Cherrone v. State

ATTORNEY FOR APPELLANT

Edward C. Hilgendorf
South Bend, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Barbara Gasper Hines
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

ANDREW CHERRONE, JR., )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-9904-CR-265
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D04-9806-CF-00238
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________
March 31, 2000
BOEHM, Justice.
Andrew Cherrone, Jr. was convicted of the murder and attempted
robbery of Howard Shultz. He was sentenced to consecutive terms of sixty-
five years imprisonment for murder and fifty years for attempted robbery.
In this direct appeal he contends: (1) the trial court should have
suppressed his confession to police because he was denied the right to
consult with his father during the interrogation; (2) there is insufficient
evidence to support his conviction for attempted robbery; and (3) his 115-
year sentence is manifestly unreasonable. We affirm the convictions but
remand to the trial court with instructions to impose concurrent sentences.
Factual and Procedural Background
On the evening of May 24, 1998, Cherrone, sixteen, was drinking
alcohol with his friends Roy McCarthy, fourteen, and Justin Maike,
fifteen. His thirteen-year-old girlfriend Margaret Deskovich was also
present but not drinking. Late that evening the group went to a
convenience store to get something to eat, but had no money. Cherrone told
Maike, “[W]e should go rob Mr. Shultz,” a ninety-year-old man who lived
nearby. Cherrone then said he was not serious, but he and Maike walked to
Shultz’s house. Deskovich and McCarthy remained at the convenience store.

Cherrone and Maike found lights on at Shultz’s house and knocked on
the door. When Shultz answered the knock, Cherrone asked if he could use
the telephone. Shultz retrieved a cordless phone and handed it to
Cherrone, who pretended to call someone. Because Maike’s face was covered
by his shirt, Shultz asked if Maike was a boy or a girl. Maike then showed
his face to Shultz. After a few seconds of silence, Cherrone “jumped in
the door” at Shultz and began beating him with the cordless phone. Maike
screamed at Cherrone to stop and then ran back to the convenience store.
Cherrone ultimately stabbed Shultz in the neck with a pen. Shultz died as
the result of “cranial blunt trauma . . . to the head and brain cavity as
well as a stab wound to the neck.”
Cherrone then went with the others to Deskovich’s house where he told
Maike and McCarthy to burn his clothes. En route he discarded Shultz’s
cordless phone. Cherrone told Maike and McCarthy not to tell anyone about
the crime “because if he went to prison, his family would get [them].”
While Maike and McCarthy were burning the clothes, Cherrone told Deskovich
that he had beaten Shultz over the head with the phone and stabbed him in
the neck with a pen. Nearly three weeks later, Cherrone confessed to
police.
Cherrone was charged with murder, attempted robbery as a Class A
felony, and felony murder. A jury found him guilty of all three counts,
and the trial court entered judgment of conviction only for murder and
attempted robbery. Cherrone was sentenced to maximum consecutive terms
totaling 115 years imprisonment.
I. Admissibility of Juvenile Confession
Cherrone first contends that the trial court erred in admitting his
videotaped confession. Cherrone filed a motion to suppress the confession,
which the trial court denied after a hearing. Indiana Code § 31-32-5-1
sets forth specific requirements necessary for a valid waiver of state or
federal constitutional rights in cases involving a juvenile. The statute
provides in relevant part that these rights may be waived only:
(2) by the child’s custodial parent . . . if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the
child; and
(D) the child knowingly and voluntarily joins with the waiver.

Ind. Code § 31-32-5-1 (1998). We review a trial court’s ruling as to the
voluntariness of a waiver by looking to the totality of the circumstances,
considering only the evidence favorable to the State and any uncontested
evidence. Carter v. State, 686 N.E.2d 1254, 1257 (Ind. 1997). Indiana
Code § 31-32-5-4 provides that a review of the totality of the
circumstances in juvenile cases is to include consideration of the child’s
physical, mental, and emotional maturity; whether the child or parent
understood the consequences of the child’s statements; whether the child
and parent had been informed of the delinquent act; the length of time the
child was held in custody before consulting with his parent; whether there
was any coercion, force, or inducement; and whether the child and parent
were advised of the child’s right to remain silent and to the appointment
of counsel.
A detective met Cherrone at the Juvenile Probation Office and Cherrone
remained with the detective voluntarily for approximately an hour, during
which the police unsuccessfully attempted to locate his mother and then
telephoned his father and waited for his father to arrive at the police
station. After Cherrone’s father arrived at the police station, Cherrone
conversed with him for about fifteen minutes before the interview with
police began. Before initiating questioning, police advised both Cherrone
and his father that they wanted to discuss Cherrone’s knowledge of Shultz’s
murder. Police also read aloud and Cherrone and his father signed a waiver
of rights form that explained the right to remain silent, the right to talk
to a lawyer before and during questioning, the right to the appointment of
an attorney at no expense, and the right to stop questioning at any time.
The waiver also advised Cherrone that anything he told the police could be
used against him in court. After the waiver was signed, the detective
asked and received permission to speak to Cherrone outside his father’s
presence. After approximately thirty minutes of questioning, Cherrone
confessed to the murder.
A. Meaningful Consultation
Cherrone relies primarily on the statutory requirement that a
juvenile’s rights may be waived by his or her parents only after
“meaningful consultation” between the parent and juvenile. Ind. Code § 31-
32-5-1(2)(C). Specifically, he points to the following exchange between
Officer Reihl and Cherrone’s father after the waiver of rights form was
explained and signed.
Reihl: Would you mind if I talked to him privately
now or . . .?
Cherrone, Sr.: Sure.
Reihl: Would that be okay?
Cherrone, Sr.: Yeah.

Cherrone’s father then left the room, and Officer Reihl proceeded to
question Cherrone while his father waited outside. Cherrone contends by
denying him “the opportunity to meaningfully consult with his father post-
advisement and post-waiver his rights were violated and the confession was
rendered inadmissible.” Cherrone cites Foster v. State, 633 N.E.2d 337
(Ind. Ct. App. 1994), in support of this contention. As the Court of
Appeals observed in Foster:
The “meaningful consultation” requirement of the statute is “a matter
peculiar to juvenile waivers; it is a safeguard additional to those
requirements common to adult waivers—that they be knowingly,
voluntarily, and intelligently made.” The meaningful consultation
requirement may be satisfied by “actual consultation of a meaningful
nature or by the express opportunity for such consultation, which is
then forsaken in the presence of the proper authority by the juvenile,
so long as the juvenile knowingly and voluntarily waives his
constitutional rights.” The State bears the “heavy burden” of proving
that the meaningful consultation requirement has been met.

Id. at 347 (quoting Williams v. State, 433 N.E.2d 769, 772 (Ind. 1982))
(internal citations omitted) (emphasis in Williams). In Foster, the
detective orally advised the juvenile and his parents of his rights and
then informed the parents that they were entitled to a conference. See 633
N.E.2d at 348. After a forty-five minute conference, the detective
repeated the rights advisement and secured a written waiver signed by both
parents and the juvenile. See id. Although it appears that Foster’s
parents remained with him throughout the subsequent interview, the Court of
Appeals’ opinion in Foster in no way suggests that their presence was
required. Rather, the court observed that the waiver was executed after a
forty-five minute family consultation. “Thus, Foster was not only afforded
an opportunity for a meaningful consultation, an actual consultation
transpired.” Id.
Indiana Code § 31-32-5-1 imposes requirements before a juvenile and
his or her parent may affirmatively waive Miranda rights. Specifically,
subsection 2(C) requires a “meaningful consultation” before any rights may
be waived. We do not agree with Cherrone’s contention that it requires a
consultation after that waiver.[1]
B. Totality of the Circumstances
The totality of the circumstances surrounding Cherrone’s interview
with police also support the trial court’s conclusion that Cherrone’s
waiver was voluntary. Cherrone was sixteen years old at the time of the
confession and he points to nothing to suggest that his physical, mental,
or emotional maturity was any less than the average sixteen year old. He
was voluntarily with police for only an hour while waiting for his father
to arrive. His father was then present for a fifteen-minute conversation
after being advised of the nature of the investigation and before the
rights were explained to and waived by Cherrone and his father. Finally,
the police did not use any coercion, force, or inducement to secure the
waiver from either Cherrone or his father. In sum, all six statutory
factors support the trial court’s conclusion that Cherrone’s waiver of
rights was voluntary. The videotaped confession was therefore properly
admitted into evidence.[2]
II. Sufficiency of Evidence for Attempted Robbery
Cherrone argues that there is insufficient evidence to support his
conviction for attempted robbery. Specifically, he contends that there is
insufficient evidence to prove that he had the requisite intent to rob
Shultz when he entered Shultz’s home. When reviewing the sufficiency of
evidence to establish the elements of a crime—including the intent
element—we consider only the evidence and reasonable inferences drawn
therefrom that support the verdict. Heavrin v. State, 675 N.E.2d 1075,
1079 (Ind. 1996). We do not reweigh evidence or judge the credibility of
witnesses and will affirm the conviction if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Garrett v. State, 714 N.E.2d 618, 621 (Ind. 1999);
Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997).
Deskovich testified that on the evening of the murder she, Cherrone,
McCarthy, and Maike went to a convenience store near Shultz’s house because
they were hungry. However, they had no money. At the convenience store
Maike heard Cherrone say, “[W]e should go rob Mr. Schultz.” Maike did not
respond, and the two young men then started walking toward Shultz’s house.
Maike testified that, upon their arrival at Shultz’s house, Cherrone asked
if he could use the phone. Shultz retrieved a cordless phone, which he
handed to Cherrone who remained at the door. Cherrone pretended to dial
the phone and then, after a brief pause, “jumped in the door” at Shultz and
started beating him over the head with the phone. This evidence is
sufficient to support a reasonable inference that Cherrone intended to rob
Shultz and took a substantial step toward the commission of that crime.
III. Sentencing
As a final point, Cherrone contends that the imposition of
consecutive maximum sentences of sixty-five years for murder and fifty
years for attempted robbery is manifestly unreasonable.[3] 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.” Ind. Appellate Rule 17(B).
The trial court’s sentencing statement found aggravating and
mitigating circumstances relating both to the nature of the offense and the
character of the offender. The trial court observed that Cherrone knew
that the victim was ninety years-old, frail, and lived alone. The victim
was “brutally beaten and then was stabbed in the neck with a ballpoint pen
and left to die.” The trial court found these circumstances of the crime
to be a matter of “severe aggravation.” As regards the character of the
offender, the trial court observed that Cherrone was on probation for
underage consumption of alcohol at the time of this offense but also found
that Cherrone had suffered a difficult childhood and may have been under
the influence of alcohol on the night of the offense. Although not
expressly finding it to be a mitigating circumstance, the trial court also
mentioned Cherrone’s youthful age of sixteen.
We agree with the trial court’s view of the severe and disturbing
nature of the offense. Nonetheless, we view the imposition of maximum and
consecutive sentences for this sixteen-year-old offender who lacked a
significant history of criminal activity as manifestly unreasonable.
Accordingly, we remand this case to the trial court with direction to
impose concurrent sentences. Cf. Brown v. State, 720 N.E.2d 1157, 1159-60
(Ind. 1999) (remanding for imposition of concurrent sentences for a sixteen-
year-old offender); Carter v. State, 711 N.E.2d 835, 843 (Ind. 1999)
(finding maximum sentence for a fourteen-year-old offender manifestly
unreasonable).

Conclusion
Cherrone’s convictions are affirmed. This case is remanded to the
trial court with instructions to impose concurrent sentences.

SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.

DICKSON, J., concurs as to Parts I and II, dissents as to Part III,
and would affirm the trial court.

-----------------------
[1] Cherrone also makes a somewhat oblique suggestion that he was not
given the opportunity to have a meaningful consultation with his father
after they were advised of his rights but before waiver. Cherrone did not
argue in the trial court that a consultation is "meaningful" only if it
follows the advisement of rights. It is well settled that a party cannot
raise one ground in the trial court and a different ground on appeal. See
Wurster v. State, 715 N.E.2d 341, 347 (Ind. 1999). As explained above, the
consultation between Cherrone and his father occurred upon his father's
arrival at the police station--before the detective explained the rights
Cherrone and his father would be waiving. It appears that the usual, and
in our view the better, practice as described in Foster and more recent
cases that have come before this Court, see, e.g., Trowbridge v. State, 717
N.E.2d 138, 148 (Ind. 1999); Carter v. State, 686 N.E.2d 1254, 1258 (Ind.
1997), is to provide the consultation after advising the juvenile and his
or her parents of the rights to be waived. In Graham v. State, 464 N.E.2d
1 (Ind. 1984), Justice DeBruler joined by Justice Prentice in dissent
expressed the view that the statute requires that the consultation occur
after the advisement of rights "so that there is assurance that the
[parent and juvenile] know what is at stake in the waiver which police are
attempting to get . . . ." Id. at 11 (DeBruler, J., dissenting). We need
not decide whether Justice DeBruler's view that the statute requires the
consultation occur after the advisement but before the waiver of rights is
correct, because that issue was neither presented to the trial court nor
cogently argued on appeal. Nor, for the same reason, do we address whether
the other evidence in the case would render harmless any error in the
admission of the confession.
[2] Cherrone also points out that the videotape contained a sixteen-minute
conversation between him and his father that occurred after Cherrone was
arrested. He contends that this segment "was inadmissible and improperly
published to the jury." Because Cherrone did not object to this segment at
trial, any claim of error is waived. See Angleton v. State, 686 N.E.2d
803, 814 (Ind. 1997).
[3] Cherrone's argument focuses on the alleged improper balancing of the
aggravating and mitigating circumstances. He suggests, but fails to make a
cogent argument to support, error in the trial court's articulation of
aggravating and mitigating circumstances in its sentencing statement. For
example, Cherrone makes the following passing reference to mitigating
circumstances: "The record indicates that Cherrone was sorry for his
indiscretion, was responding to probation, and had been the victim of his
grandfather earlier in life." An allegation that the trial court failed to
identify or find a mitigating circumstance requires a 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).
Cherrone cites only the Presentence Report in support of these
contentions. The Presentence Report does not mention any remorse for the
killing, which is plainly not a mere "indiscretion." Moreover, the fact
that Cherrone committed the instant offenses while on probation contradicts
his assertion that he was responding to probation. Finally, the trial court
expressly found that Cherrone had "had some very hard things in [his] life
from what I read in the pre-sentence report . . . ." This presumably
addressed the abuse by his grandfather.