Attorney for Appellant
Mark Maynard
Decker, Lawyer, & Maynard
Indianapolis, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
HERSHELL SHERWOOD,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 48S00-9906-CR-363
)
)
)
)
)
)
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9408-CF-195
ON DIRECT APPEAL
May 31, 2001
SULLIVAN, Justice.
Defendant Herschell Sherwood was convicted of murder and conspiracy
to commit robbery. We affirmed his conviction, but remanded the case to
the trial court for a new sentencing order. Because the new sentencing
order contains a number of the same inadequacies as the initial sentence,
we exercise our authority to review and revise the sentence here.
Background
The facts most favorable to the verdict indicate that on December 13,
1993, Defendant and an accomplice murdered Jerry Baugh at a car wash while
attempting to rob him.[1] Defendant was convicted of Murder,[2] and
Conspiracy to Commit Robbery, a Class B felony.[3]
At the sentencing hearing, Defendant introduced evidence of
mitigating circumstances. Defendant called witnesses who testified that he
had previously led a law-abiding life and was involved in church activities
as a young man; that his divorce and the death of his father had disturbed
him and led to more unstable behavior; that he was a good worker and not a
violent person; and that his involvement in the crimes of which he was
convicted was out of character for him. Defendant also cited his remorse
as a mitigating circumstance.
The trial court did not address the mitigation evidence, but found
four aggravating circumstances: (1) the imposition of a reduced sentence
would depreciate the seriousness of the crime, (2) the crime was a
particularly heinous act, (3) Defendant was previously involved with
cocaine, and (4) the crime impacted the victim’s family. See Sherwood v.
State, 702 N.E.2d 694, 700 (Ind. 1998). The trial court sentenced
Defendant to 80 years—consecutive sentences of 60 years for the murder and
20 years for the conspiracy to commit robbery convictions.[4] Id. at 696.
On appeal, we found the sentencing order improper in three respects.
First, we found that the “trial court inappropriately applied the first
aggravating circumstance.” Id. at 700. Second, we found the third
aggravating circumstance—Defendant’s involvement with cocaine—to be
inappropriate in this case. Id. Finally, we found that the trial court
erroneously failed to consider Defendant’s proffered mitigation evidence.
Id. Because the trial court incorrectly sentenced Defendant, we remanded
the case to the trial court for a new sentencing order. Id.
On remand, the trial court did not alter the original sentence. It
did issue a new sentencing order, from which Defendant appeals, arguing
that it suffers from the same defects as the original order.
Discussion
Trial courts have discretion in sentencing, and we review such
decisions only for an abuse of discretion. See Morgan v. State, 675 N.E.2d
1067, 1072 (Ind. 1996). When sentencing a defendant, a trial court may
consider certain aggravating and mitigating circumstances. See Ind. Code
§§ 35-38-1-7.1(b) and 35-38-1-7.1(c) (1993). The court may increase a
sentence or impose consecutive sentences if the court finds aggravating
factors. See id. § 35-38-1-7.1(b). One valid aggravator alone is enough
to enhance a sentence or impose it to run consecutively with another. See
id. See also Smith v State, 675 N.E.2d 693, 697 (Ind. 1996). The court
may also consider certain factors as mitigating or as favoring a reduced or
suspended sentence. See id.
Indiana law requires that the trial court take the following steps
during sentencing: (1) identify all significant mitigating and aggravating
circumstances; (2) specify facts and reasons which lead the court to find
the existence of each such circumstance; and (3) demonstrate that the
mitigating and aggravating circumstances have been evaluated and balanced
in determination of the sentence. See Morgan, 675 N.E.2d at 1073; Dumbsky
v. State, 508 N.E.2d 1274, 1278 (Ind. 1987).
The trial court is not obligated to explain why it did not find a
factor to be significantly mitigating. See Birdsong v. State, 685 N.E.2d
42, 47 (Ind. 1997). Indiana law, however, mandates that the trial judge
not ignore facts in the record that would mitigate an offense, and a
failure to find mitigating circumstances that are clearly supported by the
record may imply that the trial court failed to properly consider them.
See id.
A
We originally remanded this case for a new sentencing order based on
the trial court’s treatment of the aggravating and mitigating
circumstances. See Sherwood, 702 N.E.2d at 700. Defendant had presented
and argued the existence of mitigating circumstances, but the trial court
did not acknowledge them. See id. Because there was no indication whether
the trial court rejected these factors or failed to consider them, we
assumed that the trial court failed to consider the mitigating evidence.
See id. Additionally, we found that the trial court “inappropriately
applied the first aggravating circumstance.”[5] See id.
We also held that the trial court improperly considered Defendant’s
prior cocaine involvement. See id. At the sentencing hearing, the State
presented evidence of an arrest for cocaine use while Defendant was in the
military. See id. The basis for this aggravating circumstance was a
printout from the National Crime Information Center. See id. at 700 n.7.
There was no evidence of a conviction, and Defendant testified that he was
neither charged nor disciplined because the cocaine was found in a desk
that he shared with another soldier. See id. We explained that the court
could not consider the cocaine arrest as criminal conduct:
To the extent that the trial court viewed the prior involvement with
cocaine as evidence of criminal history, it was improperly considered
under Indiana Code section 35-38-1-7.1(b)(2) (1993). A single arrest
does not establish a history of criminal conduct. Tunstill v. State,
568 N.E.2d 539, 545 (Ind.1991). Nonetheless, a prior arrest may be
considered under Indiana Code section 35-38-1-7.1(d) (1993) because
such a record ‘reveal[s] 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.’ Tunstill,
568 N.E.2d at 545. Here, the trial court did not demonstrate that it
considered ‘prior involvement with cocaine’ to be evidence that
defendant has not been deterred from antisocial behavior. In fact,
the trial court did not specify any particular manner in which it
considered this evidence beyond a mere recitation of the facts.
Therefore, the trial court erroneously cited to defendant’s prior
involvement with cocaine as an aggravating factor in this case.
See id. (quotations in original).
B
The trial court’s new sentencing order is an inadequate response to
our decision in Sherwood.
The new sentencing order briefly addressed some of Defendant’s
mitigation claims. It stated:
[The witnesses for Defendant] generally testified that there were no
problems with Defendant when he was growing up but that after his
father passed and he was divorced from his ex-wife that he no longer
was a leader, became a follower and an introvert. … The experience
that [Defendant] had in those regards are not mitigating factors and
do not lessen the severity of this offense.
But the order fails to address his claims of a lack of significant criminal
history and remorse.
The trial court also failed to follow our direction regarding the
cocaine arrest. Instead, the court said, “The fact that the defendant
apparently began using cocaine in the military is an extreme aggravating
circumstance … because this case was in fact a conspiracy to … perpetuate
the criminal behavior or illegal drug consumption with the defendant and
his co-conspirators.”
We explicitly stated in Sherwood that Defendant’s cocaine arrest
could only be considered to the extent that his prior involvement with law
enforcement did not deter further criminal activity. 702 N.E.2d at 700.
We also clearly explained that a single arrest does not establish a history
of criminal conduct. Id. Despite this, the trial court again found
Defendant’s cocaine arrest as criminal conduct and found it particularly
aggravating because the crime he was charged with was a continuation of
that criminal conduct.
C
Where we find an irregularity in a trial court’s sentencing decision,
we have the option to remand to the trial court for a clarification or new
sentencing determination; to affirm the sentence if the error is harmless;
or to reweigh the proper aggravating and mitigating circumstances
independently at the appellate level. See Bivins v. State, 642 N.E.2d 928,
957 (Ind. 1994), cert denied, 516 U.S. 1077 (1996). We elect appellate
reweighing here.
The only mitigating factor that we find to be significant is
Defendant’s lack of a significant criminal record prior to this crime. We
find that this is a mitigating circumstance in the medium range. See Baird
v. State, 604 N.E.2d 1170, 1182 (Ind. 1992) (weighing lack of criminal
history as a mitigating circumstance in the medium range), cert denied, 510
U.S. 893 (1993). We do not find Defendant’s remorse to be out of the
ordinary and therefore do not give it any mitigating weight. See Evans v.
State, 727 N.E.2d 1072, 1083 (Ind. 2000) (“It is within the sentencing
court’s discretion to determine whether remorse should be considered as a
‘significant’ mitigating factor.”) As noted in our earlier opinion, we
agree with the trial court’s finding that the heinousness of the crime
constitutes a valid aggravating circumstance.
Weighing the aggravating and mitigating circumstance, we find them in
approximate balance and conclude that concurrent presumptive sentences are
therefore appropriate.
Conclusion
We remand this case to the trial court with instructions to impose
concurrent sentences of 40 years on the murder count[6] and 10 years on the
conspiracy to commit robbery count.[7]
SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur.
DICKSON, J., concurs and dissents with separate opinion.
In The
INDIANA SUPREME COURT
HERSCHELL SHERWOOD, )
Defendant-Appellant, )
)
v. ) 48S00-9906-CR-363
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9408-CF-195
________________________________________________
On Direct Appeal
May 31, 2001
DICKSON, Justice, concurring and dissenting.
I concur with the majority's analysis except for its final
conclusion. The majority agrees with the trial court's finding that the
heinousness of the crime constitutes a valid aggravating circumstance, but
concludes that this is approximately balanced by a single mitigating
circumstance--the defendant's lack of a significant prior criminal record.
I believe that the aggravating circumstance outweighs the mitigating
circumstance and that the imposition of concurrent presumptive sentences is
an insufficient punishment for these offenses and this offender.
-----------------------
[1] For a full review of the facts see Sherwood v. State, 702 N.E.2d
694, 696-97 (Ind. 1988).
[2] Ind. Code § 35-42-1-1 (1993).
[3] Id. §§ 35-41-5-2 and 35-42-5-1.
[4] The presumptive sentence for murder at the time of the crimes was
40 years. Up to 20 years could be added for aggravating circumstances.
See Ind. Code § 35-50-2-3 (1993). The presumptive sentence for a Class B
felony was ten years. Up to ten years could be added for aggravating
circumstances. See id. § 35-50-2-5.
[5] The trial court stated that the imposition of a reduced sentence
would depreciate the seriousness of the crime. We found this to be an
inappropriate aggravating circumstance because the record did not reflect
any evidence that the trial court considered imposing a sentence shorter
than the presumptive term. See Sherwood, 702 N.E.2d at 700
[6] Ind. Code § 35-50-2-3(a) (1993).
[7] Id. § 35-50-2-5.