Attorney for Appellant
Lon D. Bryan
Bryan and Bryan
Muncie, Indiana
Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Kathryn Janeway
Deputy Attorney General
Indianapolis, Indiana
IN THE
INDIANA SUPREME COURT
ROBERT LAWRENCE HICKS,
Appellant (Defendant below)
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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) Supreme Court No.
) 68S00-9812-CR-00846
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APPEAL FROM THE RANDOLPH CIRCUIT COURT
The Honorable Jan Chalfant, Judge
Cause No. 68C01-9505-CF-13
ON DIRECT APPEAL
May 30, 2000
SULLIVAN, Justice.
Defendant received a sentence of 60 years for murdering Nicole Koontz.
The trial court indicated that the 60 years were comprised of a 50-year
presumptive term and a ten-year enhancement. On Defendant’s first direct
appeal, this court remanded the case to the trial court for resentencing,
finding that Defendant had been sentenced under the wrong statute. The
trial court resentenced Defendant to 60 years, this time comprised of a 40-
year presumptive sentence and a 20-year enhancement. Defendant appeals,
claiming the increase in his sentence enhancement from ten to 20 years was
improper. Our analysis finds the revised sentence to be proper.
We have jurisdiction over this direct appeal because the sentence
exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
Background
Defendant was convicted of Murder[1] and Feticide[2] for the July,
1994, murder of Nicole Lynn Koontz and the 29-week-old fetus she was
carrying. On February 13, 1996, Defendant was sentenced to at total of 60
years for the murder conviction, with four years suspended, and four years
for the feticide conviction plus a four-year enhancement, with four years
suspended. The trial court ordered Defendant to serve the feticide
sentence consecutive to the murder sentence.
This Court affirmed Defendant’s convictions on direct appeal, but
remanded the case for resentencing on the murder conviction because the
trial court applied the wrong sentencing statute. See Hicks v. State, 690
N.E.2d 215, 224 (Ind. 1997). The trial court had indicated that the
sentence was comprised of a presumptive 50-year term plus a ten-year
enhancement. In fact, the legislature had provided that a 40-year
presumptive term, subject to a 20-year enhancement, applied to murders
occurring between July 1, 1994 and May 5, 1995.[3] We concluded that
because the trial court had been careful and precise in weighing the
aggravating and mitigating factors when rendering the sentence, there was
reason to believe that its sentence might have been different had the 40-
year presumptive sentence been applied. Accordingly, we remanded for new
sentencing. See id.
On September 15, 1998, the trial court conducted a new sentencing
hearing and sentenced Defendant under the proper statute to 60 years
comprised of a presumptive term of 40 years for murder plus a 20-year
enhancement.
Discussion
Defendant argues that the trial court erred when it resentenced him
and increased the enhancement period of his original sentence from ten to
20 years. It is true that, upon resentencing a defendant, a sentencing
court cannot “impose a more severe penalty than that originally imposed
unless the court includes in the record of the sentencing hearing a
statement of the court’s reasons for selecting the sentence that it imposes
which includes reliance upon identifiable conduct on the part of the
petitioner that occurred after the imposition of the original sentence.”
Ind. Post-Conviction Rule 1(10)(b). But that is not what happened in this
case.
Here, the resentencing court incorporated by reference the same
aggravators and one mitigator recited by the trial court at the first
sentencing hearing and agreed that the “aggravating circumstances
substantially and totally outweigh[ed]” the mitigating circumstance. (R.
at 35-36.) With more than adequate justification,[4] the court imposed
upon Defendant the maximum enhancement and maximum 60-year sentence in both
instances. The resentencing court did not impose a more severe penalty or
sentence upon Defendant when it resentenced him; the term remained the same
and the sentence does not violate P-C.R. 1(10)(b).
Defendant also supports his claim by citing to North Carolina v.
Pearce, 395 U.S. 711, (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794 (1989), a case holding that “whenever a judge imposes a
more severe sentence upon a defendant after a new trial, the reasons for
his doing so must affirmatively appear.” Id. at 726 (emphases added).
This case is inapplicable to Defendant for three reasons. First, as we
concluded supra, the resentencing court did not impose a more severe
sentence upon Defendant. Second, the harm that the Pearce case seeks to
prevent upon resentencing is not the imposition of greater sentences but
the “vindictiveness of a sentencing judge” for a defendant’s successful
appeal of the court’s holding. Alabama, 490 U.S. at 799. Defendant does
not present evidence to suggest that the court increased his enhancement
period from ten to 20 years because he successfully appealed his original
sentence.[5] Third, Pearce and the Indiana cases Defendant cites all
involve situations where the defendant improperly received an increased
total sentence upon retrial or plea negotiations after an original
conviction was set aside due to the defendant’s successful challenge of a
guilty plea. See Ogburn v. State, 549 N.E.2d 389, 391-92 (Ind. Ct. App.
1990) (original sentence of six years increased to seven after the
defendant was granted post-conviction relief, again pled guilty to the same
crimes, and was resentenced); Newville, 511 N.E.2d at 1049 (original
sentence of 40 years increased to 45 after retrial); Ballard v. State, 262
Ind. 482, 499-500, 318 N.E.2d 798, 809-10 (1974) (original sentence of two
to five years increased to 10 to 25 years after retrial). In the present
case, Defendant was not retried and he did not receive an increased
sentence.
Conclusion
We affirm the trial court’s judgment.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ. concur.
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[1] Ind. Code § 35-42-1-1 (1993).
[2] Id. at § 35-42-1-6.
[3] The 1994 General Assembly twice amended Ind. Code § 35-50-2-3. See
P.L. 164-1994 and P.L. 158-1994. Because the second amendment did not
incorporate the presumptive sentence changes of the first amendment and
both amendments became effective July 1, 1994, there was some confusion
regarding the presumptive sentence for murders committed between July 1,
1994, and May 5, 1995. This Court resolved the problem in Smith v. State,
675 N.E.2d 693 (Ind. 1996).
[4] In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court limited discretion to enhance each
sentence to reflect aggravating circumstances or reduce the sentence to
reflect mitigating circumstances. When the trial court imposes a sentence
other than the presumptive sentence, this Court will examine the record to
insure that the court explained its reasons for selecting the sentence it
imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons
v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)), reh’g denied. The trial
court’s statement of reasons must include the following components: (1)
identification of all significant aggravating and mitigating circumstances;
(2) the specific facts and reasons that lead the court to find the
existence of each such circumstance; and (3) an articulation demonstrating
that the mitigating and aggravating circumstances have been evaluated and
balanced in determining the sentence. Mitchem v. State, 685 N.E.2d 671,
678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
[5] There is no presumption of vindictiveness even in cases where the court
increases a defendant’s sentence over that of his or her original sentence.
See Alabama, 490 U.S. at 799. The defendant must affirmatively show a
“reasonable likelihood” that his or her sentence was increased due to
“actual vindictiveness” on the part of the sentencer. Id.