McCann v. State

ATTORNEY FOR APPELLANT

Amy L. Dell
Indianapolis, Indiana





ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

James B. Martin
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

MARIO McCANN,                     )
                                  )
      Appellant (Defendant Below), )    Indiana Supreme Court
                                  )     Cause No. 49S05-0104-CR-209
            v.                    )
                                  )     Indiana Court of Appeals
STATE OF INDIANA,                 )     Cause No. 49A05-0002-CR-43
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Cale J. Bradford, Judge
                       Cause No. 49G03-9708-CF-127103
__________________________________________________________________


                           ON PETITION TO TRANSFER

__________________________________________________________________

                                June 20, 2001

BOEHM, Justice.
      We hold that the pregnancy of a victim, like  any  other  circumstance
that may extend the harm  inflicted  by  a  crime,  may  be  an  aggravating
circumstance in sentencing whether or not the perpetrator is aware that  the
victim is pregnant.

                      Factual and Procedural Background

      On August 2, 1997, Mario McCann visited A.L.  and  Anthony  Dozier  at
their home.  After McCann left, A.L. went upstairs, fell asleep,  and  awoke
to find McCann in her bedroom.  McCann told A.L. he had a gun and would  use
it if she did not remain silent.  He attempted to pull  off  her  bedcovers,
touched her breasts, and then told her, “shut  up,  it  wouldn’t  take  very
long, and then he’d leave [A.L.] alone.”  At that point, Dozier entered  the
bedroom.  A fight ensued and McCann  shot  Dozier  in  the  chest  and  fled
through the bedroom window.  Both A.L. and Dozier identified McCann  from  a
thirty-two person  photo  array.   McCann  was  arrested  and  charged  with
attempted murder, burglary, and attempted rape.
      McCann was found guilty on all charges and sentenced  to  fifty  years
for  attempted  murder  and  a  consecutive  sentence  of  fifty  years  for
burglary.  A concurrent sentence of fifty years was  imposed  for  attempted
rape.  On direct appeal, he contended that:  (1) the  photo  array  and  in-
court  identification  were  unduly  suggestive;  (2)  the  State  committed
prosecutorial misconduct; (3) the trial court gave an erroneous  instruction
on attempted rape; and (4) the  trial  court  erred  in  sentencing  him  to
maximum, consecutive  sentences  for  his  crimes.   The  Court  of  Appeals
affirmed his convictions, but remanded to the trial court for  resentencing.
 McCann v. State, 742 N.E.2d 998 (Ind. Ct. App. 2001).  We granted  transfer
to address the sentencing issue.
      McCann  challenges  his  sentence   as   “excessive   and   manifestly
unreasonable.”  He raises a number of statutory  issues  and  also  contends
that the sentence was manifestly unreasonable under Indiana  Appellate  Rule
7(B).   As  this  Court  has  previously  noted,  “These  are  two  separate
inquiries reviewed under different standards.”  Noojin v. State, 730  N.E.2d
672, 678 (Ind. 2000); accord Hackett v. State, 716  N.E.2d  1273,  1276  n.1
(Ind. 1999).

                            I.  Sentencing Error

      As procedural error,  McCann  contends  that:   (1)  the  trial  court
considered improper aggravating circumstances; (2) the  trial  court  failed
to consider mitigating circumstances clearly supported by  the  record;  and
(3)  the  trial  court  did  not  balance  the  aggravating  and  mitigating
circumstances.  The trial court found four aggravating  circumstances:   (1)
McCann’s prior criminal history, (2) prior  attempts  to  rehabilitate  were
unsuccessful, (3) the injuries to Dozier resulted in  permanent  impairment,
and (4) the nature and circumstances of the crime including  that  A.L.  was
pregnant at the time of the attack and that  the  crimes  involved  multiple
victims.  The  trial  court  found  no  mitigating  circumstances  and  then
imposed maximum sentences on all three counts, two of which  it  ordered  to
be served consecutively.
      On  direct  appeal,  the  Court  of  Appeals   determined   that   the
“rehabilitation” and “nature and  circumstances”  aggravating  factors  were
improperly   considered,    and    that    McCann’s    claimed    mitigating
circumstances—his abusive childhood and the hardship that  would  result  to
his child from his incarceration—were  not  required  to  be  considered  as
mitigating circumstances.  The case was  remanded  to  the  trial  court  to
balance the two remaining aggravating circumstances and  resentence  McCann.
McCann, 742 N.E.2d at 1007.  Judge Vaidik  dissented,  concluding  that  the
“nature and circumstances” aggravating  factor,  specifically  the  victim’s
pregnancy, was properly considered by the trial court.  Id.  at  1009.   She
also disagreed with the majority’s decision to remand the  case.   She  took
the view that  because  a  single  aggravating  circumstance  is  enough  to
support enhanced and consecutive  sentences,  and  there  were  three  valid
aggravating circumstances in this case, the sentence should be affirmed.
      In general, sentencing determinations are  within  the  trial  court’s
discretion and are governed by Indiana Code section 35-38-1-7.1.  Harris  v.
State, 659 N.E.2d 522,  527  (Ind.  1995).   If  a  trial  court  relies  on
aggravating  or  mitigating  circumstances  to   enhance   or   reduce   the
presumptive sentence, it must:  (1) identify all significant mitigating  and
aggravating  circumstances,   (2)  state  the  specific  reason   why   each
circumstance  is  determined  to  be  mitigating  or  aggravating,  and  (3)
articulate  the  court’s  evaluation  and  balancing   of   the   identified
circumstances.  Id. at 527-28.
      First, McCann challenges the  trial  court’s  finding  of  aggravating
circumstances.  We agree with  the  Court  of  Appeals  that  both  McCann’s
criminal  history  and  Dozier’s   permanent   impairment[1]   were   proper
aggravators.   McCann’s  criminal  history  is   a   statutory   aggravating
circumstance and was properly considered.   Ind.  Code  §  35-38-1-7.1(b)(2)
(1998).  The serious  nature  of  a  victim’s  injuries  is  also  a  proper
aggravator.  Aguirre v. State, 552 N.E.2d 473,  476  (Ind.  1990);  Lang  v.
State, 461 N.E.2d 1110, 1113 (Ind. 1984).
      The trial court also found “that prior attempts  to  rehabilitate  the
defendant have been unsuccessful.”  It is not entirely  clear  whether  this
is simply a restatement of the fact that McCann had a  criminal  record,  or
was  a  reference  to  the  statutory  aggravating  circumstance  that   the
defendant is “in need of correctional or rehabilitative treatment  that  can
best be provided by commitment of the person to a penal facility.”   I.C.  §
35-38-1-7.1(b)(3).  If the former, it is cumulative and, if the  latter,  we
agree with the Court of Appeals that, because  the  trial  court  failed  to
explain why incarceration beyond the presumptive sentence was necessary,  it
improperly considered prior attempts at  rehabilitation  as  an  aggravating
circumstance.
      We  disagree  with  the  Court  of  Appeals  that  the  trial  court’s
consideration of the nature and circumstances of  the  crime  was  improper.
The Court of Appeals took the view that this  was  an  improper  aggravating
circumstance for two reasons.  First, it relied on elements of  the  offense
to enhance the sentence.  Second, the Court  of  Appeals  held  that  A.L.’s
pregnancy, because it was “a fact apparently unknown to McCann,” was  not  a
proper aggravating circumstance.
      Generally, the “nature and circumstances”  of  a  crime  is  a  proper
aggravating circumstance.  Thacker v. State, 709 N.E.2d 3, 10  (Ind.  1999).
Even if the trial court relied on an improper factor under this  aggravating
circumstance, the sentence  may  be  upheld  so  long  as  “[t]he  remaining
components of that aggravator were proper.”  Angleton v. State,  714  N.E.2d
156, 160 (Ind. 1999).
      Under “nature and circumstances,” the trial court stated,  “the  facts
of this case  are  particularly  aggravating.   The  case  involves  a  home
invasion of a residence for the purpose of committing  the  crime  of  rape.
That the defendant attempted the rape of [A.L.] in  this  matter  while  she
was pregnant.  And that these offenses  or  this  series  of  acts  involves
multiple victims.”  The Court of Appeals was correct that  the  trial  court
may not use “a factor constituting a material element of an  offense  as  an
aggravating circumstance.”  Spears v. State, 735  N.E.2d  1161,  1167  (Ind.
2000).  However, in this case, in  addition  to  elements  of  the  burglary
offense, the trial court  relied  on  the  fact  that  there  were  multiple
victims and on A.L.’s pregnancy.  Injury to multiple victims has been  cited
several  times  by  this  Court  as  supporting  enhanced  and   consecutive
sentences.  Walton v. State, 650 N.E.2d  1134,  1137  (Ind.  1995)  (listing
multiple killings as a “non-statutory aggravating circumstance”); cf.  Tobar
v. State, 740 N.E.2d 109, 113 (Ind. 2000); Noojin v. State, 730 N.E.2d  672,
679 (Ind. 2000).
      The Court of Appeals also found erroneous the  trial  court’s  finding
that the victim’s pregnancy was an aggravating circumstance.  We agree  with
Judge Vaidik that pregnancy is similar  to  the  infirmity  or  age  of  the
victim in that the defendant’s  knowledge  of  these  circumstances  is  not
necessary for them to qualify as aggravating.  See  Stevens  v.  State,  691
N.E.2d 412, 431-33 (Ind. 1997).  To  be  sure,  knowledge  of  the  victim’s
vulnerability adds to the culpability of the  perpetrator,  but  aggravating
circumstances turn on  the  consequences  to  the  victim  as  well  as  the
culpability of  the  defendant.   Id.   This  understanding  of  aggravating
circumstances  comports  with  the  Black’s  Law  Dictionary  definition  of
aggravation:  “[a]ny circumstance attending the commission of a crime . .  .
which increases its guilt or enormity or adds to its injurious  consequences
. . . .”  Black’s Law Dictionary 60 (5th ed. 1979).
      McCann also challenges the trial court’s failure to find  his  abusive
childhood and the hardship that will result to his child from  incarceration
as mitigating circumstances.  The finding  of  mitigating  circumstances  is
within the discretion of the trial court.  Legue v. State, 688  N.E.2d  408,
411 (Ind. 1997).  An allegation that the trial court failed to  identify  or
find a mitigating circumstance requires the 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).  The trial  court
is  not  obligated  to  accept  the  defendant’s  contentions  as  to   what
constitutes a mitigating circumstance.  Legue, 688 N.E.2d at 411.   McCann’s
claims that “nobody really liked [him]” as a child and that he “got beat  up
a lot” are not significant examples of an abusive  childhood.   McCann  does
not explain how his incarceration for maximum,  consecutive  sentences  will
result in more hardship to his  daughter  than  his  incarceration  for  the
presumptive or minimum sentence.  Battles v. State, 688  N.E.2d  1230,  1237
(Ind. 1997).  We agree with the Court of Appeals that the  trial  court  did
not abuse its discretion in failing to find these factors as mitigating.
      Finally, McCann contends that the trial court improperly  weighed  the
aggravating and mitigating circumstances.  The  Court  of  Appeals  remanded
this case to the trial court because “it is unclear what  weight  the  trial
court assigned to each designated aggravator, . .  .  there  are  now  fewer
valid aggravating circumstances to consider, [and]  ‘we  are  not  persuaded
that the original sentence would have been the same had the trial court  not
relied on . .  .  impermissible  factors.’”   McCann,  742  N.E.2d  at  1007
(quoting Bluck v. State, 716 N.E.2d 507, 515  (Ind.  Ct.  App.  1999)).   We
disagree.  This Court has many times  noted  that  “[a]  single  aggravating
circumstance is enough to  justify  an  enhancement  or  the  imposition  of
consecutive sentences.”  Williams  v.  State,  690  N.E.2d  162,  172  (Ind.
1997).  However, we will remand for  resentencing  if  we  cannot  say  with
confidence that the trial court would have imposed the same sentence  if  it
considered the proper aggravating and mitigating circumstances.  See  Wooley
v. State, 716 N.E.2d 919, 933 (Ind. 1999); Angleton  v.  State,  686  N.E.2d
803, 817 (Ind. 1997).   In  this  case,  although  one  of  the  aggravating
circumstances was improper,  there  were  no  mitigating  circumstances  and
three other valid aggravating  circumstances,  including  McCann’s  criminal
history.  Given these factors, we can say with  confidence  that  the  trial
court would have imposed  the  same  sentence,  even  without  the  improper
aggravating  circumstance.   Accordingly,  there  is  no  procedural   error
requiring reversal or remand for resentencing.

                        II.  Manifestly Unreasonable

      McCann also claims  that  his  sentence  is  manifestly  unreasonable.
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.”  Carter v. State, 711  N.E.2d  835,  841
(Ind. 1999); Ind. Appellate Rule 7(B).  This review is  deferential  to  the
trial court:  “[T]he issue is not whether in our judgment  the  sentence  is
unreasonable, but  whether  it  is  clearly,  plainly,  and  obviously  so.”
Spears v. State, 735 N.E.2d 1161, 1168 (Ind.  2000);  Brown  v.  State,  698
N.E.2d 779, 783-84 (Ind. 1998); Bunch v. State, 697 N.E.2d 1255, 1258  (Ind.
1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)).
      The “nature of the offense” is  breaking  into  a  home  to  attack  a
pregnant woman in her bed and then shooting her boyfriend when he  tried  to
come to her aid.  Under “character of the offender,” McCann  had  a  lengthy
criminal history including over  fifteen  arrests,  one  of  which  was  for
breaking into a woman’s house and  sexually  assaulting  her.   In  view  of
these factors, the trial court’s imposition  of  the  enhanced,  consecutive
sentences was not “clearly, plainly, and obviously” unreasonable.

                                 Conclusion

      The sentence imposed by the trial court is affirmed.  As to all  other
issues, the Court of Appeals is summarily  affirmed.   Ind.  Appellate  Rule
58(A)(2).

      SHEPARD, C.J, and DICKSON and RUCKER, JJ., concur.
      SULLIVAN, J., concurs as to Part I and dissents as to Part II.
-----------------------
[1] Dozier was shot in the chest. The bullet pierced his lung.   The  injury
caused him to miss work for an extended period of time and still  interferes
with his breathing.