ATTORNEY FOR APPELLANT
Ann M. Sutton
Appellate Public Defender
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
PAUL VEAL, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0012-CR-785
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9805-CF-785
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 7, 2003
BOEHM, Justice.
Paul Veal pleaded guilty to murder, rape, criminal confinement, and
cruelty to animals pursuant to an agreement calling for a sentence from
eighty-five years to life without parole. In this direct appeal, Veal
challenges his sentence on the grounds that the trial court erred in
considering victim impact evidence and improperly found statutory
mitigating circumstances to be aggravating. We affirm.
Factual and Procedural Background
Late on the night of May 15, 1998, Veal, armed with a handgun, went
alone to the apartment of Candace Tyler. By his own account, he first shot
Tyler in the face, then raped her and finally killed her with a shot to the
back of the head in order to prevent her from identifying him. At some
point, he also shot and killed Tyler’s dog.
Veal pleaded guilty to murder, rape, criminal confinement and cruelty
to animals. He was sentenced by the trial court to life without parole on
the murder charge, the presumptive sentence of one year on the cruelty to
animals charge, and enhanced statutory maximum sentences of fifty years for
rape and twenty years for criminal confinement, all to run consecutively.
Life without parole, like the death penalty, requires a finding of an
aggravating circumstance identified in Indiana Code section 35-50-2-9(b)
(2002). Highbaugh v. State, 773 N.E.2d 247, 251 (Ind. 2002). When this
direct appeal was first presented, this Court determined that the initial
sentencing order imposing LWOP had relied on non-statutory factors. The
case was remanded for a new sentencing order, and this appeal now addresses
issues raised under the revised order.
I. Admission of Victim Impact Evidence
Tyler was nineteen years old when Veal murdered her. Tyler’s
maternal aunt, stepfather, and mother all testified at the sentencing
hearing about the niece and daughter they had lost, the effect of the crime
on them, and their own recommendations regarding Veal’s sentence.[1] Veal
objected to this testimony on the ground that it was inadmissible victim
impact evidence. Veal cites Bivins v. State, 642 N.E.2d 928 (Ind. 1994),
for the proposition that victim impact evidence is admissible under the
death penalty statute only where it is “relevan[t] to the death penalty
statute’s aggravating and mitigating circumstances.” Id. at 957. Cases in
which life without parole is sought are governed by the same statute. Pope
v. State, 737 N.E.2d 374, 382 (Ind. 2000) (citing Ajabu v. State, 693
N.E.2d 921, 936 (Ind. 1998)). The trial court overruled the objection on
the ground that Bivins applied to the penalty phase of a death penalty or
LWOP trial, but not to a sentencing hearing.
In the trial court’s sentencing order, the only aggravating
circumstance relied upon to impose LWOP was a finding that Veal murdered
the victim while committing or attempting to commit rape. Ind. Code § 35-
50-2-9(b)(1)(F) (1998).[2] We agree that this victim impact testimony
would have been inadmissible at the penalty phase of an LWOP trial because
the testimony of Tyler’s family related solely to the consequences of this
crime and was irrelevant to the sole charged aggravator. However, this
testimony was offered in a sentencing hearing, in which Veal was sentenced
for both the murder and the other counts. Although the family’s opinions
are not statutory aggravating factors under section 35-38-1-7.1(b), they
are permissible under subsection (a)(6) as to those counts. I.C. § 35-38-1-
7.1(b) and (a)(6) (2002); Loveless v. State, 642 N.E.2d 974, 978 (Ind.
1994) (expressly approving victim impact testimony from the victim’s
family). There is a presumption that a court in any proceeding that is
tried before the bench rather than before a jury “renders its decision
solely on the basis of relevant and probative evidence.” Coleman v. State,
558 N.E.2d 1059, 1062 (Ind. 1990). The same is true of a sentencing
hearing.
Finally, the sentencing order relied only on the statutory factors in
determining eligibility for LWOP. There is no indication in the order that
the trial court considered the victim impact testimony in making its
determination on this point. Prowell v. State, 687 N.E.2d 563, 565 (Ind.
1997) (the admission of victim impact evidence was harmless if the
sentencing order did not mention the evidence). Again, we presume that a
court in a bench proceeding relies only on relevant and probative evidence
in reaching its decision. Coleman, 558 N.E.2d at 1062. The sentencing
order gives no indication of any reason to challenge that presumption.
II. Aggravating Circumstances on non-LWOP Counts
In order for a trial court to impose enhanced or consecutive
sentences, it must (1) identify the significant aggravating factors and
mitigating factors; (2) relate the specific facts and reasons that the
court found to those aggravators and mitigators; and (3) demonstrate that
the court has balanced the aggravators with the mitigators. Ajabu v.
State, 722 N.E.2d 339 at 343 (Ind. 2000) (citing Gregory v. State, 644
N.E.2d 543, 545 (Ind. 1994)).
The trial court in Veal’s case enhanced the sentences of rape and
criminal confinement. Because rape is a crime of violence, there is no
statutory limit on the total of the sentences for rape and criminal
confinement when imposed consecutively. I.C. § 35-50-1-2(c) (2001).
In its revised sentencing order, the trial court separated its
discussion of the murder charge from its discussion of the remaining counts
and identified the significant aggravating and mitigating factors that it
relied on in sentencing on the remaining counts. The trial court also
supplied a cursory, though sufficient, identification of specific facts and
reasons supporting these aggravators and mitigators and provided a
satisfactory demonstration that it had conducted a balancing of the
aggravators with the mitigators. The trial court also explained that the
aggravating circumstances outweigh the mitigating circumstances and justify
the enhanced, consecutive sentences imposed.
Veal also argues that the trial court improperly considered statutory
mitigators as aggravators on the remaining counts. The aggravators
considered by the trial court in its sentencing order are: (1) there was no
justifiable excuse for committing the offense; (2) the victim in no way
induced or facilitated the offense; (3) Veal was not likely to respond
affirmatively to probation or short-term imprisonment as indicated by his
history; (4) Veal has a history of criminal offenses as a juvenile; (5)
Veal shows little remorse and takes no responsibility for his actions; (6)
the facts and circumstances of the offense reveal the heinous nature of the
offense. The first three aggravators are essentially the absence of a
potential mitigating circumstance. Under Indiana Code sections 35-38-1-
7.1(c)(3), (4), and (6), the sentencing court may consider as mitigators
that there was a justifiable excuse for the commission of the offense, that
the victim induced or facilitated the offense, or that the accused person
is likely to respond affirmatively to probation or short-term imprisonment.
Although these first three are not proper aggravating circumstances,
the trial court’s sentence was nevertheless supported by the record. A
trial court may rely upon only one aggravating circumstance to support an
enhanced sentence. Hollen v. State, 761 N.E.2d 398 (Ind. 2002). That same
circumstance may also be used to justify the imposition of consecutive
sentences. Spiller v. State, 740 N.E.2d 1270, 1274 (Ind. 2001) (citing
Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999)). A trial court may find
a defendant’s lack of remorse to be an aggravating factor. Brooks v.
State, 497 N.E.2d 210, 221 (Ind. 1986). And, so long as an element of a
crime is not cited as an aggravating circumstance, the court may consider
the nature and circumstances of the crime committed. I.C. § 35-38-1-
7.1(a)(2) (2002); Armstrong v. State, 742 N.E.2d 972, 981 (Ind. 2001). The
sentencing court’s consideration of the heinous nature of the offense as an
aggravator was permissible, and Veal has no quarrel with the consideration
of the fourth aggravating factor, his juvenile criminal history. In view
of these properly identified factors, and because a single factor is
sufficient, there is no procedural error in imposing the sentences found
appropriate by the trial court. Given the facts of this case, we do not
find the sentence manifestly unreasonable.
Conclusion
The sentencing order of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Tyler’s aunt testified in part as follows:
Candace was a beautiful child. . . . loving. . . . very family
oriented. . . . very giving. . . . She was concerned about the
homeless on a trip to Washington, D.C. for her school – and for the
City of Hammond. . . . She never wanted anyone to give her anything.
She worked. . . . she was always a pleasure. She always made me very
proud. . . . But I don’t think my family wants vengeance or revenge –
we want justice. And if justice means that Paul Veal should sit in
jail for the rest of his natural life – then I think that is justice.
I think that Candace begged for mercy – and he showed her none. I
think by the same token, he should get no mercy. No mercy.
Tyler’s stepfather testified in pertinent part as follows:
Candace became that daughter that I didn’t have. . . . it’s been
devastating . . . we just don’t feel like we have anything to live
for. . . . She just made life so special. . . . It was just taken from
her and there was no reason for it. . . . When I went to pay for the
funeral . . . this is the actual change. This is not a replica . . .
and I’ll have it the rest of my life. Sixty-two cents – and . . .
this is the key to the casket. What are we going to do with this.
What is this for. We can’t go out there and crank it up and look at
it every other – on a birthday – we just got a key to the casket.
What am I gonna do with this. What am I supposed to do with this. . .
. If the best he can get is life without parole – we’ll take that.
Tyler’s mother testified in pertinent part as follows:
Candace and I were one. One from one is zero – that’s how I am now.
She was my everything. I lived, I breathed for Candace. . . . Now who
do I have? He stole her. He robbed me of my life. . . . I have no
grandkids. We will never. . . . Our blood runs no more. . . . I have
nothing in this world. . . . I should be dead. . . . she was my best
friend. . . . I’m dead. . . . He should get life. He should never
ever walk the streets again. He should not be allowed to see anything
but the sky. He shouldn’t be able to do this to another person – to
another family – to another community. Life with no parole.
[2] The statutory aggravating circumstance is “intentional killing” in the
course of a felony. I.C. § 35-50-2-9(b)(1)(F) (1998). Although murder can
be committed either “knowingly” or “intentionally,” there is no dispute
that this killing was intentional so there is no consequence to the trial
court’s technically deficient formulation of this aggravating circumstance
as “murder.”