Bluck v. State

GARRARD, Judge,

dissenting

I find the sentencing phase of this case terribly troubling. I have concluded, however, that I must respectfully dissent. As I perceive it, there are two fundamental questions which must be addressed to resolve this appeal.5

The first concerns the proper role of an appellate court, especially the intermediate appellate court, in determining the appropriate Sentence for a convicted offender. Put somewhat differently, who should have the ultimate discretion to determine the proper sentence? For generations this state held that to be the exclusive province of the trial court. That view was no doubt aided by statutory schemes that simply provided a specific term for a specific offense, and that subsequently provided indeterminate sentences fixed within specific parameters on the theory that penal authorities could best fit the specific term to the particular offender.

The judicial article added to our constitution in. 1970 expressly empowered both the supreme court and the court of appeals to review and revise the sentence imposed in all criminal cases.6 In addition, the criminal code adopted in 1976 greatly expanded the sentencing range available to trial courts by its classification of felonies that were accompanied by a presumptive sentence to which time might be added or subtracted within specified limits based upon aggravating or mitigating factors. Moreover, sentences might be ordered to be served consecutively or concurrently based essentially upon the same factors. It seems to me that a side effect of this sentencing scheme was that it invoked for trial judges the problem often faced by appellate judges, that it may be considerably easier to intuit an appropriate answer than to articulate the reasons for that answer.

With this backdrop it is not surprising that our supreme court adopted the view that while it was" necessary for the trial judges to expressly determine aggravating *517and, when appropriate, mitigating factors, a single valid aggravator was sufficient and could be utilized both to enhance a particular sentence and to cause it to be served consecutively with another sentence.7 Indeed, recent decisions of our supreme court have further deferred to the trial court’s discretion by holding that “[w]hen the record indicates that the trial judge engaged in the evaluative processes but simply did not sufficiently articulate his reasons for enhancing the sentence and the record indicates that the sentence imposed was not manifestly unreasonable, then the purposes underlying the specificity requirement have been satisfied.” Mitchem v. State, 685 N.E.2d 671, 679 (Ind.1997); see also Adkins v. State, 532 N.E.2d 6, 9 (Ind.1989); Henderson v. State, 489 N.E.2d 68, 72 (Ind.1986).

Pursuant to its constitutional empowerment the supreme court adopted Appellate Rule 17 providing for appellate review of sentences and prescribing that “[t]he reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable, in light of the nature of the offense and the character of the offender.” In interpreting the rule the court has asserted that “the issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so.” Riley v. State, 711 N.E.2d 489, 496 (Ind.1999); see also Thacker v. State, 709 N.E.2d 3, 10 (Ind.1999); Brown v. State, 698 N.E.2d 779, 784 (Ind.1998).

In the relatively few cases in which the court has found a sentence to be manifestly unreasonable, it has often failed to announce the reasons sustaining the reduced sentence it has chosen. Indeed, in Carter v. State, 711 N.E.2d 835, 843 (Ind.1999) the court acknowledged that “[r]eduction to something between the presumptive and the maximum imposed by the trial court is necessarily somewhat arbitrary.” I can only deduce from this, and the other cases in which the court has actually imposed a different sentence,8 that the court has concluded that once it has found .a particular sentence to be manifestly unreasonable, it is invested with original discretion to determine a proper sentence.9

While I certainly concede the authority of our supreme court as the final arbiter of state law sentencing questions to make such reductions, I find it a disquietingly different matter for this court to propose to do so. In my view our role and mandate is to engage in principled decision making. I, frankly, find that role at odds with the notion that two out of three of us sitting as a panel from the total of fifteen judges on this court should exercise what is akin to original discretion to determine the appropriate sentence for a person where we have never seen the defendant or heard any of the witnesses.10 Therefore, I conclude that while we have the authority to revise sentences, we should not exercise that authority absent the adoption of objective criteria governing the result.11

*518Having thus attempted to set forth from whence I come, I turn to the particulars of this case.

The majority found three valid aggrava-tors, and I agree.

The majority disallowed the aggravator that Bluck was in need of correctional treatment because he failed to acknowledge his guilt and was therefore a poor candidate for rehabilitation. In so stating the trial court appeared to rely upon an expert witness from other cases. The general view among experts in the child molesting field certainly appeal's to be that these sex offenders offer little opportunity for rehabilitation unless they admit the wrongness of their conduct and achieve a desire to change. See, e.g., Symposium, The Science of Sex Offenders: Risk Assessment, Treatment, and Prevention, 4 Psychol. Pub. Pol’y & L. 50 (1998). Even so, I doubt the matter is the proper subject of judicial notice, and I agree with the majority that sentencing should be based upon factors attributable to the specific defendant rather than statistical “profile” evidence. Furthermore, I agree that broad policy reasons decree that courts should not be permitted to aggravate a sentence on the ground that a defendant continues to maintain his innocence.

The majority found that Bluck was not in a position of special trust and I agree, but it also determined that there were no threats to kill the victim and his family. Perhaps that is technically true, but as I read the record of the sentencing hearing, it appears to me that a fair inference is that the court determined that the threats Bluck employed against his fourteen year old victim not only to hide his crime but to continue the relationship constituted an aggravator. I would agree that it did.

Finally, the majority attaches substantial significance to the fact that the court identified Bluck’s lack of criminal history but gave it no weight as a mitigator. I agree that our supreme court has used the modifier “significant” when addressing this mitigator. On the other hand, writers in the child molesting field believe that child molesting is a very underreported offense and many molesters have committed multiple offenses before ever being charged. See Kirk Heilbrun et al., Sexual Offending: Linking Assessment, Intervention and Decision Making, 4 Psychol. Pub. Pol’y & L. 138, 140 (1998); Peters-Baker, Challenging Traditional Notions of Managing Sex Offenders:Prognosis is Lifetime Management, 66 UMKC L.Rev. 629, 641 (1998); Robert Teir & Kevin Coy, Approaches to Sexual Predators: Community Notification and Civil Commitment, 23 New Eng. J. on Crim. & Civ. Confinement 405, 408 (1997).

Here the trial judge noted that this was Bluck’s first known conviction, that the offenses here were ongoing in nature and he had three other charges pending with three different victims. Thus, there is a reasonable inference that Bluck’s lack of criminal record reflects no more than that he was not previously caught. On this basis I feel the court was justified in discounting Bluck’s lack of a prior record to near zero for purposes of mitigation.

Turning to the question of whether the sentence was manifestly unreasonable in light of the nature of the offense and character of the offender, I confess that I have struggled to find a hand hold upon which to proceed. As a matter of personal choice I probably would not have imposed the very maximum available sentence on Bluck and would probably have been content to have the Class C felonies served concurrently with the Class B felonies while aggravating the sentences and causing the Class B felonies to run consecutively. But that is no more than personal assessment and other options appear equally tenable. It does not strike me, however, that my personal reaction at all equates with the necessity that to be manifestly unreasonable the sentence must be “clearly, plainly and obviously so.” I have concluded that for this court to reverse a sentence as *519manifestly unreasonable, the determination must be based upon the trial court’s necessary reliance on improper aggrava-tors or mitigators not found by the trial court but undisputedly appearing in the record, or upon some other clearly articulable ground such as occurred in Gregory v. State, 644 N.E.2d 543 (Ind.1994), where agents of the state procured the defendant to commit the same offense several times over a period of days and then prosecuted for each sale committed.

Here the trial judge found five aggravating factors. I agree with four of them and the majority accepts the existence of three. While the court found Bluck had no prior record under the circumstances it determined that this should be given little or no weight. I agree that was a reasonable finding. What about the nature of the offender and the offense? It seems to me that we know enough to say that such offenders are predators and take advantage of their mature appearance and manner to molest boys and from the nature of their appetites they seek victim after victim. We do not know the extent of psychological damage done to their victims in general or this victim in particular, but we may reasonably presume that substantial damage occurs. In the present case each offense differed, although from the testimony it appeared that each, save one, occurred several times. As found by the trial court, the victim was violated in every way possible sexually. We know that the defendant has been charged with similar offenses involving three other victims. The case is dissimilar to that in Beno v. State, 581 N.E.2d 922 (Ind.1991) or Gregory v. State, supra, where the state prompted a defendant to commit substantially the same offense (selling drugs) several times over a period of days, and I would find those decisions have no application here.

Perhaps our supreme court will revisit the determination that a single aggravator is sufficient to both enhance sentences and cause them to be served consecutively. But that remains the law today, and in the case before us we are in agreement that the trial judge properly found at least three aggravators. Moreover, because of the heinous nature of the offense and the proclivity of the offenders to perpetrate again and again, I cannot say that the penalty was manifestly unreasonable.

I would affirm the trial court.

. Of course our appellate courts have always been willing to address the situation where a penalty imposed is beyond the authority granted by the legislature. Thus for the sake of brevity, I exclude from consideration here those situations and assume throughout a penalty imposed within the guidelines set by the various sentencing statutes.

. Indiana Constitution art. 7, §§ 4, and 6. The intermediate court is limited to “the extent provided by rule.”

. Because a great many decisions apply this rule literally, I find the use of adjectives such as "modest” and "substantial” in connection with aggravators or mitigators not very helpful.

. The exception is Cooper v. State, 540 N.E.2d 1216 (Ind.1989) where the court vacated the death penalty for a fifteen year old murderer and held it was bound to impose the longest available term of sentence.

. In addition to the other benefits of finality, this approach avoids the necessity of instructing a trial court, which has presumably already exercised thoughtful discretion, to do it over again and arrive at a different conclusion.

. I realize the likely adoption of the pending constitutional amendment will vest in this court original appellate criminal jurisdiction in all but death penalty cases. Even so, our supreme court will retain its transfer function and may proceed to review any sentence imposed, whether by this court or a trial court, on grounds that it is manifestly unreasonable.

. By this I do not mean to suggest that we should adopt anything akin to the federal sentencing guidelines, which appear to me to *518be both unwieldy and fraught with controversy-