Attorney for Appellant
William Daily
Danville, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Christopher LaFuse
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
HOWARD O. HOLLEN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 13S01-0102-CR-107
)
) Court of Appeals No.
) 13A01-0001-CR-6
)
)
)
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable K. Lynn Lopp, Judge
Cause No. 13C01-9809-DF-51
ON PETITION TO TRANSFER
January 23, 2002
SULLIVAN, Justice.
Although the Court of Appeals affirmed Defendant Howard O. Hollen’s
convictions and sentence, the State requests that we disapprove language in
the opinion of Court of Appeals. We agree with the State that a trial
court need not assign specific weight to each aggravating and mitigating
circumstance. But we also agree with the Court of Appeals that such
weighting can assist appellate review where the trial court has improperly
employed one or more aggravating circumstances.
Background
Defendant in this case was convicted of Battery of a Law Enforcement
Officer and Operating a Motor Vehicle While Intoxicated.[1] He raised
three issues on appeal: that he should have been granted a mistrial on
grounds of improper testimony by the arresting officer; that the trial
court committed reversible error by admitting into evidence the arresting
officer’s probable cause affidavit; and that the trial court failed to
consider and balance properly aggravating and mitigating circumstances when
imposing sentence. The Court of Appeals analyzed and rejected each of
these claims. Hollen v. State, 740 N.E.2d 149 (Ind. Ct. App. 2000). We
granted transfer to address the third of these claims.[2] Hollen v. State,
753 N.E.2d 6 (Ind. 2001) (table).
Discussion
In general, the Legislature has prescribed standard sentences for
each crime, allowing the sentencing court limited discretion to enhance
each sentence to reflect aggravating circumstances or reduce the sentence
to reflect mitigating circumstances. The standard sentence for Battery
here was 1-1/2 years which could have been enhanced by up to another 1-1/2
years. Ind. Code § 35-50-2-7 (a) (1998). The standard sentence here for
Operating a Motor Vehicle While Intoxicated was one year. Ind. Code § 35-
50-3-2 (1998).
The trial court sentenced Defendant to two years for Battery and one
year for Operating a Motor Vehicle While Intoxicated, to run concurrently.
That is, the trial court imposed more than the standard sentence for the
Battery conviction. The court supported the sentence with the following
aggravating circumstances:
1. The probability that the Defendant will commit another
crime.
2. The Defendant’s lack of remorse.
3. That Defendant is unlikely to respond to probation.
The trial court also identified as a mitigating circumstance
Defendant’s lack of substantial criminal history.
The Court of Appeals reviewed each of these factors and concluded
that the first and third were valid aggravating circumstances. The Court
of Appeals also concluded that the trial court did not err by failing to
find Defendant’s mental health to be a valid mitigating circumstance. But
the Court of Appeals did find the trial court’s use of Defendant’s
purported lack of remorse to be improper.
We agree with the analysis of the Court of Appeals on each of these
determinations.
After having made these determinations, the Court of Appeals found
itself in the position of having to pass on Defendant’s sentence while
faced with a different constellation of aggravating and mitigating
circumstances than those utilized by the trial court. This prompted Judge
Bailey, writing for the Court of Appeals, to reflect upon the general rule
that a single aggravator may support the full enhancement of the
sentence.[3] Judge Bailey’s reflections provoked a separate opinion from
Judge Mattingly-May, a vigorous transfer petition from the State, and a
grant of transfer from our court.
Here is what Judge Bailey said to provoke this reaction:
Properly understood, the rule stands for the proposition that a trial
court may impose a fully enhanced sentence upon an adequate showing of
a single aggravating factor. The rule allows a trial court to focus
on the factor or factors that truly warrant an enhanced sentence,
without fear that a reviewing court will reverse the court’s sentence
for lack of sufficient aggravation. The rule should not, however,
encourage trial courts imposing enhanced sentences to simply compile a
list of virtually every potentially aggravating factor, secure in the
belief that even if some of the aggravators identified are later found
to be invalid, a higher court will separate the wheat from the chaff
and still uphold an enhanced sentence on the basis of the general rule
that a single aggravator may support an enhanced sentence.
We reiterate that it is the trial court's job to identify valid
aggravating and mitigating factors, explain why they qualify as such,
weigh those factors, and articulate its reasons for imposing its
sentence. When, as here, a trial court identifies a number of
aggravating factors and explains that they support an enhanced
sentence, we must assume that the court considered each factor to have
some aggravating value. Unless the trial court either assigns a
specific weight to each aggravator in terms of the proportion of an
enhancement, or says that any one of the aggravators identified could
individually support the enhancement, we are left to guess at the
respective weight assigned to each factor. Without such guidance from
the trial court, it is difficult, if not logically impossible, to
affirm an enhanced sentence in its totality while at the same time
invalidating a certain proportion of the factors specifically
identified by the trial court as supporting that very enhanced
sentence.
Hollen, 740 N.E.2d at 160-61 (emphasis added).
Judge Mattingly-May’s separate opinion and the State’s petition to
transfer focus on what they term Judge Bailey’s “suggestion that the trial
court is obliged to assign to each aggravating factor a specific
proportional weight.” Id. at 162. They contend that such a requirement is
inconsistent with the broad discretion enjoyed by trial court judges in,
and the complexity of, sentencing. Id.
To the extent that the State requests that we confirm that a trial
court judge is not obligated to assign to each aggravating circumstance a
specific proportional weight, we do so.
At the same time, we are constrained to observe that we think that the
State has focused on that language in Judge Bailey’s opinion to the
exclusion of its context. The opinion reiterated the long-standing rule
that a single aggravating circumstance can be sufficient to sustain a
sentence imposed using additional invalid aggravating circumstances. And
it did not reverse the sentence imposed or even remand for new sentencing.
With some regularity, our court points out that when “a trial court
relies upon aggravating circumstances to enhance the presumptive sentence,
it must identify all significant circumstances, state the specific reasons
why the circumstance is aggravating or mitigating, and articulate the
court’s evaluation and balancing of the circumstances.” Bowles v. State,
737 N.E.2d 1150, 1154 (Ind. 2000) (citing Ind. Code § 35-38-1-3 and Bonds
v. State, 729 N.E.2d 1002, 1005 (Ind. 2000)). Indeed, as this citation
points out, the Legislature requires this of sentencing statements:
“Before sentencing a person for a felony, the court must conduct a hearing
to consider the facts and circumstances relevant to sentencing. ... The
court shall make a record of the hearing, including ... if the court finds
aggravating circumstances or mitigating circumstances, a statement of the
court’s reasons for selecting the sentence it imposes.” Ind. Code § 35-38-
1-3 (3) (1998).
We do not read Judge Bailey's opinion as mandating additional
requirements for the required sentencing statement. Rather, we read it as
a rather straightforward expression of the difficulty a court on appeal has
in reviewing an enhanced sentence where one or more aggravating
circumstances have been improperly employed.[4]
It is no more than logic to say that, if one or more aggravating
circumstances cited by the trial court are invalid, the court on appeal
must decide whether the remaining circumstance or circumstances are
sufficient to support the sentence imposed. Judge Bailey’s opinion simply
says that that determination is most easily made if the trial court has
indicated the relative weight it assigned to the aggravators it listed in
its sentencing statement. That Judge Bailey’s opinion says no more than
that is made clear by the approach the opinion takes following the language
with which Judge Mattingly-May and the State took exception. The opinion
goes on to conclude that, given the relative insignificance of the invalid
aggravator, the absence of any new mitigators, and the minimal enhancement
of the sentence imposed, the trial court’s sentencing decision would have
been the same without the invalid aggravator. Hollen, 740 N.E.2d at 161.
We frequently take the same approach when we encounter an invalid
aggravating circumstance, see, e.g., McCann v. State, 749 N.E.2d 1116, 1121
(Ind. 2001); Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001); Hollins v.
State, 679 N.E.2d 1305, 1308 (Ind. 1997); Brown v. State, 667 N.E.2d 1115,
1117 (Ind. 1996), although reweighing pursuant to our review and revise
power, Long v. State, 743 N.E.2d 253, 262 (Ind. 2001), or remanding for new
sentencing statement, Wooley v. State, 716 N.E.2d 919, 933 (Ind. 1999),
will sometimes be required.
In summary, we agree with Judge Mattingly-May and the State that a
trial court judge is not required to assign in a statement accompanying an
enhanced sentence specific weight to each aggravating and mitigating
circumstance. But a reasonably detailed sentencing statement is required
and assigning relative weights facilitates appellate review in those
situations where one or more invalid aggravating circumstances have been
utilized.
Conclusion
Having previously granted transfer, we summarily adopt the opinion of
the Court of Appeals and affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code §35-42-2-1(2)(a) (1998); Ind. Code §9-30-5-2(b) (1998).
[2] We summarily affirm the opinion of the Court of Appeals on the issues
relating to the arresting officer's testimony and probable cause affidavit.
Ind. Appellate Rule 58(A) (formerly App. R. 11(B)(3)).
[3] Judge Baker joined Judge Bailey’s opinion.
[4] With somewhat greater frequency than we would like, we review claims
for sentencing relief where the trial court has used improper aggravating
circumstances to enhance a sentence. This is particularly the case when
the sentencing court engages in “perfunctory recitation” of two statutory
aggravating circumstances: “Imposition of a reduced sentence or suspension
of the sentence and imposition of probation would depreciate the
seriousness of the crime;” and “The person is in need of correctional or
rehabilitative treatment that can best be provided by commitment of the
person to a penal facility.” See Berry v. State, 703 N.E.2d 154, 158 (Ind.
1998) (need of correctional treatment); Ector v. State, 639 N.E.2d 1014,
1015-16 (Ind. 1994) (depreciate seriousness); Evans v. State, 497 N.E.2d
919, 923 (Ind. 1986) (depreciate seriousness).