ATTORNEY FOR APPELLANT
Amy L. Dell
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
MARIO McCANN, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S05-0104-CR-209
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A05-0002-CR-43
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9708-CF-127103
__________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________
June 20, 2001
BOEHM, Justice.
We hold that the pregnancy of a victim, like any other circumstance
that may extend the harm inflicted by a crime, may be an aggravating
circumstance in sentencing whether or not the perpetrator is aware that the
victim is pregnant.
Factual and Procedural Background
On August 2, 1997, Mario McCann visited A.L. and Anthony Dozier at
their home. After McCann left, A.L. went upstairs, fell asleep, and awoke
to find McCann in her bedroom. McCann told A.L. he had a gun and would use
it if she did not remain silent. He attempted to pull off her bedcovers,
touched her breasts, and then told her, “shut up, it wouldn’t take very
long, and then he’d leave [A.L.] alone.” At that point, Dozier entered the
bedroom. A fight ensued and McCann shot Dozier in the chest and fled
through the bedroom window. Both A.L. and Dozier identified McCann from a
thirty-two person photo array. McCann was arrested and charged with
attempted murder, burglary, and attempted rape.
McCann was found guilty on all charges and sentenced to fifty years
for attempted murder and a consecutive sentence of fifty years for
burglary. A concurrent sentence of fifty years was imposed for attempted
rape. On direct appeal, he contended that: (1) the photo array and in-
court identification were unduly suggestive; (2) the State committed
prosecutorial misconduct; (3) the trial court gave an erroneous instruction
on attempted rape; and (4) the trial court erred in sentencing him to
maximum, consecutive sentences for his crimes. The Court of Appeals
affirmed his convictions, but remanded to the trial court for resentencing.
McCann v. State, 742 N.E.2d 998 (Ind. Ct. App. 2001). We granted transfer
to address the sentencing issue.
McCann challenges his sentence as “excessive and manifestly
unreasonable.” He raises a number of statutory issues and also contends
that the sentence was manifestly unreasonable under Indiana Appellate Rule
7(B). As this Court has previously noted, “These are two separate
inquiries reviewed under different standards.” Noojin v. State, 730 N.E.2d
672, 678 (Ind. 2000); accord Hackett v. State, 716 N.E.2d 1273, 1276 n.1
(Ind. 1999).
I. Sentencing Error
As procedural error, McCann contends that: (1) the trial court
considered improper aggravating circumstances; (2) the trial court failed
to consider mitigating circumstances clearly supported by the record; and
(3) the trial court did not balance the aggravating and mitigating
circumstances. The trial court found four aggravating circumstances: (1)
McCann’s prior criminal history, (2) prior attempts to rehabilitate were
unsuccessful, (3) the injuries to Dozier resulted in permanent impairment,
and (4) the nature and circumstances of the crime including that A.L. was
pregnant at the time of the attack and that the crimes involved multiple
victims. The trial court found no mitigating circumstances and then
imposed maximum sentences on all three counts, two of which it ordered to
be served consecutively.
On direct appeal, the Court of Appeals determined that the
“rehabilitation” and “nature and circumstances” aggravating factors were
improperly considered, and that McCann’s claimed mitigating
circumstances—his abusive childhood and the hardship that would result to
his child from his incarceration—were not required to be considered as
mitigating circumstances. The case was remanded to the trial court to
balance the two remaining aggravating circumstances and resentence McCann.
McCann, 742 N.E.2d at 1007. Judge Vaidik dissented, concluding that the
“nature and circumstances” aggravating factor, specifically the victim’s
pregnancy, was properly considered by the trial court. Id. at 1009. She
also disagreed with the majority’s decision to remand the case. She took
the view that because a single aggravating circumstance is enough to
support enhanced and consecutive sentences, and there were three valid
aggravating circumstances in this case, the sentence should be affirmed.
In general, sentencing determinations are within the trial court’s
discretion and are governed by Indiana Code section 35-38-1-7.1. Harris v.
State, 659 N.E.2d 522, 527 (Ind. 1995). If a trial court relies on
aggravating or mitigating circumstances to enhance or reduce the
presumptive sentence, it must: (1) identify all significant mitigating and
aggravating circumstances, (2) state the specific reason why each
circumstance is determined to be mitigating or aggravating, and (3)
articulate the court’s evaluation and balancing of the identified
circumstances. Id. at 527-28.
First, McCann challenges the trial court’s finding of aggravating
circumstances. We agree with the Court of Appeals that both McCann’s
criminal history and Dozier’s permanent impairment[1] were proper
aggravators. McCann’s criminal history is a statutory aggravating
circumstance and was properly considered. Ind. Code § 35-38-1-7.1(b)(2)
(1998). The serious nature of a victim’s injuries is also a proper
aggravator. Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990); Lang v.
State, 461 N.E.2d 1110, 1113 (Ind. 1984).
The trial court also found “that prior attempts to rehabilitate the
defendant have been unsuccessful.” It is not entirely clear whether this
is simply a restatement of the fact that McCann had a criminal record, or
was a reference to the statutory aggravating circumstance that the
defendant is “in need of correctional or rehabilitative treatment that can
best be provided by commitment of the person to a penal facility.” I.C. §
35-38-1-7.1(b)(3). If the former, it is cumulative and, if the latter, we
agree with the Court of Appeals that, because the trial court failed to
explain why incarceration beyond the presumptive sentence was necessary, it
improperly considered prior attempts at rehabilitation as an aggravating
circumstance.
We disagree with the Court of Appeals that the trial court’s
consideration of the nature and circumstances of the crime was improper.
The Court of Appeals took the view that this was an improper aggravating
circumstance for two reasons. First, it relied on elements of the offense
to enhance the sentence. Second, the Court of Appeals held that A.L.’s
pregnancy, because it was “a fact apparently unknown to McCann,” was not a
proper aggravating circumstance.
Generally, the “nature and circumstances” of a crime is a proper
aggravating circumstance. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999).
Even if the trial court relied on an improper factor under this aggravating
circumstance, the sentence may be upheld so long as “[t]he remaining
components of that aggravator were proper.” Angleton v. State, 714 N.E.2d
156, 160 (Ind. 1999).
Under “nature and circumstances,” the trial court stated, “the facts
of this case are particularly aggravating. The case involves a home
invasion of a residence for the purpose of committing the crime of rape.
That the defendant attempted the rape of [A.L.] in this matter while she
was pregnant. And that these offenses or this series of acts involves
multiple victims.” The Court of Appeals was correct that the trial court
may not use “a factor constituting a material element of an offense as an
aggravating circumstance.” Spears v. State, 735 N.E.2d 1161, 1167 (Ind.
2000). However, in this case, in addition to elements of the burglary
offense, the trial court relied on the fact that there were multiple
victims and on A.L.’s pregnancy. Injury to multiple victims has been cited
several times by this Court as supporting enhanced and consecutive
sentences. Walton v. State, 650 N.E.2d 1134, 1137 (Ind. 1995) (listing
multiple killings as a “non-statutory aggravating circumstance”); cf. Tobar
v. State, 740 N.E.2d 109, 113 (Ind. 2000); Noojin v. State, 730 N.E.2d 672,
679 (Ind. 2000).
The Court of Appeals also found erroneous the trial court’s finding
that the victim’s pregnancy was an aggravating circumstance. We agree with
Judge Vaidik that pregnancy is similar to the infirmity or age of the
victim in that the defendant’s knowledge of these circumstances is not
necessary for them to qualify as aggravating. See Stevens v. State, 691
N.E.2d 412, 431-33 (Ind. 1997). To be sure, knowledge of the victim’s
vulnerability adds to the culpability of the perpetrator, but aggravating
circumstances turn on the consequences to the victim as well as the
culpability of the defendant. Id. This understanding of aggravating
circumstances comports with the Black’s Law Dictionary definition of
aggravation: “[a]ny circumstance attending the commission of a crime . . .
which increases its guilt or enormity or adds to its injurious consequences
. . . .” Black’s Law Dictionary 60 (5th ed. 1979).
McCann also challenges the trial court’s failure to find his abusive
childhood and the hardship that will result to his child from incarceration
as mitigating circumstances. The finding of mitigating circumstances is
within the discretion of the trial court. Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997). An allegation that the trial court failed to identify or
find a mitigating circumstance requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the
record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999). The trial court
is not obligated to accept the defendant’s contentions as to what
constitutes a mitigating circumstance. Legue, 688 N.E.2d at 411. McCann’s
claims that “nobody really liked [him]” as a child and that he “got beat up
a lot” are not significant examples of an abusive childhood. McCann does
not explain how his incarceration for maximum, consecutive sentences will
result in more hardship to his daughter than his incarceration for the
presumptive or minimum sentence. Battles v. State, 688 N.E.2d 1230, 1237
(Ind. 1997). We agree with the Court of Appeals that the trial court did
not abuse its discretion in failing to find these factors as mitigating.
Finally, McCann contends that the trial court improperly weighed the
aggravating and mitigating circumstances. The Court of Appeals remanded
this case to the trial court because “it is unclear what weight the trial
court assigned to each designated aggravator, . . . there are now fewer
valid aggravating circumstances to consider, [and] ‘we are not persuaded
that the original sentence would have been the same had the trial court not
relied on . . . impermissible factors.’” McCann, 742 N.E.2d at 1007
(quoting Bluck v. State, 716 N.E.2d 507, 515 (Ind. Ct. App. 1999)). We
disagree. This Court has many times noted that “[a] single aggravating
circumstance is enough to justify an enhancement or the imposition of
consecutive sentences.” Williams v. State, 690 N.E.2d 162, 172 (Ind.
1997). However, we 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. See Wooley
v. State, 716 N.E.2d 919, 933 (Ind. 1999); Angleton v. State, 686 N.E.2d
803, 817 (Ind. 1997). In this case, although one of the aggravating
circumstances was improper, there were no mitigating circumstances and
three other valid aggravating circumstances, including McCann’s criminal
history. Given these factors, we can say with confidence that the trial
court would have imposed the same sentence, even without the improper
aggravating circumstance. Accordingly, there is no procedural error
requiring reversal or remand for resentencing.
II. Manifestly Unreasonable
McCann also claims that his sentence is manifestly unreasonable.
Although this Court has the constitutional authority to review and revise
sentences, Ind. Const. art. VII, § 4, it will not do so unless the sentence
imposed is “manifestly unreasonable in light of the nature of the offense
and the character of the offender.” Carter v. State, 711 N.E.2d 835, 841
(Ind. 1999); Ind. Appellate Rule 7(B). This review is deferential to the
trial court: “[T]he issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.”
Spears v. State, 735 N.E.2d 1161, 1168 (Ind. 2000); Brown v. State, 698
N.E.2d 779, 783-84 (Ind. 1998); Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.
1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)).
The “nature of the offense” is breaking into a home to attack a
pregnant woman in her bed and then shooting her boyfriend when he tried to
come to her aid. Under “character of the offender,” McCann had a lengthy
criminal history including over fifteen arrests, one of which was for
breaking into a woman’s house and sexually assaulting her. In view of
these factors, the trial court’s imposition of the enhanced, consecutive
sentences was not “clearly, plainly, and obviously” unreasonable.
Conclusion
The sentence imposed by the trial court is affirmed. As to all other
issues, the Court of Appeals is summarily affirmed. Ind. Appellate Rule
58(A)(2).
SHEPARD, C.J, and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., concurs as to Part I and dissents as to Part II.
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[1] Dozier was shot in the chest. The bullet pierced his lung. The injury
caused him to miss work for an extended period of time and still interferes
with his breathing.