ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steven Carter
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Stephen R. Creason
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
HOWARD SMALLWOOD )
Defendant-Appellant, )
)
v. ) 71S00-0112-CR-653
)
STATE OF INDIANA )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John M. Marnocha, Judge
Cause No. 71D01-0003-CF-146
________________________________________________
On Direct Appeal
August 16, 2002
DICKSON, Justice
The defendant, Howard Smallwood, appeals his conviction for murder and
his sentence of life without parole arising out of the death of Lamarr
Ferguson in South Bend in March 2000.
Facing charges for murder; conspiracy to commit murder, a class A
felony; felony murder; and burglary, a class A felony, along with the
State's request for a sentence of life without parole, Smallwood entered
into a plea agreement on the day before his jury trial was scheduled to
begin. In the agreement, he stated that he was 38 years of age, had
completed schooling through eleventh grade, and "can read, write, and
understand the English language." Appellant's Appendix at 306. Pursuant
to the agreement, he agreed to plead guilty to murder and to stipulate to
the aggravating circumstance charged by the State's request for life
without parole (intentional killing while committing or attempting to
commit a burglary[1]). The agreement provided that the State would dismiss
all other counts in this case, would dismiss all counts in two other
pending cases, and would not file charges related to another separate
incident. Under the agreement, the defendant and the State were free to
argue for a sentence of either life without parole or a term of years.
The trial court conducted guilty plea proceedings the same day,
entered a judgment of conviction for murder, and scheduled further
sentencing proceedings. The defendant subsequently requested leave to
withdraw his guilty plea. Following written submissions and a hearing, the
trial court denied the motion. The court thereafter conducted a sentencing
hearing and issued detailed findings articulating, evaluating, and weighing
the aggravating and mitigating circumstances, and imposing a sentence of
life without parole.
The defendant presents three claims on appeal: 1) he is mentally
retarded and this prevents him from being sentenced to life without parole;
2) the court failed to give weight to the defendant's intoxication as a
mitigating circumstance; and 3) the trial court erred in denying the
defendant's request to withdraw his guilty plea.
Mental Retardation Claim
The defendant first asserts that his mental retardation renders his
sentence unauthorized by statute and manifestly unreasonable. Indiana
statutory law requires the dismissal of a request for the death penalty or
for life without parole upon a determination that the defendant is mentally
retarded. Ind.Code § 35-36-9-6.[2] To exert this provision, a defendant
must file a petition alleging mental retardation not later than twenty days
before the omnibus date. I.C. § 35-36-9-3. Upon receipt of the petition,
the trial court must order an evaluation of the defendant. Id. Further,
an adversarial hearing on the petition must be held at which the defendant
must prove by clear and convincing evidence that he meets the definition of
a mentally retarded individual. I.C. § 35-36-9-4. The trial court must
enter its determination and articulate findings supporting its
determination of the issue not later than ten days before the initial trial
date. I.C. 35-36-9-5.
The defendant did not file a petition to determine mental
retardation. Not until the sentencing hearing did the defense present
evidence that he now contends relates to mental retardation. The defense
called a neuro-psychologist who primarily testified regarding the
psychological condition[3] and motivations of the defendant and his future
dangerousness in light of his age and possible length of incarceration.
This testimony also included his opinion that the defendant had a
substandard IQ, "in the range of 70-75" and that the defendant "had
superficial intelligence but there was not much in substance in terms of
problem solving or coping mechanisms." Appellant's Appendix at 417. The
defendant concedes that he did not follow the statutory procedure for
asserting the mental retardation defense, but argues that the trial court's
sentencing findings[4] indicate that the defendant "would have been
determined to be a mentally retarded individual if this procedure had been
followed." Br. of Appellant at 13.
The statutory procedure governing mental retardation claims was not
employed in this case thus inhibiting the trial court's opportunity to make
an informed and reliable determination regarding the alleged mental
retardation. In addition to not filing a petition alleging mental
retardation, the defense did not assert mental retardation among its
claimed mitigating circumstances at sentencing. Having failed to properly
present this claim at trial, the defendant may not assert it on appeal.
In the alternative, the defendant contends that his sentence is
manifestly unreasonable in light of his mental retardation.[5] Although a
trial court may have acted within its lawful discretion in determining a
sentence, Article 7, § 4 of the Indiana Constitution authorizes independent
appellate review and revision of a sentence imposed by the trial court.
The defendant acknowledges that the character of his offense is
heinous. He and his accomplices broke into a residence seeking to kill a
witness against the defendant's relative in an upcoming trial. Upon
entering, the defendant and a cohort fired five times into a person
sleeping on the couch without confirming the identity of the victim. After
firing two shots the defendant's gun jammed, the other man fired twice, and
then the defendant was able to fire another shot into the victim. In
actuality, the sleeping person was not the intended victim but a twelve-
year-old boy. The defendant has a long history of both juvenile and adult
criminal behavior.
Notwithstanding the nature of the offense, the defendant asserts that
his "character as manifested by his mental retardation renders his sentence
manifestly unreasonable on its face." Br. of Appellant at 14. The defense
of mental retardation must be established by clear and convincing evidence.
Ind.Code § 35-36-9-4(b). The defendant's psychologist did not testify
that, in his opinion, the defendant was mentally retarded. The defendant
asserts that "the trial court found that Smallwood's IQ was in the range of
the mentally retarded." Br. of Appellant at 15. This is incorrect. The
trial court made no such finding. In the absence of evidence establishing
that the defendant was mentally retarded, we decline to evaluate whether
his claim of retardation renders his sentence manifestly unreasonable.
From the evidence presented at sentencing, life imprisonment without parole
is not a manifestly unreasonable sentence for this crime and this
defendant.
Intoxication as a Mitigating Circumstance
The defendant also contends that the trial court failed to accord
weight to the mitigating circumstance that the defendant was intoxicated at
the time of the crime. Sentencing decisions rest within the discretion of
the trial court, and are reviewed on appeal only for an abuse of
discretion. Monegan v. State, 756 N.E.2d 499, 501 (Ind. 2001). A trial
court need not regard or weigh a possible mitigating circumstance the same
as urged by the defendant. Id. at 504.
The trial court's sentencing order expressly addressed the
defendant's claim of intoxication as a mitigating circumstance:
Although the defendant did not testify as to his degree of impairment
or intoxication, if any, the court does note, however, that the
defendant and his co-defendants had been consuming alcohol and cocaine
when this offense took place. In reviewing the evidence presented,
this fact neither rises to a defense nor, given the apparent ease with
which the crime was committed and the fact that the defendant carried
out his intent indicates any level of impaired thinking, beyond that
testified to by Dr. Hudson. Accordingly, the court gives no weight to
this as an aggravating factor.
Appellant's Appendix at 426. The trial court's explanation demonstrates
that this mitigating circumstance was carefully considered. We decline to
find an abuse of discretion in the court's decision not to give weight to
this proposed mitigating circumstance.
Refusal to Allow Withdrawal of Guilty Plea
The defendant's final contention asserts that the trial court erred
in failing to grant his motion to withdraw his guilty plea. Citing
evidence presented during the sentencing hearing regarding his mental
capacity, he argues that the trial court abused its discretion "by failing
to find that allowing Smallwood to withdraw his plea was necessary to
correct the manifest injustice of a mentally retarded defendant entering an
unintelligent plea." Br. of Appellant at 23.
Motions to withdraw guilty pleas are governed by Ind. Code § 35-35-1-
4. After the plea of guilty but before sentencing, a court may grant the
motion for "any fair or just reason." Id. However, the court is required
to grant the motion to prevent "manifest injustice" and is required to deny
the motion when the State would be "substantially prejudiced." Id. The
trial court's decision is reviewed for abuse of discretion. Id. Upon
appeal:
The trial court's ruling on a motion to withdraw a guilty plea arrives
in our Court with a presumption in favor of the ruling. Coomer v.
State, 652 N.E.2d 60, 62 (Ind. 1995). One who appeals an adverse
decision on a motion to withdraw must therefore prove the trial court
abused its discretion by a preponderance of the evidence. Weatherford
v. State, 697 N.E.2d 32, 34 (Ind. 1998). We will not disturb the
court's ruling where it was based on conflicting evidence. Id.
Johnson v. State, 734 N.E.2d 242, 245 (Ind. 2000).
The defendant raised multiple arguments before the trial court in
this motion to withdraw the guilty plea including: the plea was not entered
intelligently; the defendant did not have all his legal papers; the
defendant pleaded guilty to a dismissed count (Count IV);[6] the defendant
was under fear, pressure, and duress; the defendant lied to the court, he
did not understand the theory of transferred intent; and the defendant has
a learning disability and suffers from post traumatic distress disorder.
After a hearing on the issue, the trial court denied the defendant's
request. Significantly, at the time the trial court considered and denied
the defendant's request to withdraw his guilty plea, there had been no
claim of mental retardation, nor had any evidence regarding the defendant's
mental capacity been presented. The only evidence touching on mental
capacity occurred later, during the sentencing hearing.
The trial court did not err in failing to consider the defendant's
alleged mental retardation when ruling on the motion to withdraw the guilty
plea. We find no abuse of discretion in denying the defendant's request to
withdraw his guilty plea.
Conclusion
The defendant's conviction and sentence are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-50-2-9(b)(1).
[2] The pretrial procedure for determination of mental retardation in
capital cases statute only explicitly refers to death penalty cases. It is
clear, however, that when read in conjunction with the sentencing statute,
it applies equally to life without parole cases. Ind. Code § 35-50-2-9(a)
states, "the State may not proceed against a defendant under this section
if a court determines at a pretrial hearing under I.C. 35-36-9 that the
defendant is a mentally retarded individual." See also I.C. § 35-50-2-
3(b)(sentencing statute for murder stating I.C. 35-36-9 applies to life
without parole cases). Further, the State agrees that the pretrial
procedure contained in I.C. 35-36-9 applies to life without parole.
[3] The psychologist agreed that the defendant was "neuro-
psychologically sound" and had "no psychiatric disturbances that would
warrant treatment." Tr. at 202.
[4] In its sentencing order, the trial court acknowledged the specific
information provided in the expert's testimony and concluded that the
testimony
assisted the court, greatly, in understanding the defendant's
psychological condition and his motivations. It is apparent the
defendant acted in accordance with his psychological make-up and the
experiences he had as a child. It does little, however, to mitigate
the defendant's acts in this case. [The psychologist] also noted that
the defendant had no psychological disturbances which warranted
treatment. Accordingly, the court places some, but not significant,
weight on this as a mitigating factor."
Appellant's Appendix at 422.
[5] The defendant highlights Young v. State, 696 N.E.2d 386, 391 (Ind.
1998) as support of his contention. Young, however, involved a widely
different set of circumstances. Young was determined to be a mentally
retarded individual under the statutory procedure, thereby exempting him
from a sentence of life without parole, but then he was given a term of
years sentence that was tantamount to a life sentence. Id. at 392.
[6] Count IV was the burglary on which the request for a sentence of
life without parole in Count V was based. The defendant stipulated to the
truth of the aggravator that the murder was committed during a burglary.