Ajabu v. State

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

Neil L. Weisman Jeffrey A. Modisett
South Bend, Indiana Attorney General of Indiana

Thomas D. Perkins
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

KOFI MODIBO AJABU, )
)
Appellant (Defendant Below), )
)
v. ) No. 71S00-9810-CR-546
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

___________________________________________________________________

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Sanford Brook
Cause No. 71D01-9409-CF-963
___________________________________________________________________

January 21, 2000

SHEPARD, Chief Justice.

Kofi Ajabu’s role in a triple robbery-murder led to a sentence of
life in prison without parole. When he appealed, we found certain defects
in his sentencing and remanded to the trial judge, who imposed prison terms
totaling 240 years. Ajabu claims this sentence is excessive. In light of
the fact that the trial court could well have imposed life without parole a
second time, we affirm.

Facts and Procedural History

When this case was initially here on appeal, we described the crimes
involved this way:
On March 17, 1994, Nicholas Allemenos, Lisa Allemenos, and Christopher
James were found dead in the home of Nicholas’s and Lisa’s father,
George Allemenos in Carmel. The house had been ransacked and the
three victims’ throats had been cut. . . . Defendant Kofi Ajabu and
two other men, James Walls and Raymond Adams, soon became suspects.

Ajabu v. State, 693 N.E.2d 921, 925-26 (Ind. 1998). Ajabu was charged and
convicted of three counts of murder, three counts of criminal confinement,
three counts of robbery, and one count of burglary. Id. at 926-27. The
trial court sentenced him to concurrent terms of life in prison without
parole (“LWOP”) for each murder conviction, and to a term of years for each
of the other convictions, sixty years of which to be served after the
concurrent life terms. Id. at 925. In so sentencing, the court found
three statutory aggravating circumstances supporting life imprisonment
without parole: intentional killing (Ind. Code § 35-50-2-9(b)(1)),
commission of another murder (Ind. Code § 35-50-2-9(b)(8)), and killing
persons who were confined (Ind. Code § 35-50-2-9(b)(13)(C)).[1]

On appeal, this Court affirmed Ajabu’s convictions, but remanded for
a new sentencing order. We observed that the trial court’s findings on the
(b)(1) aggravator seemed more pertinent to a “knowing” killing and asked
the trial judge to be more particular about what facts he thought
demonstrated that Ajabu killed “intentionally” -- as required, when a court
relies on Ind. Code § 35-50-2-9(b)(1). Ajabu, 693 N.E.2d at 939. We noted
that the other two aggravating circumstances the trial court found in
imposing life without parole were unchallenged and observed: “The only
open question is the quantum of aggravating evidence to be weighed against
the mitigating factors.” Id. at 940.[2]

On remand, the trial court determined that it could not find proof
beyond a reasonable doubt that Ajabu killed intentionally. (R. at 95.)
Rather than proceed to balance the two other LWOP aggravators as against
the mitigators, the court resentenced Ajabu under the general felony
sentencing statutes. It imposed 60 years for each murder count,[3] 20
years for each robbery count,[4] and 13 years for each confinement
count.[5] The court then ordered that the sentences for confinement and
robbery run concurrently, but ordered that those sentences run
consecutively to the murder sentences.[6] (R. at 109-110.) This resulted
in three 80-year sentences running consecutively for a total of 240 years.

Discussion and Decision

The central thesis of Ajabu’s appeal is that the trial court, having
declared that it could not make the findings necessary for the (b)(1)
aggravator, set out to “circumvent the specific requirements needed for a
life without parole sentence” by imposing 240 years, an effective life
sentence. (Appellant’s Br. at 10.)

As we have indicated above, the sentencing court need not have
abandoned the life without parole sentence on remand. Our previous opinion
said that the court “must make the findings required to establish the
(b)(1) aggravating circumstance beyond a reasonable doubt” if it used the
(b)(1) aggravator to support imposition of life without parole. Ajabu, 693
N.E.2d at 240. If, as it turned out, the sentencing court could not make
the findings necessary to support this aggravator, then it could have
relied on the (b)(8) and (b)(13) aggravating circumstances to impose life
without parole.

Thus, we approach Ajabu’s contention that his sentence is manifestly
unreasonable[7] in light of the fact that the trial court could well have
re-imposed LWOP using the other two statutory aggravators.

A. Aggravating Factors – Sentence Enhancement. In sentencing Ajabu
on remand, the trial court first considered the aggravating and mitigating
factors. Indiana Code § 35-38-1-7.1 governs the use of aggravating and
mitigating factors and lists specific factors that a court may consider
while sentencing. In enhancing a sentence, the court should “1) identify
the significant aggravators and mitigators, 2) relate the specific facts
and reasons which lead the court to find those aggravators and mitigators,
and 3) demonstrate it has balanced the aggravators against the mitigators
in reaching its sentence.” Gregory v. State, 644 N.E.2d 543, 545 (Ind.
1994).

Here, the court found two statutory aggravating factors: 1) that the
imposition of a reduced sentence or probation would depreciate the
seriousness of the crime, and 2) that Ajabu is in need of correctional or
rehabilitative treatment that can best be provided in a penal facility.
(R. at 98-99.)

With respect to the first aggravator, the court reasoned that imposing
any sentence less than the enhanced sentence would depreciate the
seriousness of the crime. In so deciding, the court relied on Ajabu’s
actions of “[b]ringing a weapon to the Allemenos home, disguising himself,
standing watch over Nicholas Allemenos, [taping] Nicholas Allemenos and
dragging Lisa Allemenos by her feet.” (R. at 99.)

Courts speak about the “depreciating the seriousness of a crime”
aggravator in two different ways. Indiana Code § 35-38-1-7.1 says it is an
aggravating circumstance that the “[i]mposition of a reduced sentence . . .
would depreciate the seriousness of the crime” (emphasis added). In this
instance, the aggravator cannot be used to justify an enhanced sentence,
but may only be used when the judge considers imposing a sentence shorter
than the presumptive one. Ector v. State, 639 N.E.2d 1014, 1016 (Ind.
1994). An alternate form of this factor focuses on the imposition of an
enhanced sentence. “This Court has . . . upheld sentence enhancement based
upon a finding that a sentence less than an enhanced term sought by the
prosecution would depreciate the seriousness of the crime.” Id.

Here, the trial court acknowledged the differing uses of this
aggravator and specifically articulated that use of the aggravator in the
instant case fell under the “alternate” version. The court reasoned that,
in light of the facts and circumstances of the case, and since the
prosecution had requested an enhanced sentence, (R. at 181), the imposition
of any sentence less than an enhanced sentence would depreciate the
seriousness of the crime, (R. at 99). This was an appropriate finding in
light of the particular facts the court identified in support of it.

With respect to the second aggravating circumstance, Ajabu’s need for
correctional or rehabilitative treatment, the court stated:
The most obvious facts supporting this aggravator are the crimes
themselves: the brutal method of killing and the number and ages
of the victims. A person capable of committing the atrocities for
which Kofi Ajabu was convicted is in dire need of correctional
treatment. This court knows nothing that exists outside the
correctional system that can accomplish the correctional and
rehabilitative treatment necessary to deal with the heinous conduct
and reckless disregard for human life engaged [in] by Kofi Ajabu.

(R. at 98-99.)

In using this aggravator to support an enhanced sentence, it is not
enough that the sentencing court simply recite the statutory language.
Many times, as was the case here, there is no question that the defendant
will be incarcerated in a penal facility. Thus, for this aggravator to
support an enhanced sentence, the court must give a specific and
individualized reason why the defendant is in need of correctional
treatment that can best be provided by a period of incarceration in excess
of the presumptive sentence. See Berry v. State, 703 N.E.2d 154, 158 (Ind.
1998). The trial court did so here, and this aggravator was appropriately
given weight in imposing an enhanced sentence.

The trial court properly considered two statutory aggravators, in
addition to several other aggravators not listed in the statute.[8] These
factors were 1) the nature and circumstances of the crime, specifically
that the victims had been tortured and were in extreme pain during their
confinement and that Ajabu exercised control over their situation; 2)
Ajabu’s role in the planning and execution of the events; and 3) the
psychological and emotional effects on the victims’ families. (R. at 100-
01.)

Determining that the aggravating factors outweighed the mitigating
factors, the court enhanced the sentences for murder and robbery, and
ordered that the sentences for robbery and confinement run concurrently to
the murder sentences.

B. Aggravating Factors – Consecutive Sentencing. The imposition of
consecutive sentences is a separate and discrete decision from sentence
enhancement, although both may be dependent upon the same statutory
aggravating circumstances. Ind. Code Ann. § 35-38-1-7.1(b) (West Supp.
1993); Lindsey v. State, 485 N.E.2d 102, 108 (Ind. 1985). As with sentence
enhancement, even a single aggravating circumstance may support the
imposition of consecutive sentences. Stewart v. State, 531 N.E.2d 1146,
1150 (Ind. 1988).

Here, the sentencing court on remand identified the aggravating
factors previously discussed, gave specific facts and reasons supporting
each aggravator, and weighed these aggravators against the mitigating
circumstances. See Fry v. State, 521 N.E.2d 1302, 1306 (Ind. 1988); (R. at
92-107.) The court also said: “The evidence presented during Kofi Ajabu’s
trial detailed the extreme viciousness of the murders and the brutality
leading up to the murders. This along with the aggravating circumstances
set out herein make it clear that the court can impose consecutive
sentences. . . .” (R. at 106.) Having previously determined that the
aggravating factors were properly found, we conclude that the court did not
err in using these factors to support consecutive sentencing.

C. Failure to Consider Mitigating Factors. Finally, Ajabu contends
that the trial court erred in failing to consider several mitigating
circumstances. Ajabu presented the following mitigators for the court’s
consideration: 1) that Ajabu demonstrated remorse, (R. at 190), 2) that he
did not intend to kill the victims when the crimes were originally planned
or when they were executed, (R. at 193), 3) that he had no history of
delinquency or criminal activity, (R. at 196), 4) that he would respond
affirmatively to probation or short-term imprisonment, (R. at 197), and 5)
that he is unlikely to commit another crime, (R. at 198).

“The finding of mitigating factors is not mandatory and rests within
the discretion of the trial court.” Hurt v. State, 657 N.E.2d 112, 115
(Ind. 1995). “Only when the trial court fails to find a significant
mitigator that is clearly supported by the record is there a reasonable
belief that it was improperly overlooked.” Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997).

The mitigators which Ajabu claimed the sentencing court overlooked are
not clearly supported by the record. Ajabu first argues that the
sentencing court failed to consider the mitigating factor “that he did not
intentionally kill anyone.” (Appellant’s Br. at 10.) To be sure, the
court said it could not “find proof beyond a reasonable doubt that Mr.
Ajabu committed murders by intentionally killing his victims while
attempting to commit burglary or robbery.” (R. at 95.) When a court finds
the evidence inadequate to prove an intentional killing, it does not
necessarily follow that the killing was unintentional or unknowing or
accidental. On the available evidence, the court was not required to find
lack of intent as a mitigator.

Ajabu also asserts that the trial court should have found that he did
not contemplate that his crime would cause serious harm to persons or
property. Ind. Code Ann. § 35-38-1-7.1(c)(1) (West Supp. 1993). The
sentencing judge was entitled to be skeptical about this proposition in
light of the fact that Ajabu arrived at the Allemenos home armed with
weapons and duct tape. (R. at 95.) There is no significant evidence in
the record to the contrary. Likewise, the record does not support Ajabu’s
contention that he is likely to respond affirmatively to probation or short-
term imprisonment or that he is unlikely to commit another crime.

The sentencing court did find two significant mitigating factors: 1)
that Ajabu had no history of delinquency or criminal activity and 2) that
he demonstrated remorse. (R. at 104.)[9] It then found that the
aggravating factors in each count outweighed the mitigating factors. (R.
at 108.)

Conclusion

The essence of Ajabu’s claim is that the sentencing judge circumvented
our previous ruling and “virtually imposed life without parole anyway.”
(Appellant’s Br. at 13.) Our previous opinion, however, did not preclude
the court from imposing a life sentence without parole. The (b)(1)
aggravator used in imposing life without parole was only one of several
possible aggravators. Therefore, Ajabu’s argument that his sentence is
manifestly unreasonable because it is a “virtual life sentence” is
unavailing.

The sentencing court properly considered the aggravating and
mitigating factors in imposing enhanced and consecutive sentences. The
sentence imposed represents a valid exercise of trial court discretion.

Accordingly, we affirm.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------
[1] Formerly Ind. Code Ann. § 35-50-2-9(b)(12)(C) (West Supp. 1993).
[2] We also asked the trial court to: 1) clarify the aggravating
circumstance findings under Ind. Code § 35-50-2-9(b)(8); 2) determine
whether the mitigating circumstances are outweighed by the aggravating
circumstances for each murder conviction; and 3) set forth the court’s
“personal conclusion that the sentence is appropriate punishment for this
offender and this crime.” Ajabu, 693 N.E.2d at 940.
[3] Pursuant to the statute under which Ajabu was sentenced for murder, the
presumptive term was 40 years, with not more than 20 years added for
aggravating circumstances. Ind. Code Ann. § 35-50-2-3 (West Supp. 1993).
[4] Pursuant to the statute under which Ajabu was sentenced for robbery,
the presumptive term was 10 years, with not more than 10 years added for
aggravating circumstances. Ind. Code Ann. § 35-50-2-5 (West Supp. 1993).
[5] On remand the sentencing court applied Ind. Code § 35-50-1-2(c),
“except for crimes of violence, the total of the consecutive terms of
imprisonment, . . . to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not exceed
the presumptive sentence for a felony which is one (1) class of felony
higher than the most serious of the felonies for which the person has been
convicted.” Criminal confinement is not defined as a crime of violence;
therefore, the court enhanced the confinement sentence only 3 years, for a
total of 13 years, so that the total consecutive sentence would not exceed
40 years. (R. at 107.)
[6] The court also sentenced Ajabu to 20 years for burglary, to run
concurrently to the other sentences. (R. at 109.)
[7] The Indiana Constitution, Article VII, Section 4, grants this
Court authority to review and revise sentences. We exercise restraint in
this review, however, and revise only those sentences that are “manifestly
unreasonable in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 17(B).

[8] The criteria listed in Ind. Code § 35-38-1-7.1(b) do not limit the
matters that a court may consider in determining a sentence. Ind. Code
Ann. § 35-38-1-7.1(d) (West Supp. 1993).
[9] The sentencing court was hard-pressed to give this finding much weight.
At the sentencing hearing, the court stated: “The lack of remorse is
something that I dealt quite a bit with, because I found remorse as a
mitigator in the initial sentencing stage. . . . That remorse, however,
was a very cursory ‘I’m sorry,’ in this very courtroom at the very moment
that he was to be sentenced.” (R. at 184.)