Smith v. State




ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:


SARAH L. NAGY                           KAREN M. FREEMAN-WILSON

Indianapolis, Indiana                   Attorney General of Indiana

                                        NANDITA G. SHEPHERD
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



JEREMY WAYNE SMITH,               )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    17S00-0009-CR-551
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE DEKALB CIRCUIT COURT
                     The Honorable Paul R. Cherry, Judge
                        Cause Nos.  17C01-0003-CF-005
                                        17C01-0003-CF-006
                                        17C01-0003-DF-013



                              ON DIRECT APPEAL


                                June 28, 2002

RUCKER, Justice
      Jeremy Smith pleaded guilty but mentally ill to murder and  guilty  to
arson related to the murder.  In unrelated matters,  he  pleaded  guilty  to
burglary, theft, two counts of harassment, and failure to register as a  sex
offender with local law enforcement.  The trial court  imposed  the  maximum
sentence for each offense and ran them consecutively for  a  total  term  of
one hundred eleven years and three  hundred  sixty  days.   In  this  direct
appeal, Smith challenges his sentence contending the trial court:   (1)  did
not explain its reasons for imposing consecutive  sentences;  (2)  cited  an
erroneous aggravating factor; and (3) failed to consider his mental  illness
as a mitigating factor.  He also complains the trial court was biased.
      We affirm the trial court’s judgment but remand for a  new  sentencing
order on the issue of Smith’s mental illness as a mitigating factor.

                                    Facts


      Although they were not acquainted, Smith and  Shallon  Bush  lived  in
the same apartment complex in Auburn, Indiana.  In the early  morning  hours
of July 19, 1999, Smith walked to Bush’s  apartment  where  she  was  living
with her three-year-old son.  Smith opened  the  door  with  a  key  he  had
stolen from the apartment  manager’s  office,  walked  into  Bush’s  bedroom
where she was sleeping, woke her, and strangled her to  death.   To  conceal
the crime, Smith poured vodka over her body and started a fire.
      Picking a name at random from  a  telephone  directory,  Smith  called
Meghann McAfee during the day on October 4, 1999, and left  an  obscene  and
threatening message on her answering machine.  Later that evening, he  broke
into McAfee’s home and removed several items of personal  property.   A  few
months later, in February 2000, Smith again called McAfee and  left  another
message on the answering machine similar in content to the previous one.
      Smith was eventually arrested and charged with murder and arson  as  a
Class A felony in connection with Bush’s death; and burglary as  a  Class  B
felony, theft as a Class D felony, and two counts of harassment as  Class  B
misdemeanors in connection with his actions concerning McAfee.  He also  was
charged with failure to register as a  Class  D  felony.[1]   Smith  pleaded
guilty to all offenses as charged.  At the time  of  sentencing,  the  trial
court identified several aggravating factors, some  of  which  were  offense
specific.  With respect to the murder, the trial court noted the nature  and
circumstances of the crime:  it occurred in the victim’s home, Smith’s  size
and weight advantage, the crime was committed with the use of a  stolen  key
which demonstrated planning, Smith’s lack of  remorse,  Smith’s  indications
that he would kill again, and the impact of the crime on the victim’s three-
year-old son.  Concerning the burglary and  theft,  the  trial  court  found
they  were  planned  and  noted  the  traumatizing  effect  the  threatening
telephone  calls  had  on  the  victim.   The  trial  court  also  found  as
aggravating  factors  Smith’s  prior  criminal  history,  his  violation  of
probation, and his need for correctional or  rehabilitative  treatment  that
would best be provided  by  a  penal  institution.   Finding  no  mitigating
factors, the trial court sentenced  Smith  to  the  maximum  term  for  each
offense:  sixty-five years for murder, twenty years for arson, twenty  years
for burglary, three years for theft, and one hundred eighty  days  for  each
count  of  harassment.   The  trial  court  ordered  the  sentences  to  run
consecutively for a total  term  of  one  hundred  eleven  years  and  three
hundred sixty days.  This appeal followed.
                                 Discussion
                                     I.
      Conceding the trial court explained its reasons for imposing  enhanced
sentences, Smith complains the trial court erred in failing to explain  also
its reasons for imposing consecutive sentences.   This  argument  fails.   A
trial court is not  obligated  to  identify  the  aggravators  that  support
consecutive sentences separately from the factors that support the  sentence
enhancement.  Blanche v. State, 690 N.E.2d 709, 716  (Ind.  1998).   Rather,
the same factors used to enhance a sentence may also be used  to  justify  a
consecutive sentence.  Miller v. State, 716 N.E.2d  367,  371  (Ind.  1999).
In this case, the trial court relied on the same  factors  declaring  “every
one of those aggravating circumstances is also a  basis  for  me  to  impose
consecutive sentences.”  R. at 547.  We find no error on this issue.
                                     II.
      Smith next contends the trial court erred in citing as an  aggravating
factor the impact that his crime imposed on the murder victim’s  three-year-
old son.  We  must  agree.   As  this  Court  has  previously  noted:  “[w]e
appreciate the terrible loss of a loved one.  But  because  such  impact  on
family  members  accompanies  almost  every  murder,  we   believe   it   is
encompassed within the range of impact which  the  presumptive  sentence  is
designed to punish.”  Bacher v. State, 686  N.E.2d  791,  801  (Ind.  1997).
Although the impact on others  may  qualify  as  an  aggravator  in  certain
cases, “‘the defendant’s actions must have had an impact on  .  .  .  ‘other
persons’ of a destructive nature that is not normally  associated  with  the
commission of the offense in question and this impact  must  be  foreseeable
to the defendant.’”  Id. (quoting Washington v. Johnson, 873 P.2d  514,  525
(Wash. 1994)).  In this case, the trial court did  not  articulate  how  the
impact on Bush’s child was of the type so distinct that  it  raised  to  the
level  of  an  aggravating  factor.   Citing  this  impact  evidence  as  an
aggravating factor was therefore improper.
      However, when the trial court improperly applies  an  aggravator,  but
other valid aggravating circumstances  exist,  a  sentence  enhancement  may
still be upheld.  Gibson v. State, 702 N.E.2d 707, 710 (Ind.  1998).   Here,
the trial court cited  additional  aggravating  circumstances,  which  Smith
does not challenge.  Subject  to  our  discussion  infra  Section  III,  the
additional  aggravators  are  sufficient   to   support   Smith’s   enhanced
sentences.
      In a related argument, Smith contends that in imposing  sentence,  the
trial court erroneously considered “impact  statements”  from  a  number  of
Bush’s relatives and friends.  The record shows  the  trial  court  received
numerous letters from Bush’s friends and family.  R. at 102-15, 119-41, 147-
201.  Some expressed  grief  and  loss,  while  others  recommended  maximum
punishment.  Id.  At the sentencing hearing,  several  of  Bush’s  relatives
testified about the psychological and emotional effects the  murder  had  on
their lives.  Our discussion of Bacher, supra, is equally  applicable  here.
In any event, the record shows the trial court did not cite or refer to  the
testimony of Bush’s relatives as an aggravating  factor.   Smith’s  argument
on this point fails.
                                    III.
      Smith also complains the trial court failed  to  consider  his  mental
illness as a mitigating factor.  The facts are these.  While this  case  was
pending, counsel raised the issue of Smith’s competency to stand trial.   As
a result, the trial court appointed  Dr.  Domingo  Cruz-Diaz  and  Dr.  Mark
Souder to examine Smith for that purpose.  Both  submitted  written  reports
to the trial court concluding that  Smith  was  competent  to  stand  trial.
However, Dr.  Souder  opined  further  that  Smith  suffered  from  paranoid
schizophrenia, depression, antisocial personality  disorder,  and  attention
and impulse control problems.  R. at 230.  At the change  of  plea  hearing,
the trial court accepted the reports as evidence to support Smith’s plea  of
guilty but mentally ill  to  murder.   R.  at  440-41.   At  sentencing,  no
evidence of Smith’s mental illness was introduced.  However, referring to  a
very detailed and thorough  pre-sentence  investigation  report,  the  trial
court discussed Smith’s history of mental illness.  The report included  not
only the written evaluations of the court-appointed psychiatrists  but  also
reports from three different facilities where  Smith  had  been  treated  at
various times since the age of eighteen  for  a  variety  of  mental  health
problems.   R.  at  262-66.   While  imposing  sentence,  the  trial   court
declared:
      I have, in good faith, reviewed the mitigating factors.   They’re  set
      forth in the Indiana statute.  I’ve  reviewed  them  specifically.   I
      have thought in the quiet times when I have  studied  the  report  and
      thought about this case and made notes and considered  what  would  be
      just and fair[;] what are the mitigating circumstances present in  Mr.
      Smith’s favor.  I find there are none.

R. at 547.
      It is true that the trial court is not required to find  the  presence
of mitigating factors; and if the trial court does not  find  the  existence
of a mitigating factor after it has been argued by counsel, then  the  trial
court is not obligated to explain why it has found that the factor does  not
exist.  Fugate v. State, 608 N.E.2d 1370, 1374  (Ind.  1993).   It  is  also
true that the trial court is not required to weigh or credit the  mitigating
evidence the way a defendant suggests it  should  be  credited  or  weighed.
Id.  Further, a guilty but mentally  ill  defendant  “is  not  automatically
entitled  to  any  particular  credit  or  deduction  from   his   otherwise
aggravated sentence[.]”  Archer v. State, 689 N.E.2d 678, 684  (Ind.  1997).
Nonetheless, we have held that in  sentencing  a  guilty  but  mentally  ill
defendant, trial courts “should at  a  minimum  carefully  consider  on  the
record what mitigating weight, if any, to accord to any evidence  of  mental
illness, even though there is no obligation to give the  evidence  the  same
weight the defendant does.”  Weeks v. State, 697 N.E.2d 28, 30 (Ind.  1998).
 As we  have  explained,  there  are  several  factors  that  bear  on  this
determination, including:  (1) the extent of the  defendant’s  inability  to
control his or her behavior due to the disorder or impairment;  (2)  overall
limitations on functioning; (3) the duration of the mental illness; and  (4)
the extent  of  any  nexus  between  the  disorder  or  impairment  and  the
commission of the crime.  Id.; Archer, 689 N.E.2d at 685.  The  factors  are
not exclusive  but  are  among  those  the  trial  court  must  consider  in
determining what, if any, mitigating weight to give to  any  evidence  of  a
defendant’s mental illness after a finding or plea of  guilty  but  mentally
ill.  Here, implicit in the trial court’s  sentencing  order  is  a  finding
that Smith’s mental illness is entitled no mitigating weight.  This  finding
is not necessarily improper.  However, because there is  no  indication  the
trial court reached that conclusion after applying any of the  criteria  set
forth in Weeks and Archer, we must remand this cause for  a  new  sentencing
order.  A new sentencing hearing, however, is  unnecessary.   See  O’Connell
v. State, 742 N.E.2d 943, 952-53 (Ind. 2001) (setting forth  the  options  a
trial court may employ when  a  cause  is  remanded  for  a  new  sentencing
order).
                                     IV.
      For his final allegation of error, Smith contends that statements  the
trial court made  at  the  time  of  sentencing  demonstrate  his  bias  and
prejudice.  Specifically, Smith points to remarks in which the  trial  court
referred to facts allegedly not  supported  by  the  record;  described  the
murder and arson as the “act of an evil, mean, depraved, perverted  animal,”
R. at 544; and made a Biblical reference that  included  the  comment,  “May
the soul of Shallon Bush now rest in peace[,]” R. at 551.  Smith urges  that
we remand this cause so that a different judge can sentence him.
      Merely asserting bias and prejudice does not  make  it  so.   The  law
presumes that a judge is unbiased  and  unprejudiced.   Lee  v.  State,  735
N.E.2d 1169, 1172 (Ind. 2000).  And to rebut that presumption,  a  defendant
must establish from the  judge’s  conduct  actual  bias  or  prejudice  that
places the defendant in jeopardy.  Harvey v.  State,  751  N.E.2d  254,  259
(Ind. Ct. App. 2001); Cook v. State, 612 N.E.2d 1085, 1088  (Ind.  Ct.  App.
1993).  Such bias and prejudice exists only where  there  is  an  undisputed
claim or where the judge expressed an opinion of the controversy over  which
the judge was presiding.  Resnover v. State, 507  N.E.2d  1382,  1391  (Ind.
1987); Harvey, 751 N.E.2d at 259; Cook, 612 N.E.2d at 1088.  The  imposition
of the maximum sentence does not support  a  claim  of  bias.   Radcliff  v.
State, 579 N.E.2d 71, 73 (Ind. 1991).  In this case, Smith has  not  carried
his burden of proof.  Each of the aggravating  circumstances  cited  by  the
trial court was  fully  supported  by  the  record.   As  for  the  Biblical
reference and the comment on the heinous nature of the murder,  we  are  not
persuaded they represent an expression of the trial court’s opinion  on  the
merits of Smith’s sentence.  Smith is not entitled to relief on this  claim.


                                 Conclusion


      This cause is remanded for a new sentencing order consistent with this
opinion.  In all other respects, we affirm the judgment of the trial  court.


DICKSON and SULLIVAN, JJ., concur.

SHEPARD, C.J., dissents with separate opinion.

BOEHM, J., dissents with separate opinion in which SHEPARD, C.J., joins.
SHEPARD, C.J., dissenting.


      Smith has argued that a number of  points  reflecting  on  his  mental
health should have been given mitigating weight by the  trial  judge.   Some
of these proffers,  like  “antisocial  personality  disorder”  and  “impulse
control problems,” are characteristics so commonly associated  with  violent
crimes that I  am  not  surprised  that  Judge  Cherry  did  not  find  them
mitigating.

      Others, like  paranoid  schizophrenia,  stand  on  firmer  ground  and
probably should have been given some weight.

      I vote to affirm, however, because there are some fifteen  aggravating
circumstances found by the trial court in a lengthy and  precise  sentencing
order and not challenged on appeal.  These include a list of prior  felonies
both here and in Ohio, committing the current offenses while  on  probation,
failure to respond to numerous past  efforts  at  counseling  and  treatment
programs, “no remorse whatsoever,” selection of a victim a foot shorter  and
sixty pounds lighter, and a long campaign designed  to  terrify  the  victim
before the crime, to name a few.

      The court’s sentencing order runs to nine pages single-spaced  in  the
appellant’s brief on appeal.  It is both thoughtful and meticulous,  and  it
persuades me that the sentence is appropriate.

      I would affirm rather than remand.


BOEHM, Justice, dissenting.
      In Weeks v. State, 697 N.E.2d 28 (Ind. 1998), we held that  a  finding
by a jury of guilty but  mentally  ill  required  the  sentencing  judge  to
articulate the effect of that finding on the sentence.   In  my  view,  this
requires a determination  whether  the  defendant’s  mental  illness  was  a
mitigating factor  and,  if  so,  what  weight  it  deserves.   The  factors
identified in Archer v. State, 689 N.E.2d 678 (Ind. 1997), may be among  the
relevant considerations in those determinations, but these will  undoubtedly
vary from case to case.
      Here we have a plea of guilty but mentally ill, not a finding  by  the
trier of fact.  Although the trial court dismissed  Smith’s  mental  illness
with minimal discussion and a finding  of  no  mitigating  circumstances,  I
would nevertheless affirm the sentence because I  believe  the  evidence  of
mental illness, which is solely documentary, demonstrates that this case  is
far removed from the facts of Weeks, where the defendant’s bizarre  behavior
over a long period of time was obvious, and the apparently motiveless  crime
undoubtedly supported the jury’s finding of guilty  but  mentally  ill.   In
addition, the detailed severely aggravating facts identified  by  the  trial
court and cited by the Chief  Justice  in  my  view  demonstrate  that  this
sentence should be affirmed for the reasons the Chief Justice gives.
      Finally, I do not agree with the  majority  that  the  impact  on  the
three-year-old son was  an  improper  consideration  in  sentencing.   Smith
lived three doors from Ms. Bush.  Smith was thus on fair notice that he  was
killing the mother of a three year old.  Not every murder deprives  a  child
of its mother, and particularly not at such a tender age.  This murder  thus
was, in terminology sometimes adopted by this court, “worse” than many,  and
I believe the trial court properly took that into account.
      SHEPARD, C.J., concurs.

-----------------------
      [1]  Because of a 1997 conviction for child molesting, Smith qualified
as a “sex and  violent  offender.”   Ind.  Code  §  5-2-12-4(a).   A  person
obtaining that status is required to register  with  local  law  enforcement
authorities.  I.C. § 5-2-12-5.  The knowing or intentional failure to do  so
is a criminal offense.  I.C. § 5-2-12-9.