ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Steven Carter
Lawrenceburg, Indiana Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
MARK PICKENS, )
Appellant (Defendant Below), )
)
v. ) No. 69S00-0012-CR-815
)
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
________________________________________________
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl Taul, Judge
Cause No. 69C01-9907-CF-16
________________________________________________
On Direct Appeal
May 10, 2002
DICKSON, Justice
The defendant, Mark Pickens, pled guilty to murder[1] and now appeals
his sixty-year sentence, alleging the trial court relied on improper
aggravators in enhancing the presumptive sentence by five years. We have
jurisdiction pursuant to former Indiana Appellate Rule 4(A)(7),[2] as the
defendant's appeal was initiated by praecipe on November 1, 2000, and
affirm the sentence.
The defendant argues that only three of the trial court's eight
enumerated aggravators listed in the sentencing statement are proper, and
if only the three proper aggravators are weighed against the three
mitigating factors it is "not clear that the trial court would . . . still
come up with a sixty year sentence in this case." Br. of Appellant Mark
Pickens at 10. In general, sentencing determinations are within the trial
court's discretion and are governed by Indiana Code § 35-38-1-7.1. See
Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999); Harris v. State, 659 N.E.2d
522, 527 (Ind. 1995). We review trial court sentencing decisions only for
abuse of discretion, including a trial court's decision to increase or
decrease the presumptive sentence because of aggravating or mitigating
circumstances and to run the sentences concurrently or consecutively. See
Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997); Morgan v. State, 675
N.E.2d 1067, 1072 (Ind. 1996); Smith v. State, 675 N.E.2d 693, 697 (Ind.
1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).
In pronouncing the sentence the trial court stated:
The Court has reviewed the Pre-Sentence Investigation and Report as
well as the supplement to that Pre-Sentence Investigation and Report.
The court has considered the evidence presented here in open Court,
the arguments of counsel, and has considered the mandatory, the
factors made mandatory by statute. The risk that the Defendant will
commit another crime that's always up in the air. I do consider
however that these circumstances are unlikely to recur. The nature
and circumstances of the crime committed certainly he has obtained
access to the victim by deceit. He violated the restraining order no
less than three times, once on the day of the homicide, once on June
4th and once on May 30th which the officer responding to the call for
violation of that restraining order found him to be intoxicated and
resulted in his arrest for Operating a Vehicle While Intoxicated. So
this was not a . . . I guess it indicates to me a disregard for the
law a disregard for the authority of the court. And in addition to
being an aggravating factor I think also indicates or is an indication
of Defendant's character. Prior criminal record there is no
conviction for any offense, but as I mentioned with respect to his
character there is the arrest for Operating While Intoxicated, there
are the violations of the restraining order, there is the admitted
marijuana use which is illegal and again indicates a disrespect for
the law. The court considers the aggravating factors as follows: the
violation of the restraining order, the obtaining of access to the
victim by deceit; the nature and circumstances of the offense; the
abuse of the victim for a period of time prior to the offense; having
left the victim after having shot her; as the Prosecuting Attorney
mentioned five separate shots with a shotgun at close range, two while
she was lying on the ground wounded the Court will consider as an
aggravating factor. As mitigating factors the Defendant has entered a
voluntary plea of guilty to the charge. That he has led a law abiding
life for a substantial period of time not having any convictions of
crime. As I mentioned, circumstances unlikely to recur. I have
reason to doubt however that he is likely to respond affirmatively to
short-term imprisonment and I also doubt the sincerity of the
expressed remorse. Mr. Pickens throughout these proceedings has given
me the impression of one who is by proclaiming his remorse attempting
to avoid the consequences of his actions rather than expressing true
remorse for what he has done. Accordingly, I will adopt the
recommendation of the probation department. Sentence the Defendant to
sixty years at the Indiana Department of Correction. Aggravating the
basic sentence of fifty-five years by five years. [I] am considering
the mitigating factors in not aggravating it to the full sixty-five.
Record at 292-94. The Sentencing Order listed the following aggravators:
1. Defendant has violated restraining order involving the
victim on at least three occasions;
2. Imposition of a reduced sentence or suspension of the
sentence would depreciate the seriousness of the crime;
3. Nature and circumstances of the crime committed
specifically firing five shots into the victim, two of which were
while the victim was lying on the ground;
4. Defendant's character exhibits a disregard for the law and
the authority of the Court by violation of restraining order,
ingestion of marijuana and his arrest for Operating a Vehicle While
Intoxicated;
5. Defendant's prior abuse of the victim;
6. Defendant obtained access to the victim by deceit;
7. Defendant does not exhibit genuine remorse for the crime
committed;
8. The statement of the victim's family.
Record at 123-24.
We agree with the defendant's first contention that the trial court
improperly considered that the imposition of a reduced sentence or
suspension of the sentence would depreciate the seriousness of the crime as
an aggravating factor. This factor may be considered only to support the
refusal to impose a sentence less than the presumptive. Hollins v. State,
679 N.E.2d 1305, 1308 (Ind. 1997). There is nothing in the record that
indicates the court was considering less than the presumptive sentence.
The consideration of this aggravator was incorrect.
The defendant next argues that the trial court improperly considered
the fact that the defendant violated a restraining order as the basis for
both its first and fourth enumerated aggravators. Indiana Code § 35-38-1-
7.1 lists the mandatory and nonmandatory factors for courts to consider in
determining a sentence. Of the mandatory factors, two that the trial court
is to consider are whether the defendant violated a protective order,
Ind.Code § 35-38-1-7.1(a)(5), and the defendant's character, Ind.Code § 35-
38-1-7.1(a)(3)(b). The court properly considered the violation of the
restraining order as a factual aggravator and also properly considered it
in determining defendant's character. We find no error here.
The defendant contends that the trial court improperly considered his
admitted marijuana use and arrest for operating a vehicle while intoxicated
(OWI), as they are not "sufficient to show that [he] has a criminal record
justifying enhancement of [his] sentence." Br. of Appellant Mark Pickens.
One or more arrests, standing alone, do not establish the "history of
criminal or delinquent activity" aggravator to enhance a sentence. See
Ind.Code § 35-38-1-7.1(b)(2); Sherwood v. State, 702 N.E.2d 694, 700 (Ind.
1998); Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991). "While a record
of arrests does not establish the historical fact of prior criminal
behavior, such a record does reveal to the court that subsequent antisocial
behavior on the part of the defendant has not been deterred even after
having been subject to the police authority of the State and made aware of
its oversight activities of its citizens." Tunstill, 568 N.E.2d at 545.
Indiana Code § 35-38-1-7.1(d) "gives a sentencing court the flexibility to
consider any factor which reflects on the defendant's character, good or
bad, in addition to those expressly set out in the rest of the statute."
Id. Furthermore, under Indiana Code § 35-38-1-7.1(a)(3)(B), the court may
consider arrest records and admissions of illegal conduct as they reflect
on the defendant's character. The trial court did not act improperly in
considering the defendant's arrest for OWI and his admitted marijuana use
as relevant to the defendant's character.
The defendant asserts that the trial court's consideration of the
defendant's prior abuse of the victim is improper, as this finding is not
supported by the record. The defendant maintains that the only evidence
presented that the defendant abused the victim was the testimony of the
victim's family. When determining the proper sentence to be imposed, the
rules of evidence, other than those concerning matters of privilege, do not
apply. Ind.Evidence Rule 101(c)(2); see also Jackson v. State, 697 N.E.2d
53, 55 (Ind.1998). At sentencing the evidence is not confined to the
narrow issue of guilt, but is to determine the type and extent of
punishment. Thomas v. State, 562 N.E.2d 43, 47 (Ind. Ct. App.1990). While
a sentence may not be based upon materially false information or
assumptions, the defendant here testified at his sentencing hearing and had
the opportunity and did question the family members on their accusations of
abuse. The trial court's conclusion that the defendant abused the victim
prior to the crime is not clearly erroneous. We find no error.
The defendant next takes issue with the trial court's assessment that
the defendant did not exhibit genuine remorse for the crime committed. The
defendant claims that the record does not support the trial court's
assessment and references his testimony that he was sorry for the tragedy,
that he had cried over the tragedy, and that he had pled guilty in part to
spare the victim's family from the ordeal of a trial.
In determining that the defendant's remorse was insincere, the court
acknowledged that the defendant had professed remorse. However, the court
concluded that the proclaimed remorse was an attempt to avoid consequences
rather than a true expression. We find the court's determination to be
similar to a determination of credibility. See Herrera v. State, 679
N.E.2d 1322, 1327 (Ind. 1997). Without evidence of some impermissible
consideration by the court, we accept its determination of credibility. We
find no impermissible considerations and thus no error.
The defendant's final argument is that the court failed to explain
the reasons for its determination that the statements of the victim's
family were aggravating. Because the terrible loss that accompanies the
loss of a family member accompanies almost every murder, this impact on the
family 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). The impact on others may qualify as an aggravator but the
defendant's actions must have had an impact on other persons of a
destructive nature not normally associated with the commission of the
offense in question and must be foreseeable to the defendant. Id. The
trial court did not delineate what impact it was considering that would not
normally be associated with the loss of the victim's life. This aggravator
was improperly considered.
Excluding the challenged aggravating circumstances based on victim
impact and that a reduced sentence would depreciate the seriousness of the
crime, multiple aggravating circumstances nevertheless remain. Even when a
trial court improperly applies an aggravator, a sentence enhancement may be
upheld if other valid aggravators exist. Garrett v. State, 714 N.E.2d 618,
623 (Ind.1999). "[W]e will remand for resentencing if we cannot say with
confidence that the trial court would have imposed the same sentence if it
considered the proper aggravating and mitigating circumstances." McCann v.
State, 749 N.E.2d 1116, 1121 (Ind. 2001). Excluding the two improper
aggravating circumstances, six aggravating circumstances remain to weigh
against three mitigating circumstances. As seen by the trial court's oral
remarks at sentencing, the court relied mainly on the six proper
aggravating circumstances in enhancing the defendant's sentence. Given the
trial court's oral remarks at sentencing and the weight of the aggravating
factors remaining, our confidence in the sentence is not diminished by the
removal of the two improper aggravators. The sentence is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind.Code § 35-42-1-1.
[2] For appeals initiated after January 1, 2001, the Court's
jurisdiction is defined in App.Rule 4.