If the court relies on aggravating or mitigating circumstances to
deviate from the presumptive sentence, it must (1) identify all significant
mitigating and aggravating circumstances; (2) state the specific reason why
each circumstance has been determined to be mitigating or aggravating; and
(3) articulate the court’s evaluation and balancing of circumstances.
Wooley v. State, 716 N.E.2d 919, 929 (Ind. 1999) (citing Harris v. State,
659 N.E.2d 522, 527-28 (Ind. 1995)). When a sentence more severe than the
presumptive is challenged on appeal, the reviewing court will examine the
record to insure that the sentencing court explained its reasons for
selecting the sentence it imposed. Lander v. State, 762 N.E.2d 1208, 1215
(Ind. 2002).
At Francis’s sentencing proceeding, the court identified two
aggravating circumstances: (1) Francis had a prior criminal history, and
(2) the age of the victim was less than 12-years-old. The court found no
mitigating circumstances. The trial court in this case satisfied its
obligation to explain its reasons for selecting the sentence it imposed.
II
Francis contends that the sentencing court erred when it did not find
that his guilty plea was a mitigating circumstance.[2] Francis notes that
because he pled guilty before his case was even scheduled for trial, his
plea saved the State and the court from expending valuable resources. He
also notes that his plea prevented further family trauma because the victim
did not have to testify.
This Court has recognized before that “a defendant who willingly
enters a plea of guilty has extended a substantial benefit to the state and
deserves to have a substantial benefit extended to him in return.”
Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995) (quoting Williams v.
State, 430 N.E.2d 759, 764 (1982), reh’g denied, 459 U.S. 808 (1982)). A
guilty plea demonstrates a defendant's acceptance of responsibility for the
crime and extends a benefit to the State and to the victim or the victim's
family by avoiding a full-blown trial. Id. See also Sensback v. State,
720 N.E.2d 1160, 1164 (Ind. 1999); Trueblood v. State, 715 N.E.2d 1242,
1257 (Ind. 1999). Thus, a defendant who pleads guilty deserves to have
mitigating weight extended to the guilty plea in return.[3] Scheckel, 655
N.E.2d at 511; Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995). We find
that the court erred in not considering the guilty plea to be a mitigating
circumstance.
III
Where we find an irregularity in the lower court’s sentencing
decision, we have the option to remand to the trial court for a
clarification or new sentencing determination, to affirm the sentence if
the error is harmless, or to reweigh the proper aggravating and mitigating
circumstances independently at the appellate level. Sherwood v. State, 749
N.E.2d 36, 39-40 (Ind. 2001). We elect appellate reweighing here. See
Ind. Const. art. VII, § 4.
For the reasons discussed above, the fact that the defendant pled
guilty is a mitigating circumstance entitled to weight in the high range.
Our reading of the record here indicates that the defendant pled guilty at
an early stage of the proceedings, demonstrated remorse, and apologized for
his actions. These factors increase the weight attributable to this
mitigator.
The record also indicates that defendant himself had been molested as
a child. Because we are provided little information on this factor, we
assign it weight in the low range.
As noted before, the sentencing court identified two aggravating
circumstances: (1) Francis had a prior criminal history, and (2) the age of
the victim was less than 12-years-old. However, the trial court did not
elaborate on either factor.
As to the defendant’s criminal history, the record suggests that it is
minimal. His only prior adult offenses were a public intoxication
violation and a criminal conversion conviction. However, his juvenile
record includes a delinquency adjudication for an offense that would have
constituted child molesting if committed by an adult. We therefore assign
the defendant’s criminal history weight in the low to medium range.
As to the age of the victim being less than 12-years-old, we note that
the charging information used by the State here alleged that the defendant
had molested a child “under twelve (12) years of age.” Appellant’s App. at
5. As this aggravating circumstance does no more than set forth the
allegation of the charging information, we find that it does not support
enhancing the defendant’s sentence. However, the record does show that the
victim was 6-years-old. Although the age of the victim has been taken into
account to some extent by the fact that the offense is a Class A felony,
the young age of the victim is an aggravating circumstance to which we
assign weight in the low to medium range.
Finally, we note Judge Sullivan’s conclusion in dissent in the Court
of Appeals opinion:
The only factor which qualifies the offense to which
[defendant] pleaded guilty as a Class A felony is that [he] was
over the age of twenty-one. See Ind. Code § 35-42-4-3. Were it
otherwise, and notwithstanding the arguable aggravating
circumstances and arguable lack of substantial mitigating
circumstances, the crime would be a Class B felony for which the
maximum sentence would be twenty years. Ind. Code § 35-50-2-5.
For this reason I find the maximum fifty-year sentence
inappropriate and would reduce the sentence to the presumptive
thirty years.
Francis, No. 46A03-0305-CR-176, slip op. at 8 (emphasis omitted).
Because we find the guilty plea to be a weighty mitigating
circumstance, which, with other mitigating circumstances, balances the
aggravating circumstances that the court identified, we conclude that the
presumptive sentence of 30 years is the appropriate sentence in light of
the nature of this offense and the character of this offender. See Ind.
Appellate Rule 7(B).
Conclusion
We reverse Francis’s sentence of 50 years and remand to the sentencing
court with instructions to issue an amended sentencing order and to issue
or make any other documents or docket entries necessary to impose a
sentence of 30 years, without a hearing.
Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., dissents
without opinion.
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[1] Ind. Code § 35-42-4-3(a)(1) (2004).
[2] The State argues that Francis forfeited his opportunity to claim on
appeal that the court should have considered his guilty plea a mitigating
circumstance when he failed to assert this claim at sentencing. To support
this proposition, the State relies upon Spears v. State, 735 N.E.2d 1161,
1167 (Ind. 2000) (“If the defendant does not advance a factor to be
mitigating at sentencing, this Court will presume that the factor is not
significant and the defendant is precluded from advancing it as a
mitigating circumstance for the first time on appeal.”). However, the
defendant in Spears did not plead guilty, and so the mitigating
circumstance at issue in the present case was not the subject of our focus
in Spears. Because a sentencing court is inherently aware of the fact that
a guilty plea is a mitigating circumstance, the language from Spears upon
which the State relies is not applicable.
[3] Of course, the significance of this mitigating factor will vary from
case to case. Where the guilty plea neither demonstrated a defendant's
acceptance of responsibility for the crime nor extended a benefit to the
State or to the victim or the victim’s family by avoiding a full-blown
trial, we concluded that the court did not abuse its discretion in
declining to find the guilty plea a mitigating circumstance. Sensback v.
State, 720 N.E.2d 1160, 1165, 1165 n.4 (Ind. 1999).