ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
NANDITA G. SHEPHERD
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JEREMY WAYNE SMITH, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 17S00-0009-CR-551
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEKALB CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause Nos. 17C01-0003-CF-005
17C01-0003-CF-006
17C01-0003-DF-013
ON DIRECT APPEAL
June 28, 2002
RUCKER, Justice
Jeremy Smith pleaded guilty but mentally ill to murder and guilty to
arson related to the murder. In unrelated matters, he pleaded guilty to
burglary, theft, two counts of harassment, and failure to register as a sex
offender with local law enforcement. The trial court imposed the maximum
sentence for each offense and ran them consecutively for a total term of
one hundred eleven years and three hundred sixty days. In this direct
appeal, Smith challenges his sentence contending the trial court: (1) did
not explain its reasons for imposing consecutive sentences; (2) cited an
erroneous aggravating factor; and (3) failed to consider his mental illness
as a mitigating factor. He also complains the trial court was biased.
We affirm the trial court’s judgment but remand for a new sentencing
order on the issue of Smith’s mental illness as a mitigating factor.
Facts
Although they were not acquainted, Smith and Shallon Bush lived in
the same apartment complex in Auburn, Indiana. In the early morning hours
of July 19, 1999, Smith walked to Bush’s apartment where she was living
with her three-year-old son. Smith opened the door with a key he had
stolen from the apartment manager’s office, walked into Bush’s bedroom
where she was sleeping, woke her, and strangled her to death. To conceal
the crime, Smith poured vodka over her body and started a fire.
Picking a name at random from a telephone directory, Smith called
Meghann McAfee during the day on October 4, 1999, and left an obscene and
threatening message on her answering machine. Later that evening, he broke
into McAfee’s home and removed several items of personal property. A few
months later, in February 2000, Smith again called McAfee and left another
message on the answering machine similar in content to the previous one.
Smith was eventually arrested and charged with murder and arson as a
Class A felony in connection with Bush’s death; and burglary as a Class B
felony, theft as a Class D felony, and two counts of harassment as Class B
misdemeanors in connection with his actions concerning McAfee. He also was
charged with failure to register as a Class D felony.[1] Smith pleaded
guilty to all offenses as charged. At the time of sentencing, the trial
court identified several aggravating factors, some of which were offense
specific. With respect to the murder, the trial court noted the nature and
circumstances of the crime: it occurred in the victim’s home, Smith’s size
and weight advantage, the crime was committed with the use of a stolen key
which demonstrated planning, Smith’s lack of remorse, Smith’s indications
that he would kill again, and the impact of the crime on the victim’s three-
year-old son. Concerning the burglary and theft, the trial court found
they were planned and noted the traumatizing effect the threatening
telephone calls had on the victim. The trial court also found as
aggravating factors Smith’s prior criminal history, his violation of
probation, and his need for correctional or rehabilitative treatment that
would best be provided by a penal institution. Finding no mitigating
factors, the trial court sentenced Smith to the maximum term for each
offense: sixty-five years for murder, twenty years for arson, twenty years
for burglary, three years for theft, and one hundred eighty days for each
count of harassment. The trial court ordered the sentences to run
consecutively for a total term of one hundred eleven years and three
hundred sixty days. This appeal followed.
Discussion
I.
Conceding the trial court explained its reasons for imposing enhanced
sentences, Smith complains the trial court erred in failing to explain also
its reasons for imposing consecutive sentences. This argument fails. A
trial court is not obligated to identify the aggravators that support
consecutive sentences separately from the factors that support the sentence
enhancement. Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998). Rather,
the same factors used to enhance a sentence may also be used to justify a
consecutive sentence. Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
In this case, the trial court relied on the same factors declaring “every
one of those aggravating circumstances is also a basis for me to impose
consecutive sentences.” R. at 547. We find no error on this issue.
II.
Smith next contends the trial court erred in citing as an aggravating
factor the impact that his crime imposed on the murder victim’s three-year-
old son. We must agree. As this Court has previously noted: “[w]e
appreciate the terrible loss of a loved one. But because such impact on
family members accompanies almost every murder, we believe it is
encompassed within the range of impact which the presumptive sentence is
designed to punish.” Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997).
Although the impact on others may qualify as an aggravator in certain
cases, “‘the defendant’s actions must have had an impact on . . . ‘other
persons’ of a destructive nature that is not normally associated with the
commission of the offense in question and this impact must be foreseeable
to the defendant.’” Id. (quoting Washington v. Johnson, 873 P.2d 514, 525
(Wash. 1994)). In this case, the trial court did not articulate how the
impact on Bush’s child was of the type so distinct that it raised to the
level of an aggravating factor. Citing this impact evidence as an
aggravating factor was therefore improper.
However, when the trial court improperly applies an aggravator, but
other valid aggravating circumstances exist, a sentence enhancement may
still be upheld. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998). Here,
the trial court cited additional aggravating circumstances, which Smith
does not challenge. Subject to our discussion infra Section III, the
additional aggravators are sufficient to support Smith’s enhanced
sentences.
In a related argument, Smith contends that in imposing sentence, the
trial court erroneously considered “impact statements” from a number of
Bush’s relatives and friends. The record shows the trial court received
numerous letters from Bush’s friends and family. R. at 102-15, 119-41, 147-
201. Some expressed grief and loss, while others recommended maximum
punishment. Id. At the sentencing hearing, several of Bush’s relatives
testified about the psychological and emotional effects the murder had on
their lives. Our discussion of Bacher, supra, is equally applicable here.
In any event, the record shows the trial court did not cite or refer to the
testimony of Bush’s relatives as an aggravating factor. Smith’s argument
on this point fails.
III.
Smith also complains the trial court failed to consider his mental
illness as a mitigating factor. The facts are these. While this case was
pending, counsel raised the issue of Smith’s competency to stand trial. As
a result, the trial court appointed Dr. Domingo Cruz-Diaz and Dr. Mark
Souder to examine Smith for that purpose. Both submitted written reports
to the trial court concluding that Smith was competent to stand trial.
However, Dr. Souder opined further that Smith suffered from paranoid
schizophrenia, depression, antisocial personality disorder, and attention
and impulse control problems. R. at 230. At the change of plea hearing,
the trial court accepted the reports as evidence to support Smith’s plea of
guilty but mentally ill to murder. R. at 440-41. At sentencing, no
evidence of Smith’s mental illness was introduced. However, referring to a
very detailed and thorough pre-sentence investigation report, the trial
court discussed Smith’s history of mental illness. The report included not
only the written evaluations of the court-appointed psychiatrists but also
reports from three different facilities where Smith had been treated at
various times since the age of eighteen for a variety of mental health
problems. R. at 262-66. While imposing sentence, the trial court
declared:
I have, in good faith, reviewed the mitigating factors. They’re set
forth in the Indiana statute. I’ve reviewed them specifically. I
have thought in the quiet times when I have studied the report and
thought about this case and made notes and considered what would be
just and fair[;] what are the mitigating circumstances present in Mr.
Smith’s favor. I find there are none.
R. at 547.
It is true that the trial court is not required to find the presence
of mitigating factors; and if the trial court does not find the existence
of a mitigating factor after it has been argued by counsel, then the trial
court is not obligated to explain why it has found that the factor does not
exist. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). It is also
true that the trial court is not required to weigh or credit the mitigating
evidence the way a defendant suggests it should be credited or weighed.
Id. Further, a guilty but mentally ill defendant “is not automatically
entitled to any particular credit or deduction from his otherwise
aggravated sentence[.]” Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997).
Nonetheless, we have held that in sentencing a guilty but mentally ill
defendant, trial courts “should at a minimum carefully consider on the
record what mitigating weight, if any, to accord to any evidence of mental
illness, even though there is no obligation to give the evidence the same
weight the defendant does.” Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998).
As we have explained, there are several factors that bear on this
determination, including: (1) the extent of the defendant’s inability to
control his or her behavior due to the disorder or impairment; (2) overall
limitations on functioning; (3) the duration of the mental illness; and (4)
the extent of any nexus between the disorder or impairment and the
commission of the crime. Id.; Archer, 689 N.E.2d at 685. The factors are
not exclusive but are among those the trial court must consider in
determining what, if any, mitigating weight to give to any evidence of a
defendant’s mental illness after a finding or plea of guilty but mentally
ill. Here, implicit in the trial court’s sentencing order is a finding
that Smith’s mental illness is entitled no mitigating weight. This finding
is not necessarily improper. However, because there is no indication the
trial court reached that conclusion after applying any of the criteria set
forth in Weeks and Archer, we must remand this cause for a new sentencing
order. A new sentencing hearing, however, is unnecessary. See O’Connell
v. State, 742 N.E.2d 943, 952-53 (Ind. 2001) (setting forth the options a
trial court may employ when a cause is remanded for a new sentencing
order).
IV.
For his final allegation of error, Smith contends that statements the
trial court made at the time of sentencing demonstrate his bias and
prejudice. Specifically, Smith points to remarks in which the trial court
referred to facts allegedly not supported by the record; described the
murder and arson as the “act of an evil, mean, depraved, perverted animal,”
R. at 544; and made a Biblical reference that included the comment, “May
the soul of Shallon Bush now rest in peace[,]” R. at 551. Smith urges that
we remand this cause so that a different judge can sentence him.
Merely asserting bias and prejudice does not make it so. The law
presumes that a judge is unbiased and unprejudiced. Lee v. State, 735
N.E.2d 1169, 1172 (Ind. 2000). And to rebut that presumption, a defendant
must establish from the judge’s conduct actual bias or prejudice that
places the defendant in jeopardy. Harvey v. State, 751 N.E.2d 254, 259
(Ind. Ct. App. 2001); Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App.
1993). Such bias and prejudice exists only where there is an undisputed
claim or where the judge expressed an opinion of the controversy over which
the judge was presiding. Resnover v. State, 507 N.E.2d 1382, 1391 (Ind.
1987); Harvey, 751 N.E.2d at 259; Cook, 612 N.E.2d at 1088. The imposition
of the maximum sentence does not support a claim of bias. Radcliff v.
State, 579 N.E.2d 71, 73 (Ind. 1991). In this case, Smith has not carried
his burden of proof. Each of the aggravating circumstances cited by the
trial court was fully supported by the record. As for the Biblical
reference and the comment on the heinous nature of the murder, we are not
persuaded they represent an expression of the trial court’s opinion on the
merits of Smith’s sentence. Smith is not entitled to relief on this claim.
Conclusion
This cause is remanded for a new sentencing order consistent with this
opinion. In all other respects, we affirm the judgment of the trial court.
DICKSON and SULLIVAN, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.
BOEHM, J., dissents with separate opinion in which SHEPARD, C.J., joins.
SHEPARD, C.J., dissenting.
Smith has argued that a number of points reflecting on his mental
health should have been given mitigating weight by the trial judge. Some
of these proffers, like “antisocial personality disorder” and “impulse
control problems,” are characteristics so commonly associated with violent
crimes that I am not surprised that Judge Cherry did not find them
mitigating.
Others, like paranoid schizophrenia, stand on firmer ground and
probably should have been given some weight.
I vote to affirm, however, because there are some fifteen aggravating
circumstances found by the trial court in a lengthy and precise sentencing
order and not challenged on appeal. These include a list of prior felonies
both here and in Ohio, committing the current offenses while on probation,
failure to respond to numerous past efforts at counseling and treatment
programs, “no remorse whatsoever,” selection of a victim a foot shorter and
sixty pounds lighter, and a long campaign designed to terrify the victim
before the crime, to name a few.
The court’s sentencing order runs to nine pages single-spaced in the
appellant’s brief on appeal. It is both thoughtful and meticulous, and it
persuades me that the sentence is appropriate.
I would affirm rather than remand.
BOEHM, Justice, dissenting.
In Weeks v. State, 697 N.E.2d 28 (Ind. 1998), we held that a finding
by a jury of guilty but mentally ill required the sentencing judge to
articulate the effect of that finding on the sentence. In my view, this
requires a determination whether the defendant’s mental illness was a
mitigating factor and, if so, what weight it deserves. The factors
identified in Archer v. State, 689 N.E.2d 678 (Ind. 1997), may be among the
relevant considerations in those determinations, but these will undoubtedly
vary from case to case.
Here we have a plea of guilty but mentally ill, not a finding by the
trier of fact. Although the trial court dismissed Smith’s mental illness
with minimal discussion and a finding of no mitigating circumstances, I
would nevertheless affirm the sentence because I believe the evidence of
mental illness, which is solely documentary, demonstrates that this case is
far removed from the facts of Weeks, where the defendant’s bizarre behavior
over a long period of time was obvious, and the apparently motiveless crime
undoubtedly supported the jury’s finding of guilty but mentally ill. In
addition, the detailed severely aggravating facts identified by the trial
court and cited by the Chief Justice in my view demonstrate that this
sentence should be affirmed for the reasons the Chief Justice gives.
Finally, I do not agree with the majority that the impact on the
three-year-old son was an improper consideration in sentencing. Smith
lived three doors from Ms. Bush. Smith was thus on fair notice that he was
killing the mother of a three year old. Not every murder deprives a child
of its mother, and particularly not at such a tender age. This murder thus
was, in terminology sometimes adopted by this court, “worse” than many, and
I believe the trial court properly took that into account.
SHEPARD, C.J., concurs.
-----------------------
[1] Because of a 1997 conviction for child molesting, Smith qualified
as a “sex and violent offender.” Ind. Code § 5-2-12-4(a). A person
obtaining that status is required to register with local law enforcement
authorities. I.C. § 5-2-12-5. The knowing or intentional failure to do so
is a criminal offense. I.C. § 5-2-12-9.