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Merlington v. State

Court: Indiana Supreme Court
Date filed: 2004-08-31
Citations: 814 N.E.2d 269
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Attorney for Appellant                       Attorneys for Appellee
Travis Jay Merlington, Pro Se                            Steve Carter
                                             Attorney General of Indiana

                                             Nicole M. Schuster
                                             Deputy Attorney General
                                             Indianapolis, Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                           No. 20S03-0401-CR-00013

Travis Jay Merlington
                                               Appellant (Appellant below),

                                     v.

State of Indiana
                                                Appellee (Appellee below).
                      _________________________________

        Appeal from the Elkhart Circuit Court, No. 20C01-0111-CF-130
                    The Honorable Terry Shewmaker, Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 20A03-0211-
                                   CR-377
                      _________________________________

                               August 31, 2004

Sullivan, Justice.

      Defendant  Travis  Jay  Merlington  was  convicted  of  possession  of
methamphetamine with intent  to  deliver.   The  trial  court  enhanced  the
presumptive sentence of 30 years applicable here by an additional 15, for  a
total sentence  of  45  years.   Finding  the  mitigating  circumstances  in
balance with the aggravating circumstances, we revise Merlington’s  sentence
to 30 years.



                                 Background

      On November 15, 2001, a Jeff Hurley drove Travis  Jay  Merlington  and
another person to a motel in Goshen, Indiana.   When  they  arrived  at  the
motel, three police vehicles surrounded them.  A search of Hurley’s  vehicle
revealed  about  224  grams  of  methamphetamine  and  about  6.5  grams  of
marijuana behind the glove compartment.

      Merlington was arrested and charged with possession of methamphetamine
in excess of three grams with intent to deliver, a Class A  felony.[1]   The
trial court convicted Merlington and sentenced him to  total  executed  time
of 45 years, the 30-year presumptive sentence for a Class A felony  enhanced
by 15 years for aggravating circumstances.  The Court  of  Appeals  affirmed
the  conviction  and  sentence  in  an  unpublished   memorandum   decision.
Merlington sought and we granted transfer.  Merlington v. State, 812  N.E.2d
791, 2004 Ind. LEXIS 42 (Ind. Jan. 9, 2004).[2]

                                 Discussion

      Merlington argues that his sentence was excessive as a result  of  the
trial court’s improper application  of  certain  aggravating  circumstances.
Finding  aggravating  circumstances  that  “substantially”  outweighed   the
mitigating circumstances, the trial court sentenced Merlington to  15  years
more than the presumptive sentence of 30 years, for a total of 45  years  in
the Indiana Department of Correction.

      The Legislature has prescribed standard or “presumptive” sentences for
each crime, allowing the sentencing court limited discretion  to  enhance  a
sentence to reflect  aggravating  circumstances  or  reduce  it  to  reflect
mitigating circumstances.  In this case, the applicable  statute  reads,  “A
person who commits a Class A felony shall be imprisoned for a fixed term  of
thirty  (30)  years,  with  not  more  than  twenty  (20)  years  added  for
aggravating circumstances or not more than ten  (10)  years  subtracted  for
mitigating circumstances . . . .”  Ind. Code § 35-50-2-4 (1998).

                                      I

      If the court relies on  aggravating  or  mitigating  circumstances  to
deviate from the presumptive sentence, it must (1) identify all  significant
mitigating and aggravating circumstances; (2) state the specific reason  why
each circumstance has been determined to be mitigating or  aggravating;  and
(3) articulate the court’s evaluation and balancing  of  the  circumstances.
Wooley v. State, 716 N.E.2d 919, 929 (Ind. 1999) (citing  Harris  v.  State,
659 N.E.2d 522, 527-28 (Ind. 1995)).  When a sentence more severe  than  the
presumptive is challenged on appeal, the reviewing court  will  examine  the
record to insure  that  the  sentencing  court  explained  its  reasons  for
selecting the sentence it imposed.  Lander v. State, 762 N.E.2d  1208,  1215
(Ind. 2002).

      At  Merlington’s  sentencing  hearing,  the   court   identified   two
mitigating circumstances: (1) Merlington  was  a  young  man—20-years-old—at
the time of the offense; and (2) Merlington had no prior criminal history.

      The trial court also found five  aggravating  circumstances:  (1)  the
amount of drugs involved was much more than the required amount for a  Class
A felony, and the drugs were worth an “extremely  substantial”  amount;  (2)
there were other drugs found in the car in which Merlington was riding,  and
marijuana was found in the jacket he was  wearing;  (3)  because  Merlington
did not use the drugs, it was clear that he was selling  them  strictly  for
financial gain, rather than for money  to  support  a  drug  addiction;  (4)
Merlington  gave  false   testimony   about   his   involvement   with   the
methamphetamine, which indicated an unwillingness to  accept  responsibility
for his criminal conduct; and (5) by failing to appear for the last  day  of
trial, Merlington showed a lack  of  respect  for  the  court,  the  parties
involved, and the criminal process in general.  The trial court  also  found
that this fifth circumstance “alone or taken in combination with  any  other
aggravating  circumstances  sufficiently  justifies  the  imposition  of  an
aggravated sentence.”  Appellant’s App. at 110.

      It is clear from  the  record  that  the  trial  court  in  this  case
satisfied its obligation to explain its reasons for selecting  the  sentence
it imposed.  Lander, 762 N.E.2d at 1215.

                                     II

      Merlington contends that the trial  court  improperly  considered  two
aggravating circumstances: (1) the quantity and  value  of  the  contraband;
and (2)  the  fact  that  Merlington  apparently  sold  drugs  strictly  for
financial gain, rather than for money to support  his  own  drug  addiction.
His argument is that the use of  these  two  circumstances  to  enhance  his
sentence violated the principle that a  fact  “which  comprises  a  material
element of a crime may not also constitute an  aggravating  circumstance  to
support an enhanced sentence.”  Townsend v. State,  498  N.E.2d  1198,  1201
(Ind. 1986); Smith v. State, 780 N.E.2d 1214,  1219  (Ind.  Ct.  App.  2003)
(citing Stone v. State, 727 N.E.2d 33, 37  (Ind.  Ct.  App.  2000)),  trans.
denied, 792 N.E.2d 41 (Ind. 2003).

      We need not engage in extended analysis on this  point  as  the  State
acknowledges that Merlington “correctly argues” that  the  trial  court  was
wrong to utilize these two circumstances as aggravating.   Br.  of  Appellee
at 16-17.  The Court of Appeals recognized the State’s  concession  and  did
not  consider  these  two  aggravators  in  its  analysis  of   Merlington’s
sentence.

      If one or more aggravating circumstances cited by the trial court  are
invalid, the court on appeal must decide whether the remaining  circumstance
or circumstances are sufficient to support the sentence imposed.  Hollen  v.
State, 761 N.E.2d 398, 402 (Ind. 2002).  Where we find an irregularity in  a
trial court's sentencing decision, we have  the  option  to  remand  to  the
trial court for a clarification or new sentencing determination,  to  affirm
the sentence if the error is harmless, or to reweigh the proper  aggravating
and  mitigating  circumstances  independently  at   the   appellate   level.
Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind.  2001).   We  elect  appellate
reweighing here.  Ind. Const. art. VII, § 4.

      Our jurisprudence indicates  that  the  two  mitigating  circumstances
here—young age and  lack  of  criminal  history—are  weighty.   Loveless  v.
State, 642 N.E.2d 974, 976  (Ind.  1994)  (stating  that  age  and  lack  of
delinquent or criminal  record  “deserve  substantial  mitigating  weight”).
They have also served as the basis for relief.  See, e.g., Baxter v.  State,
727 N.E.2d 429, 436 (Ind. 2000) (lack of criminal  history);  Trowbridge  v.
State, 717 N.E.2d 138, 150 (Ind. 1999) (age); Carter v.  State,  711  N.E.2d
835, 843 (Ind. 1999) (age and lack of criminal history); Edgecomb v.  State,
673 N.E.2d 1185, 1199 (Ind. 1996) (lack of criminal history).

      To repeat, the valid aggravating circumstances utilized by  the  trial
court were that (1) other drugs were found in the car  in  which  Merlington
was riding, and marijuana was found  in  the  jacket  he  was  wearing;  (2)
Merlington  gave  a  false  testimony  about  his   involvement   with   the
methamphetamine, indicating an unwillingness to  accept  responsibility  for
his criminal conduct; and (3) by failing to  appear  for  his  last  day  of
trial, Merlington showed a lack  of  respect  for  the  court,  the  parties
involved, and the criminal process in general.   We  agree  with  the  trial
court that each of these constitutes a valid aggravating  circumstance,  but
we are unable to conclude that their collective weight is greater  than  the
mitigating effect of Merlington’s young age and lack  of  criminal  history.
We therefore conclude that the presumptive  sentence  of  30  years  is  the
appropriate sentence in  light  of  the  nature  of  this  offense  and  the
character of this offender.

                                 Conclusion

      We affirm Merlington’s conviction for possession of methamphetamine in
excess of three grams with intent to deliver.  We reverse  his  sentence  of
45 years and remand to  the  trial  court  with  instructions  to  issue  an
amended sentencing order and to issue or make any other documents or  docket
entries necessary to impose a sentence of 30 years, without a hearing.

Shepard, C.J., and Boehm and Rucker, JJ., concur.  Dickson, J., dissents.
-----------------------
[1] Ind. Code §§ 35-48-4-1(a)(2)(C), (b)(1) (1998).
[2] In this appeal, Merlington  contends  that  the  trial  court  committed
reversible error  in  four  respects.   First,  he  argues  that  the  court
incorrectly denied his motion to suppress  evidence  that  he  contends  was
obtained  in  an  illegal  search.   The  Court  of  Appeals  rejected  this
argument, finding that the officers’ investigatory stop of the  vehicle  was
justified by the sufficient indicia of reliability of  an  informant’s  tip.
Second, Merlington argues that there was insufficient evidence presented  at
trial to establish the possession element of  the  crime  of  which  he  was
convicted.  The Court  of  Appeals  rejected  this  argument,  finding  that
because there had been evidence that Merlington had made  furtive  movements
in the direction of the  glove  box  where  the  methamphetamine  was  found
(directly in  front  of  his  seat),  the  State  had  presented  sufficient
evidence to  demonstrate  Merlington’s  knowledge  of  the  methamphetamine.
Third, Merlington argues that the court erred when it denied  a  motion  for
mistrial that he had made at trial after the State  had  referred  to  drugs
found in his apartment.   The  Court  of  Appeals  rejected  this  argument,
finding that the trial court had not abused its discretion  in  denying  the
motion, in part because it had given the jury a limiting instruction on  the
use of the evidence.  We summarily  affirm  the  opinion  of  the  Court  of
Appeals on these three issues.  Ind. Appellate Rule  58(A)(2).   We  discuss
his fourth contention infra.