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
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In the
Indiana Supreme Court
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No. 20S03-0401-CR-00013
Travis Jay Merlington
Appellant (Appellant below),
v.
State of Indiana
Appellee (Appellee below).
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Appeal from the Elkhart Circuit Court, No. 20C01-0111-CF-130
The Honorable Terry Shewmaker, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 20A03-0211-
CR-377
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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the conviction and sentence in an unpublished memorandum decision.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.
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[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.