Allen v. State

BAILEY, Judge

dissenting

I respectfully dissent. Notwithstanding society’s legitimate interest in protecting itself against the most serious offenders, Indiana’s criminal justice system is founded on principles of reformation and must afford offenders an opportunity for rehabilitation where reasonably possible. Fointno v. State, 487 N.E.2d 140, 144 (Ind.1986); Bluck v. State, 716 N.E.2d 507, 514 (Ind.Ct.App.1999); IND.CONST. Art. I, § 18. This court is charged under the Indiana Constitution with the responsibility to review and revise sentences “to the extent provided by rule.” IND.CONST. Art. VII, § 6; Bluck, 716 N.E.2d at 516; Cunningham v. State, 469 N.E.2d 1, 8 (Ind.Ct.App.1984) (although we are loath to review any sentence imposed by a trial court, we are nevertheless constitutionally mandated to do so). Appellate Rule 17(A)(3) reads as follows:

The Supreme Court will review sentences imposed upon convictions appeal-able to that Court; the Court of Appeals will review sentences imposed upon convictions appealable to the Court of Appeals.

(emphasis added). Clearly, the Indiana Court of Appeals has been charged with the responsibility to review sentences ap-pealable to its court to the same extent as the supreme court has with respect to the sentences appealable to that court. It is of no moment, and must be expected, that individual members of an Indiana appellate court may disagree regarding the reasonableness of a particular sentence. See Franklin v. State, 715 N.E.2d 1237 (Ind.1999); Angleton v. State, 714 N.E.2d 156 (Ind.1999); Carter v. State, 711 N.E.2d 835 (Ind.1999); Thacker v. State, 709 N.E.2d 3 (Ind.1999) (representing four recent cases in which individual supreme court justices disagreed regarding the reasonableness of a particular sentence imposed).

Therefore, the narrow, circumscribed approach to reviewing sentences acceded to by the majority, as advocated by the dissent in Bluck, 716 N.E.2d at 519, is misguided and incorrect. While it may be comfortable to rubber stamp every sentence supported by the objective criteria” of one remaining valid aggravating circumstance, such a dispassionate, complacent approach constitutes an abdication of the *821solemn constitutional responsibility imposed upon this court under Indiana’s criminal justice system which, as stated earlier, has been founded on principles of reformation. See IND.CONST. Art. I, § 18.

In the present case, as noted by the majority, the trial court properly relied upon the fact that one of the victims was eight years-old. See IND. CODE § 35-3 8-1—7.1(a) (4). The trial court also properly noted that the circumstances of the present offense were particularly egregious because Allen fled the scene of an accident in which one child was killed and another was seriously injured. See IND. CODE § 35-38—1—7.1(a)(2): Smith v. State, 675 N.E.2d 693, 698 (Ind.1996) (noting that while a material element of a crime may not also constitute an aggravating circumstance, the court may look to the particularized circumstances of the criminal act): but see Edgecomb v. State, 673 N.E.2d 1185, 1199 (Ind.1996) (holding that the trial court improperly relied upon its statement that the crime was ‘particularly heinous,’ without articulating circumstances which were not covered by other stated aggravators). Finally, the trial court properly noted that Allen, due to his immaturity and that his earlier probation had been revoked, posed a high risk of recidivism. See IND. CODE § 35-38-1-7.1(a)(1).

However, as Allen’s two class C felony convictions were based upon the death of his passenger, the statutorily authorized aggravating circumstance of the age of the eight year-old victim applies only to the remaining class D felony Criminal Recklessness conviction. The substance of other remaining valid aggravating circumstances do not deviate significantly from the elements of the offenses involved. Allen’s irresponsibility and recklessness in causing the accident were essentially material elements of the charged offenses of Reckless Homicide and Criminal Recklessness. See Johnson v. State, 687 N.E.2d 345, 347 (Ind.1997) (holding that the trial court improperly relied on the defendant’s motive to rob victim of approximately $400.00 as an aggravating circumstance where the taking of property was a material element of the offense charged).

Moreover, the trial court specifically found that Allen’s relatively young age, 22 years, and minimal criminal history were mitigating circumstances. (R. 29, 291). The lack of a criminal record is a mitigating factor deserving “substantial mitigating weight.” Loveless v. State, 642 N.E.2d 974, 976 (Ind.1994). However, by imposing the statutory maximum sentence, these mitigating circumstances were given absolutely no weight or were, in effect, erroneously ignored. See Bluck, 716 N.E.2d at 514; Young v. State, 696 N.E.2d 386, 391 (Ind.1998) (although weight need not be given to every mitigating factor, the trial court may not ignore mitigating factors that are clearly supported by the record). Due to the trial court’s failure to afford any weight to these mitigators, which it specifically found and which were amply supported by the record, the sentence imposed is “clearly, plainly, and obviously” unreasonable. See Riley v. State, 711 N.E.2d 489, 496 (Ind.1999) (noting that a sentence authorized by statute will not be revised unless it is “clearly, plainly, and obviously” unreasonable); Buchanan v. State, 699 N.E.2d 655, 657 (Ind.1998) (noting that the statutory maximum sentence enhancement should be reserved for the very worst offenses and offenders).

After pruning out the invalid aggravating circumstances considered by the trial court, I am compelled to conclude that the trial court abused its discretion in imposing the statutory maximum sentence of nineteen years upon the twenty-two year-old offender in the present case who had no appreciable criminal history. See Edgecomb, 673 N.E.2d at 1199-1200 (remanding for the imposition of the presumptive sentence because, once the erroneously listed aggravating circumstances were pruned out, the trial court’s enhanced sentence was manifestly unreasonable). While I *822agree that the trial court was justified in entering consecutive sentences and in enhancing the sentence on the class D felony, the statutory maximum sentence is nevertheless manifestly unreasonable considering the nature of the offenses and the character of the offender. Accordingly, I would reverse Allen’s sentence and remand with instructions that the trial court impose the presumptive sentences of four years on the class C felon convictions and a maximum three-year sentence for the class D felony, all to run consecutively, for an aggregate sentence of eleven years with two years suspended (4 + 4 + 3).5

. The presumptive sentence for a class C felony is four years. Ind. Code § 35-50-2-6(a). The maximum sentence for a class D felony is three years. Ind. Code § 35-50-2-7(a).