Legal Research AI

Laux v. State

Court: Indiana Supreme Court
Date filed: 2005-02-02
Citations: 821 N.E.2d 816
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Attorney for Appellant                       Attorneys for Appellee
C. Robert Rittman                                  Steve Carter
Marion, Indiana                                               Attorney
General of Indiana


                                             Nicole M. Schuster
                                        Deputy Attorney General
                                             Office of Attorney General
                                             Indianapolis, Indiana

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 27S00-0303-CR-104

Frederick A. Laux,
                                             Appellant (Defendant below),

                                     v.

State of Indiana
                                             Appellee (Plaintiff below).
                      _________________________________

         Appeal from the Grant Superior Court, No. 27D01-0202-MR-28
                    The Honorable Gary L. Thompson, Judge
                      _________________________________

                                Direct Appeal
                      _________________________________

                              February 2, 2005

SHEPARD, Chief Justice.

       A jury found appellant Frederick A. Laux  guilty  of  murder,  felony
murder and burglary resulting in bodily injury.  The court sentenced him  to
life without parole, plus twenty additional years for  the  burglary  count.
On appeal, Laux makes one claim warranting relief:  that a no-contact  order
was improperly incorporated into his sentence.  We otherwise affirm.


                        Facts and Procedural History


      In June 2001, Heidi Laux separated from her husband Fred  Laux,  moved
with  her  two  daughters  from  Anderson  to  Marion,  and  began   divorce
proceedings.  Soon thereafter, Laux also  relocated  to  Marion,  and  moved
into a house situated less than one mile from Heidi.  On November 19,  2001,
the divorce became final.  On the following  Valentines  Day,  February  14,
2002, Laux personally delivered a rose and card to Heidi  at  her  place  of
work.  Heidi gave the rose to a friend, disposed of the card, and told  Laux
what she did with his offerings.

      The next day, Heidi and Laux agreed to attend  a  dance  sponsored  by
Heidi’s employer.   Laux  had  the  daughters  for  weekend  visitation  and
brought them  with  him  to  the  dance.   During  the  dance,  Laux  became
increasingly suspicious that Heidi was  involved  with  a  co-worker.   Laux
left the dance around 8:00, went home, and played cards with  his  daughters
before going to bed.  Around 3 a.m. the following morning,  Laux  awoke  and
decided  to  “fix”  Heidi.   He  dressed  in  two  pairs  of  sweatpants,  a
sweatshirt, gloves, a hat, and a ski mask.  He collected a flashlight and  a
crowbar and ran to Heidi’s house.

      Upon arrival, Laux used the crowbar to pry open a coal chute and  gain
entrance to Heidi’s house.  He entered the basement through  the  chute  and
made his way upstairs.  Laux proceeded to Heidi’s bedroom, struck her  three
times with the  crowbar,  strangled  her,  and  left.   She  died  from  her
injuries within twenty minutes.

      The State charged Laux with murder,[1] felony murder,[2] and  burglary
resulting in bodily injury.[3]  It later requested a  sentence  of  life  in
prison without parole.  After a three-day trial, the jury found Laux  guilty
on all counts and recommended life in  prison  without  parole.   The  trial
court merged Laux’s murder and felony murder convictions and  sentenced  him
to life in prison without parole for the murder and a  consecutive  term  of
twenty years for the burglary.  It also ordered that Laux  was  to  have  no
contact with Heidi’s family.


                        I.  Constitutional Questions


      In an assortment of arguments,  Laux  contends  that  Indiana’s  death
penalty statute is unconstitutional because  the  jury  need  not  find  all
elements of the alleged crime.  More specifically, he contends that Ring  v.
Arizona, 536 U.S. 584 (2002), and the Sixth Amendment require  the  jury  to
find beyond a reasonable doubt that the aggravating factor(s)  outweigh  any
mitigating factors before  death  or  life  without  parole  (LWOP)  may  be
imposed.  Recently, we directly  addressed  his  contention  in  Ritchie  v.
State, 809 N.E.2d 258, 268 (Ind. 2004):

      [T]he Indiana  Death  Penalty  Statute  does  not  violate  the  Sixth
      Amendment as interpreted by Apprendi  and   Ring.   Once  a  statutory
      aggravator is found by a jury beyond a  reasonable  doubt,  the  Sixth
      Amendment as interpreted in Ring and Apprendi  is  satisfied.  Indiana
      now places the weighing process in the hands of  the  jury,  but  this
      does not convert the weighing process into an eligibility factor.  The
      outcome of weighing does not increase eligibility.  Rather,  it  fixes
      the punishment within the eligible range. It is therefore not required
      to be found by a jury under a reasonable  doubt  standard.  And  as  a
      matter of Indiana state law, under the Indiana death  penalty  statute
      the weighing process is not subject to a  reasonable  doubt  standard.
      That second step, consistent with the view we  expressed  in   Bivins,
      is in part a determination whether  to  impose  the  maximum  sentence
      allowed. That is an exercise  in  judgment  that  is  not  capable  of
      evaluation beyond a reasonable doubt, and our statute  properly  omits
      any standard by which it is to be measured.

Laux’s constitutional arguments failed on these grounds.




              II.  Appropriate Procedures for No-Contact Order


      As a part of Laux’s sentence, the trial court  ordered  him  to  cease
contact with Heidi’s family, including Heidi’s parents and Heidi and  Laux’s
children.  Laux contends that the inclusion of the order  was  improper  and
contravenes Indiana statutory law.   We agree.

      Indiana’s statutory sentencing  scheme  specifies  the  penalties  for
various classes  of  offenses  and  grants  trial  judges  some  discretion.
“While the judge is vested with broad discretion in sentencing, he must  act
within statutorily prescribed limits.”  Douglas v. State,  464  N.E.2d  318,
320 (Ind. 1984).

      The trial  court  sentenced  Laux  in  accordance  with  the  statutes
governing the crimes he committed.  The general penalty  for  murder  is  “a
fixed term at fifty-five (55) years, with  not  more  than  ten  (10)  years
added for  aggravating  circumstances  or  not  more  than  ten  (10)  years
subtracted for mitigating circumstances; in  addition,  the  person  may  be
fined not more than ten thousand dollars ($10,000).”  Ind. Code Ann.  §  35-
50-2-3(a) (West 1998).  Indiana’s death penalty statute, Indiana Code §  35-
50-2-9, authorizes either a sentence of death  or  life  in  prison  without
parole upon satisfying the requirements of the statute. Similarly, the  code
declares that the penalty for burglary as: “a fixed term of ten (10)  years,
with not more than ten (10) years added  for  aggravating  circumstances  or
not more than four (4) years subtracted  for  mitigating  circumstances;  in
addition, he may be fined not more than  ten  thousand  dollars  ($10,000).”
Ind. Code. Ann § 35-50-2-5 (West 1998).  By their own terms, these  statutes
do not authorize imposition of a no-contact order as  part  of  an  executed
sentence.   Had the court suspended part of the sentence for  either  crime,
of course, it  could  certainly  have  conditioned  that  suspension  on  no
contact.

      To be sure, the trial court was hardly  without  the  power  to  grant
protection  for  Heidi’s  family  and  the  children.    Indiana’s  statutes
provide a mechanism by which a victim may obtain a  no-contact  order.   The
legislature has created  a  variety  of  protective  arrangements,  recently
revised to meet the  various  circumstances  where  a  court  order  may  be
useful.  See Ind. Code Ann. § 5-2-9-5 (West 1998) (listing various forms  of
protection, along with statutory cites.)



                            III.  Double Jeopardy


      After the jury returned guilty  verdicts  on  all  three  counts,  the
trial court merged the murder and felony murder counts  and  sentenced  Laux
to life without parole for murder.  It imposed a consecutive term of  twenty
years for burglary as a class B felony.  Laux contends  that  this  sentence
violates double jeopardy principles.

      The Double Jeopardy Clause states that no  person  shall  be  “subject
for the same offence to be twice put in jeopardy of life  or  limb.”    U.S.
Const. amend.  V.  This clause “yields three  protections:   (1)  protection
from reprosecution for the same offense after an acquittal;  (2)  protection
from  reprosecution  for  the  same  offense  after  conviction;   and   (3)
protection from multiple punishments for  the  same  offense.”   Kennedy  v.
State, 674 N.E.2d 966, 967 (Ind. 1996) (citing  North  Carolina  v.  Pearce,
395 U.S. 711, 717 (1969) (overruled on other grounds)).

      Laux makes what we understand to be two separate arguments  under  the
rubric of double jeopardy.


      First, Laux argues that his conviction for both felony murder and  the
underlying felony violates double jeopardy because it  effectively  punishes
him twice for the same conduct. (Appellant’s Br. at  28-30).   Quoting  from
Kennedy, Laux argues that “a conviction and sentence for both felony  murder
and the accompanying felony violates double jeopardy because the  conviction
for murder while in the commission of  a  felony  could  not  occur  without
proof of the accompanying felony.” Id. at 967.

      Had Laux in fact been convicted and sentenced for  felony  murder,  he
would be entitled to relief.  This is not what occurred.   The  trial  court
merged the felony murder conviction and the  intentional  murder  conviction
and entered judgment only for the latter.  Under these circumstances,  there
is no double jeopardy violation.  Carter  v.  State,  750  N.E.2d  778,  781
(Ind. 2001) (stating that “a jury verdict on which the court did  not  enter
judgment for one reason  or  another  (merger,  double  jeopardy,  etc.)  is
unproblematic.”); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996)  (citing
to six other cases reaching  the  same  conclusion);  Moore  v.  State,  652
N.E.2d 53, 59-60 (Ind. 1995).[4]


      Second, Laux argues that his sentence violates double jeopardy because
the  burglary  was  considered  as  an  aggravating  circumstance   in   the
sentencing under Ind. Code § 35-50-2-9 (West 1998).  (Appellant’s  App.  28-
30).  We disagree.


      In Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), we observed  that
the “facts necessary to establish the (b)(1) aggravating circumstance  serve
to narrow the eligibility for the penalty  and  are  not  identical  to  the
elements of the crime.” Id. at 1165 (citing West v. State, 755  N.E.2d  173,
186 (Ind. 2001)).  Because the felonies  listed  in  Ind.  Code  §  35-50-9-
2(b)(1) are not elements of the crime, but  rather  a  list  of  permissible
aggravators, they essentially  serve  a  function  analogous  to  sentencing
enhancements.   The  statute  thus  indicates   only   what   felonies   are
permissible to consider in imposing life without parole.


      We have already implicitly accepted that sentencing aggravators do not
constitute double jeopardy violations.  In Bivins v. State, 642  N.E.2d  928
(Ind. 1994), we let stand both  a  death  sentence,  and  a  conviction  and
sentence for robbery that was used as an  aggravator  in  sentencing  Bivins
under the death penalty statute. Id. at 949.  In  Bivins,  the  only  double
jeopardy violation we found to exist was the  sentence  and  conviction  for
theft  that  was,  itself,  a  lesser  charge  contained  in   the   robbery
conviction. Id.


      The Supreme Court has repeatedly held that courts  may  consider  past
and concurrent criminal conduct in enhancing sentences.  In Witte v.  United
States, 515 U.S. 389 (1995), the Court reiterated that the “use of  evidence
of related  criminal  conduct  to  enhance  a  defendant’s  sentence  for  a
separate crime  within  authorized  statutory  limits  does  not  constitute
punishment for that conduct  within  the  meaning  of  the  Double  Jeopardy
Clause.” Id. at 399.  In so doing, the Court upheld  the  “taking  [of]  the
circumstances surrounding a particular  course  of  criminal  activity  into
account in sentencing for a  conviction  arising  therefrom.”  Id.  at  400.
Similarly, the Court has upheld the consideration in sentencing  of  conduct
underlying criminal charges of  which  the  defendant  was  acquitted.  See,
e.g., United States v. Watts, 519 U.S. 148, 152-54 (1997)  (per  curiam).[5]
In the context of double jeopardy, then, Ind. Code  §  35-50-9-2(b)(1)  does
nothing more than restrict the scope of  the  trial  court’s  discretion  in
considering the circumstances surrounding a  crime  to  the  examination  of
those specifically listed in the statute.


      We acknowledge that  Woods  v.  State,  547  N.E.2d  772  (Ind.  1989)
concluded that a sentence for robbery violated double jeopardy when  it  was
used as an aggravator to sentence  the  defendant  to  death.  Id.  at  795.
However, Woods reached  this  conclusion  based  on  the  premise  that  the
“commission of  a  robbery  is  an  essential  element  of  the  aggravating
circumstance  of  committing  an  intentional  killing  in  the  course   of
committing a robbery.”  Id.   We  have  since  rejected  this  view  of  the
aggravating factors listed in Ind. Code § 35-50-2-9,  see,  Overstreet,  783
N.E.2d at 1164-65, and therefore believe  that  insofar  as  it  relates  to
double jeopardy, Woods was flawed.


      Because “taking  into  account  conduct  related  to  the  offense  of
conviction in sentencing is not the same  thing  as  holding  the  defendant
criminally culpable for that conduct,” United States v. Dawn, 129 F.3d  878,
884 (7th Cir. 1997), and because the (b)(1) aggravators are not elements  of
a crime, we conclude that the use of the class B burglary conviction  as  an
aggravating factor in sentencing Laux to life without  parole,  as  well  as
the sentencing of Laux to life without  parole  and  twenty  years  for  the
burglary, did not violate the principles of double jeopardy.[6]



                 IV. Laux’s Request for Sentencing Revision


      On October 24, 2003, we remanded this case to the trial  court  for  a
new sentencing order that complies with the requirements of Indiana  Code  §
35-50-2-9. (Appellant’s Supp. App. at 18-20). See, Harrison  v.  State,  644
N.E.2d 1243, 1262 (Ind. 1995) (section 9 requires judicial sentencing  order
specifying aggravating and mitigating circumstances and  articulating  facts
in support of each); Ajabu v. State, 693 N.E.2d 921, 940 (Ind.  1998)  (same
requirements apply for LWOP sentencing order).  Our order read  in  relevant
part:  “The appellant is also to file any  supplemental  brief  raising  new
claims of error associated with the revised sentencing order  within  forty-
five  days  from  the  date  the  revised  sentencing  order  is   entered.”
(Appellant’s Supp. App. at 19).


      In his supplemental brief, Laux requests that we revise  his  sentence
of life in prison. (Appellant’s Supp. Br. at 8-9).   In  2002,  the  General
Assembly altered in important ways the relative  roles  of  judge  and  jury
under Indiana Code § 35-50-2-9, effective for  sentencings  conducted  after
June 30, 2002.  We have not yet resolved the effect of these  amendments  on
the sentencing role  of  the  trial  judge,  the  present  requirements  for
sentencing orders, or the standard of appellate review.   The  parties  have
not argued any issues arising from the 2002  amendments.   We  thus  reserve
judgment on such questions and pursuant to paragraph number 3 of our  remand
order, we review Laux’s claim on the merits.


       Indiana Code § 35-50-9-2(l) provides that  before  life  imprisonment
without parole may be imposed as a sentence the jury must  find  that:  “(1)
the state has  proved  beyond  a  reasonable  doubt  that  one  (1)  of  the
aggravating circumstances listed in  subsection  (b)  exists:  and  (2)  any
mitigating circumstances  that  exist  are  outweighed  by  the  aggravating
circumstance or circumstances.”


      On remand, the trial court’s sentencing order clearly identifies  that
one of the aggravating factors listed in subsection (b) was proven beyond  a
reasonable doubt. Specifically, the trial court found  that  the  state  had
proven the aggravating factor provided in Ind.  Code  §  35-50-9-2(b)(1)(B):
that the “defendant  committed  the  murder  by  intentionally  killing  the
victim while  committing  or  attempting  to  commit  .  .  .  .  Burglary.”
(Appellant’s Supp. App. at  7)(the  court  specifically  found  “[t]hat  the
state proved beyond a reasonable doubt  that  the  Defendant  committed  the
murder while committing burglary.”).[7]   The  trial  court  further  stated
that the State had proven that the  killing  was  intentional.  (Appellant’s
Supp. App. at 8-9).  This is sufficient to satisfy the  general  requirement
that the state prove beyond a reasonable doubt the  existence  of  at  least
one aggravating factor.[8]


      As for the court’s finding that the aggravating factor  outweighs  any
mitigating factors, Laux contends that the  single  aggravator  charged  was
insufficient to support his sentence  given  the  finding  of  a  mitigating
factor.[9] (Appellant’s Supp Br. at 5-8).  Specifically,  Laux  argues  that
his  lack  of  significant  prior  criminal  history  outweighs   the   sole
aggravator. Id.  We do not agree.

      Although the trial court did find as a  mitigating  factor  that  Laux
lacked a significant prior criminal history (Apppellant’s Supp. App. at  9),
the court was under no obligation  to  assign  that  factor  any  particular
weight.  As we have previously held, it is “the decision of the trial  court
to decide what weight mitigating  factors  are  to  be  given.”  Kingery  v.
State, 659 N.E.2d 490, 498 (Ind.  1995).   See  also  Bunch  v.  State,  697
N.E.2d 1255, 1258 (Ind. 1998).  In this case,  the  trial  court  considered
Laux’s lack of prior criminal history,  but  in  balancing  the  aggravating
factor  with  this  mitigating  factor  concluded  that  “the  breaking  and
entering of the victim’s home at approximately 3:00 a.m. with the intent  to
commit battery with a deadly  weapon,  is  so  onerous  that  it  completely
outweighs the mitigating circumstance.” (Appellant’s Supp. App. at  9).   In
short, as Justice Boehm once  wrote,  the  trial  court  did  what  “it  was
entitled to do,” it “considered [Laux’s] lack of prior criminal history  but
declined to accord it significant weight.” Bunch, 697 N.E.2d at 1258.

      The record supports the trial court’s conclusion that  the  aggravator
outweighed any mitigating circumstances.  Laux woke up in the middle of  the
night believing that he had to “fix” – murder – his ex-wife.   In  order  to
accomplish that goal, he dressed himself in dark clothes  and  a  put  on  a
dark face mask.  He then ran to his ex-wife’s home and broke into  her  home
through the basement in the dead of night.  Laux entered her  bedroom  where
she was sleeping and struck her three times  in  the  head  with  a  crowbar
before he finally strangled her.  Laux then returned home and took steps  to
conceal his crime, both from his daughters, whom he had left alone in  order
to commit the murder, and the police.


      Given the brutality of the crime, a  brutality  which  Laux’s  counsel
appropriately acknowledges,  (Appellant’s  Supp.  Br.  at  8),  we  are  not
persuaded that the trial court and the jury were wrong  in  concluding  that
the high culpability embodied in the  single  aggravator  outweighed  Laux’s
lack of prior criminal history.


      Laux also requests that we reduce his sentence in order to  “bring  it
into line with the interests of justice.”  (Appellant’s  Supp.  Br.  at  9).
Indiana Appellate Rule  7(B)  permits  this  Court  to  “revise  a  sentence
authorized by statute if, after  due  consideration  of  the  trial  court's
decision, the Court finds that the sentence is  inappropriate  in  light  of
the nature of the offense and the character of the offender.”

      In making this request, Laux points out that he has “no  prior  record
of any criminal offenses or history of  violent  acts,”  that  he  has  been
“consistently employed since of the age of 15,” that he  performed  well  in
school and received a degree from Purdue University, and  that  this  “crime
is  an  aberration  on   an   otherwise   responsible,   caring,   peaceful,
hardworking, and honest life.” (Appellant’s Supp. Br. at 9).  Laux  requests
that we give consideration to his expression of remorse  at  the  sentencing
hearing. Id.

      Although we agree that Laux’s lack of criminal  history,  work  ethic,
educational achievement, and  remorse  have  value;  we  cannot  ignore  the
brutality of the  crime  that  he  committed.    In  light  of  all  of  the
circumstances surrounding Laux’s  crime,  we  are  not  persuaded  that  the
sentence is inappropriate.




                                 Conclusion


      We vacate the no-contact order, but affirm in all other respects.

Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., dissents from Part I of the majority opinion
  for the reasons expressed in Ritchie v. State, 890 N.E.2d
  258, 271-74 (Ind. 2004) (Rucker, J., dissenting in part).
  In all other respects I fully concur.
Sullivan, Justice, dissenting.

      I respectfully dissent in two respects from the Court’s opinion.



                                      I



      I believe the trial court acted within its discretion in  entering  an
order prohibiting Laux from contacting  Heidi’s  family,  including  Heidi’s
parents  and  Heidi’s  and  Laux’s  children.   Under  the   Indiana   Civil
Protection  Order  Act,  Ind.  Code  §  34-26-5-1  (2004)   et   seq.,   and
particularly Ind. Code § 34-26-5-9(b)(2), a court  is  authorized  to  order
the relief that the trial court ordered here.  Indeed, the Act  specifically
contemplates that its relief can be entered in conjunction with  a  criminal
case.  Ind. Code  §  34-26-5-6(1)  &  (4)  (2004).   The  Court’s  rationale
appears to be that the persons protected by the order here did  not  request
it in the form specified in the Act.  However,  there  is  no  question  but
that they sought the protection granted (after  sentencing,  Heidi’s  father
expressed his gratitude to the trial court for the order (Tr. at  597))  and
also no due process concerns; the evidence that caused the  trial  court  to
enter the order was presented in open court and Laux had a chance to  defend
against it.  (Tr. at 503, 505, 528, 529, 530-31, 533-34.)   Given  that  the
parties benefiting from the relief  granted  desired  the  relief  and  that
Laux’s due process rights were not  violated,  I  believe  the  trial  court
acted within its discretion in  entering  an  order  prohibiting  Laux  from
contacting Heidi’s family.



                                     II



      The Court reviews Laux’s request that the  sentence  of  life  without
parole be revised.  The Indiana  Constitution  provides  that  “the  Supreme
Court shall have, in all appeals of criminal cases, the power to review  and
revise the sentence  imposed.”  Ind.  Const.  art.  VII,  §  4.   Our  rules
authorize revision of a sentence “if, after due consideration of  the  trial
court’s decision, the Court finds that  the  sentence  is  inappropriate  in
light of the nature of the offense  and  the  character  of  the  offender.”
Ind. Appellate Rule 7(B).  Unlike the Court, I would grant limited relief.


      I turn first to “consideration of the trial court’s decision.”


      When imposing a sentence of life without parole, the  same  heightened
standards used in death penalty cases apply.  Ajabu  v.  State,  693  N.E.2d
921, 936 (Ind. 1998) (“The statute provides  that  life  without  parole  is
imposed  under  the  same   standards   and   is   subject   to   the   same
requirements.”),  after  remand,  722  N.E.2d  339  (Ind.  2000);  see  also
Ind.Code § 35-50-2-9 (2004).  Because a sentence of life in  prison  without
parole is imposed under the same standards as the death penalty, we  require
the same specificity from a trial court sentencing a defendant  to  life  in
prison without parole as we would a court  sentencing  a  person  to  death.
Ajabu, 693 N.E.2d at 936.  Neither Ring v. Arizona,  536  U.S.  584  (2002),
and Apprendi v. New  Jersey,  530  U.S.  466  (2000)  nor  recent  statutory
changes1 lessen these requirements.  Brown v. State, 783 N.E.2d  1121,  1127
(Ind. 2003).


      As the Court points out, after briefing on this case was completed, we
remanded this case to the trial court for a  new  sentencing  order  because
the one originally entered by the trial court  did  not  comply  with  these
requirements.  As the Court also  points  out,  the  trial  court’s  revised
sentencing order is sufficient to satisfy the general requirement  that  the
trial court find  that  the  state  prove  beyond  a  reasonable  doubt  the
existence of at least one aggravating circumstance.   It  is  certainly  the
case that a  proper  statutory  aggravating  circumstance  was  charged  and
submitted to the jury (“the  defendant  committed  murder  by  intentionally
killing the victim while committing burglary”).  The  jury  found  that  the
State had met its burden of proof beyond a  reasonable  doubt.   I  conclude
that the State has proven beyond a reasonable doubt that  at  least  one  of
the aggravating circumstances listed in the statute exists.  See  Ind.  Code
§ 35-50-2-9(k)(1) (1998).  As  such,  I  believe  the  sentence  imposed  is
authorized by law.  Furthermore,  given  the  nature  of  Laux’s  attack  on
Heidi, I would assign this aggravating circumstance weight  in  the  highest
range.


      However, in my view, the mitigating circumstances present in this case
are such as to warrant a sentence less than life without parole.  The  trial
court itself found that Laux had “no significant history of  prior  criminal
conduct.”  Indeed, there is absolutely nothing of  record  to  suggest  that
Laux ever had any difficulty with the law whatsoever—either  as  a  juvenile
or an adult.  In my view, absence of criminal history is the  weightiest  of
all mitigating circumstances.  One who has conformed his or her  conduct  to
the dictates of our society is entitled to consideration upon  committing  a
first offense.  Laux maintained a blemish-free legal history throughout  his
childhood and adulthood.  The record  indicates  that  following  graduation
from high school and Purdue University, Laux was hard-working,  honest,  and
responsible.  Under these  circumstances,  I  would  assign  weight  to  the
absence of any prior criminal history in the highest range.


      Laux clearly was unable to deal with the  separation  from  Heidi  and
must  face  severe  consequences  as  a  result  of  his  terrible,  violent
behavior.  It appears  that  he  recognizes  that  fact  and  has  expressed
sincere remorse.  The aggravating circumstance here is  weighty  indeed  but
in my view does not outweigh the mitigating circumstance.  In light  of  the
nature of the offense and character of the  offender,  I  would  revise  the
sentence imposed to 65 years in prison.

-----------------------
[1] Ind. Code Ann. § 35-42-1-1 (West 1998).

[2] Ind. Code Ann. § 35-42-1-1(2) (West 1998).

[3] Ind. Code Ann. § 35-43-2-1 (West 1998).

[4] The Court of Appeals recently held otherwise, declaring that a trial
court must “vacate” a jury finding on a felony murder charge that was
merged into a separate murder charge. Wilder v. State, 813 N.E.2d 788, 793-
94 (Ind. Ct. App. 2004).  To the extent that Wilder indicates that vacating
a jury verdict is the appropriate remedy rather than merger and entering a
judgment of conviction only on the merged count, we disapprove it.
[5] It has been noted that the recent case Blakely v. Washington, -- U.S. --
, 124 S.Ct. 2531 (2004) might call into question Watts. See, United States
v. Olivera-Hernandez, 328 F.Supp.2d 1185, 1187 (D. Utah, 2004)(speculating
that a “Blakely-type holding striking down the Sentencing Guidelines would
arguably require the Supreme Court to strike down [Watts as well as other
cases].” While this may be true, we are as yet unsure of the reach of
Blakely.  Moreover, we believe that in the narrow context of the
application of Indiana’s death sentence/life without parole statute to
Laux, Blakely poses no problem since the sentencing aggravators must be,
and were, found by a jury beyond a reasonable doubt.
[6] Indeed, logic requires that we reach this conclusion because if we
found that consideration of criminal conduct in enhancing sentences
violated double jeopardy, we would necessarily invalidate all habitual
offender enhancements. This is an approach plainly rejected by the Supreme
Court. See, e.g., Witte v. United States, 515 U.S. 389, 409  (1995); Schiro
v. Farley, 510 U.S. 222, 230-31 (1994).
[7] At the original sentencing portion of the trial, the jury also found
that the murder was intentional, committed during a burglary, and that the
aggravator outweighed the mitigating circumstances. (TR. at 580).

[8] In Clark v. State, 808 N.E.2d 1183, 1194-95 (Ind. 2004) we stated that
“[n]either intentional nor, as the trial court found, ‘premeditated’
killing is a statutory aggravating factor under the death penalty statute.”
The issue in Clark, however, was whether or not intentionality standing
alone was an aggravating factor. In this case, the plain language of Ind.
Code § 35-50-2-9(b)(1) indicates that intentionality is a partial factor if
the murder occurred during the commission or attempted commission of one of
the enumerated felonies.
[9] Laux also contends that he was under the influence of extreme mental or
emotional distress at the time he murdered his ex-wife. (Appellant’s Supp
Br. at 6-8). The trial court, however, gave careful consideration to the
psychological pre-sentencing reports submitted by Dr. George M. Parker,
M.D., and Dr. Velma Jean Atkinson, Ph.D. The court concluded that the
contradictory reports did not establish that at the time of the murder Laux
was under extreme emotional or mental distress. (Appellant’s Supp. App. at
8-9).  The court reached this conclusion even after accepting,
hypothetically, the diagnosis of Dr. Parker who concluded that at the time
of the murder Laux was suffering from “moderately severe major depression.”
Id.  The court also noted that Dr. Parker’s report concluded that there was
“no evidence the depression impaired the Defendant’s functional ability.”
Id. at 8.
      Given the evidence in the record, and the evaluation of the trial
court of that evidence, we cannot say that the trial court erred in finding
that Laux was not under the influence of extreme mental or emotional stress
at the time of the murder. See, Clark v. State, 808 N.E.2d 1183, 1195 (Ind.
2004) (the “finding of mitigating factors is within the trial court’s
discretion.”); Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (“the
trial court is not required to regard the defendant’s evidence as
mitigating simply because the defendant does.”).
1 “If the jury reaches a sentencing recommendation, the court shall
sentence the defendant accordingly.”  Pub. L. No. 117-2002, § 35-50-2-9(e)
(2004).