ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent Westerfeld Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JERRY A. BONDS, )
Defendant-Appellant, )
)
v. ) 49S00-9902-CR-86
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9708-CF-116824
________________________________________________
On Direct Appeal
June 9, 2000
DICKSON, Justice
The defendant, Jerry A. Bonds, pleaded guilty to murder[1] and
conspiracy to commit robbery as a class A felony.[2] The trial court
sentenced the defendant to sixty-five years for the murder and twenty years
for conspiracy as a class B felony, to be served consecutively. We deem
the defendant's appeal to present the following two claims: (1) that the
trial court improperly found aggravating circumstances; and (2) that his
sentence is manifestly unreasonable.
Aggravating Circumstances
The defendant contends that the trial court relied on improper
aggravating circumstances to enhance his sentences and to order them served
consecutively. The trial court listed four aggravating circumstances: (1)
the defendant recruited others in the planning and commission of the
offense; (2) the defendant's role in the offense was that he was the one
who actually went inside the store and committed the robbery and the
killing; (3) a life was taken during the commission of the robbery; and (4)
the money that was robbed from the store was obtained for purposes of
satisfying a drug debt.
In general, sentencing determinations are within the trial court's
discretion and are governed by Indiana Code section 35-38-1-7.1. See
Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999); Harris v. State, 659 N.E.2d
522, 527 (Ind. 1995). We review trial court sentencing decisions only for
abuse of discretion, including a trial court's decisions to increase or
decrease the presumptive sentence because of aggravating or mitigating
circumstances and to run the sentences concurrently or consecutively. See
Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997); Smith v. State, 675
N.E.2d 693, 697 (Ind. 1996); Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.
1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980). If a
trial court relies upon 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 circumstances.
Harris, 659 N.E.2d at 527-28. We have consistently held that one
aggravator alone is sufficient to warrant an enhanced sentence. Fugate v.
State, 608 N.E.2d 1370, 1374 (Ind. 1993). The same circumstance may be
used to both enhance a sentence and to impose a consecutive sentence.
Thacker, 709 N.E.2d at 10; Holmes v. State, 642 N.E.2d 970, 973 (Ind.
1994); Marshall v. State, 621 N.E.2d 308, 322 (Ind. 1993); McCollum v.
State, 582 N.E.2d 804, 817 (Ind. 1991). When a trial court improperly
applies an aggravator, but other valid aggravating circumstances exist, a
sentence enhancement may still be upheld. Blanche v. State, 690 N.E.2d
709, 716 (Ind. 1998).
The "nature and circumstances" of a crime is a proper aggravator.
See Ind. Code § 35-38-1-7.1 (the nature and circumstances of a crime shall
be considered in determining what sentence to impose); Thacker, 709 N.E.2d
at 10. While a trial court may not use a factor constituting a material
element of an offense as an aggravating circumstance, Angleton v. State,
714 N.E.2d 156, 160 (Ind. 1999); Johnson v. State, 687 N.E.2d 345, 347
(Ind. 1997); Holmes, 642 N.E.2d at 972, a court may look to the
particularized circumstances of the criminal act, Ellis v. State, 707
N.E.2d 797, 804-05 (Ind. 1999); Smith, 675 N.E.2d at 698; Ector v. State,
639 N.E.2d 1014, 1015 (Ind. 1994); Williams v. State, 619 N.E.2d 569, 573
(Ind. 1993). Although the particular manner in which a crime is committed
may constitute an aggravating factor, Jackson v. State, 697 N.E.2d 53, 56
(Ind. 1998); Johnson, 687 N.E.2d at 347; Widener v. State, 659 N.E.2d 529,
532 (Ind. 1995), a trial court should specify why a defendant deserves an
enhanced sentence under the particular circumstances, Ellis, 707 N.E.2d at
805; Wethington v. State, 560 N.E.2d 496, 510 (Ind. 1990).
The defendant contends that the first aggravating circumstance, that
the defendant recruited others, is not appropriate because the record
contains no evidence or information that would support the finding that the
defendant recruited the other participants in the crimes and because this
factor merely restates a material element of the conspiracy offense and the
robbery element of the felony murder offense. We note that the defendant
submitted to the trial court the following account in the "Defendant's
Statement" portion of his Pre-Sentencing Memorandum:
At first it was just me and Cameron, my girlfriend. Later, Bernard
(McGuire) came over and left. He came back about 4:30 or 5:00 p.m.
He said he needed some money for a car payment or car insurance,
something like that. I told him I didn't have any, even though I did.
I didn't think he'd pay me back if I gave it to him. He asked if
Bacon (Veronica Spencer) might have money. I told him he'd have to
ask her about that. So we went to her apartment. It's close to mine.
Bacon told Bernard she couldn't write anymore checks because they
wasn't going through no more. Marilyn was already there. That's when
Bacon said she knew a place we could rob to get some money. When
Ahmed (Bellemy) came over, we asked him if he wanted to help us rob
the Chinese store across the street. He said, "No," but that he'd
look out for us. Bacon said she couldn't come but was going to send
Marilyn over to help as a look out too.
Record at 130-31. The defendant's own statement here indicates that he was
involved in recruiting other participants in the crime. Furthermore, the
defendant's recruiting of other participants is not a material element of
murder or conspiracy, but rather constitutes the nature and circumstances
of the crimes. The trial court did not abuse its discretion.
Regarding the second aggravator, the defendant's role as the primary
actor in the robbery and the killing, the defendant contends that this
aggravator is improper because it merely restates material elements of the
offenses—the defendant went inside the store and committed the robbery and
the killing. We note that the record clearly establishes the defendant's
role as the primary actor in that, among the participants in the
conspiracy, the defendant was the one who actually entered the store,
committed the robbery, and killed the victim. The defendant's role as the
primary actor is not a material element of either crime but constitutes the
nature and circumstances of the crimes. The trial court did not abuse its
discretion.
Regarding the third aggravator, a life was taken during the commission
of the robbery, the defendant contends that this aggravator is improper
because it merely restates material elements of the offenses. Killing
another person during the commission of a robbery are material elements of
the offense of felony murder by robbery, and thus the taking of a life
cannot be used to enhance the sentence for murder. As to the conspiracy
offense, the defendant entered a plea of guilty to it as a class A felony,
which requires resulting serious bodily injury to any person other than the
defendant. The sentencing court, after considering the mitigating factors
and hearing argument regarding double jeopardy considerations involving the
serious bodily injury element, sentenced the defendant for conspiracy as a
class B felony, which does not require serious bodily injury. The class B
felony sentence was fully enhanced, however. The sentencing court erred in
considering the killing of another person as an aggravating factor.
Regarding the fourth aggravator, that the money taken from the store
was obtained for purposes of satisfying a drug debt, the defendant contends
that this aggravator is inappropriate because this circumstance merely
restates a material element of the conspiracy offense and the robbery
element of the felony murder offense. The purpose for committing this
robbery is not a material element of either the murder offense or the
conspiracy offense, but rather constitutes the nature and circumstances of
the crimes and is not improper for this reason.
The defendant also contends that this fourth aggravator is
inappropriate because the record contains no evidence or information that
would support the finding that the purpose of the robbery was to obtain
money to satisfy a drug debt. During its pronouncement of the sentence and
explanation of sentencing factors, the sentencing court declared that it
was considering testimony presented during a previous trial before the same
judge involving the defendant's accomplice, Bernard McGuire, and stated
that "the money that was robbed from the mart that day was obtained for
purposes of satisfying a drug debt." Record at 275. The defendant argues
that the trial court erred in considering evidence from the McGuire trial,
which was not presented during the defendant's sentencing proceeding, in
violation of his due process rights under the Fourteenth Amendment to the
U.S. Constitution and state statutory sentencing procedures.
As a general rule, a trial court may not take judicial notice of its
own records in another case previously before the court, even on a related
subject and with related parties.[3] State v. Hicks, 525 N.E.2d 316, 317
(Ind. 1988); Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985); Kennedy
v. Jester, 700 N.E.2d 1170, 1173 (Ind. Ct. App. 1998); Woods, v. State, 654
N.E.2d 1153, 1155 (Ind. Ct. App. 1995); State v. Peters, 637 N.E.2d 145,
150 n.3 (Ind. Ct. App. 1994); Bane v. State, 579 N.E.2d 1339, 1340-41 (Ind.
Ct. App. 1991).
Even if the trial court erred in considering the third and fourth
aggravating circumstances, two valid aggravating circumstances remain: the
defendant's recruitment of others in the planning and commission of the
offense, and his role as the primary actor in committing the robbery and
the killing. Because the trial court's decisions to enhance the felony
murder and conspiracy sentences and to impose consecutive sentences are
thus supported by proper aggravating circumstances, we decline to reverse.
Manifestly Unreasonable Sentence
Urging that there are no proper aggravating circumstances surrounding
the nature of the offense and the character of the offender and that the
trial court found six significant mitigating circumstances, which the
defendant contends are overwhelming, the defendant argues that the enhanced
sentence of sixty-five years for the murder and the consecutive-running
enhanced sentence of twenty years for the conspiracy to commit robbery are
manifestly unreasonable.
Sentencing is normally left to the sound discretion of the trial
court. Elmore v. State, 657 N.E.2d 1216, 1219 (Ind. 1995). Although this
Court is empowered to review and revise criminal sentences, we will not do
so unless the sentence is "'manifestly unreasonable in light of the nature
of the offense and the character of the offender.'" Prowell v. State, 687
N.E.2d 563, 568 (Ind. 1997) (quoting Ind. Appellate Rule 17(B)), cert.
denied 525 U.S. 841, 119 S.Ct. 104, 142 L.Ed.2d 83 (1998). Additionally,
"'the issue is not whether in our judgment the sentence is unreasonable,
but whether it is clearly, plainly, and obviously so.'" Thacker, 709
N.E.2d at 10 (quoting Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998));
Prowell, 687 N.E.2d at 568.
The trial court found various mitigating circumstances: the defendant
showed acceptance of responsibility for his criminal conduct and entered a
plea of guilty, appeared remorseful for his conduct, admitted his
involvement immediately to the police, lacked a criminal history, provided
testimony at the trial of a co-defendant, and had a strong history of
family support. We consider these along with the valid aggravating
circumstances. Considering the nature of the offenses and the character of
the offender, we are not convinced that the sentence in this case is
clearly, plainly, and obviously unreasonable. We decline to revise the
sentence.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs in result.
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[1] Ind. Code § 35-42-1-1.
[2] Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.
[3] Exceptions to this general rule have been recognized. See, e.g.,
State v. Hicks, 525 N.E.2d 316, 317-18 (Ind. 1988); Szymenski v. State, 500
N.E.2d 213, 215 (Ind. Ct. App. 1986).