ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Skinner Jeffrey A. Modisett
Marion County Public Defender Agency Attorney General of
Indiana
Indianapolis, Indiana
Janet Brown Mallett
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
KERRIE PRICE, ) Supreme Court No.
Defendant-Appellant, ) 49S00-9802-CR-84
)
v. )
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION
The Honorable Z. Mae Jimison
Cause No. 49G20-9701-CF-6216
________________________________________________
On Direct Appeal
March 16, 2000
DICKSON, Justice
The defendant-appellant, Kerrie Price, was convicted of dealing in
cocaine, a class A felony;[1] possession of cocaine, a class C felony;[2]
dealing in marijuana, a class D felony;[3] possession of marijuana, a class
D felony;[4] dealing in cocaine, a class B felony;[5] and possession of
cocaine, a class D felony.[6] After the jury returned the verdicts, the
defendant pled guilty to a habitual offender charge.[7] At sentencing, the
trial court found that the three possession charges were included within
the related dealing charges and sentenced the defendant to 35 years for
dealing in cocaine as a class A felony, 20 years for dealing in cocaine as
a class B felony, and 3 years for dealing in marijuana as a class D felony,
to be served consecutively. The trial court enhanced the sentence for the
class A felony by 30 years based upon the habitual offender finding. The
defendant appeals, claiming erroneous sentencing and erroneous exclusion of
two eligible jurors based upon their age.
Sentencing
The defendant claims that the trial court erroneously considered two
improper aggravators and failed to state reasons for its decision to run
the sentences consecutively. The defendant argues that, although the trial
court did consider other aggravators, the weight of those aggravators would
not support the enhancement and that the trial court would probably have
sentenced the defendant differently if those improper aggravators were not
considered. At sentencing, the trial court found the following six
aggravators: (1) that the defendant was on probation at the time of the
offense; (2) that the defendant had a history of criminal activity that
includes violence; (3) that the defendant was in need of correctional or
rehabilitative treatment that can best be provided in a penal facility; (4)
that imposing a reduced sentence or suspending the sentence and imposing
probation would depreciate the seriousness of the crime; (5) that the
offense was "designed to affect the public and directed at the public at
large"; and (6) that the offense "occurred in a neighborhood that is
depressed." Record at 432.
Sentencing lies within the discretion of the trial court. Battles v.
State, 688 N.E.2d 1230, 1235 (Ind. 1997). We review trial court sentencing
decisions only for abuse of discretion, including decisions to increase the
presumptive sentence or to run sentences consecutively due to aggravating
circumstances. Trowbridge v. State, 717 N.E.2d 138, 149 (Ind. 1999).
The defendant first claims that the trial court erroneously
considered the aggravator that imposition of a reduced sentence, suspension
of the sentence, or probation would depreciate the seriousness of the
crime. The defendant argues that this aggravator is only appropriate when
the trial court is considering imposing a sentence lower than the
presumptive sentence, which the defendant argues the trial court never did
in this case. We have previously found it improper for a trial court to
find as an aggravating factor that the imposition of a reduced sentence,
suspension of the sentence, or probation would depreciate the seriousness
of the crime. Garrett v. State,714 N.E.2d 618, 622 (Ind. 1999) (citing
Jones v. State, 675 N.E.2d 1084, 1088 (Ind. 1996)); Sweeney v. State, 704
N.E.2d 86, 109 (Ind. 1998).
Second, the defendant claims that the trial court erred in finding
that the defendant was in need of correctional treatment that would best be
provided by a correctional facility. The defendant, citing Battles v.
State, 688 N.E.2d 1230 (Ind. 1997), contends that the trial court failed to
support this with a specific statement establishing the defendant's needs
for the treatment. We agree that it is improper to impose an enhanced
sentence based upon a finding, without providing a specific statement
establishing the need, that the individual is in need of correctional or
rehabilitative treatment that can best be provided in a penal facility.
However, the trial court did not base the sentence solely upon these
two aggravators. Instead, the trial court based its decision upon six
identified aggravators, only two of which were improper. We have
frequently held that a single aggravating circumstance may be sufficient to
support an enhanced sentence. Garrett, 714 N.E.2d at 623; Barany v. State,
658 N.E.2d 60, 67 (Ind. 1995); Sweany v. State, 607 N.E.2d 387, 391 (Ind.
1993). If the trial court improperly applied an aggravator, but other
valid aggravators exist, a sentence enhancement may still be upheld.
Garrett, 714 N.E.2d at 623. See also Gibson v. State, 702 N.E.2d 707, 710
(Ind. 1998) (citing Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)).
In this case, the trial court's sentencing decision was supported by
its finding that the offense was committed while the defendant was on
probation and that the defendant had a lengthy criminal history, including
violence. In light of the other valid aggravating circumstances, the trial
court did not abuse its discretion in imposing an enhanced sentence.
The defendant also argues that the trial court failed to specify
separate reasons for running the sentences consecutively, as required by
Lindsey v. State, 485 N.E.2d 102, 108 (Ind. 1985). Although enhancing a
sentence and imposing consecutive sentences are separate and distinct
decisions, they are governed by the same statutory aggravating
circumstances. Lindsey, 485 N.E.2d at 108 (citing Ind. Code § 35-38-1-
7(b)). The same factors may be used to enhance a presumptive sentence and
to justify consecutive sentences. Miller v. State, 716 N.E.2d 367, 371
(Ind. 1999). See also Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999);
Reaves v. State, 586 N.E.2d 847, 852 (Ind. 1992). When a trial court
imposes consecutive sentences even though not required to do so by statute,
we examine the record to ensure that the court explained its reasons for
selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678, 683
(Ind. 1997). The trial court statement of reasons must include the
following components: (1) identification of significant aggravating and
mitigating circumstances; (2) specific facts supporting a finding of the
aggravators and mitigators; and (3) some statement demonstrating that the
trial court evaluated and balanced the mitigating and aggravating
circumstances in determining the sentence. Harris v. State, 716 N.E.2d
406, 413 (Ind. 1999); Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997);
Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).
In this case, the trial court found the defendant's prior criminal
history and the fact that he was on parole at the time of the offense to be
aggravating factors, and both are listed in Indiana Code section 35-38-1-
7.1(b) permitting trial court consideration when evaluating whether to
impose an enhanced sentence or consecutive sentences. The trial court also
identified four other aggravators and two mitigators and referred to the
facts upon which it based those findings. In addition, the trial court's
statement demonstrates that it evaluated and balanced the aggravators and
mitigators. We find no error in the trial court's sentence.
Exclusion of Jurors
The defendant next claims that the State unconstitutionally excluded
two jurors based solely upon their age. The defendant acknowledges that no
state or federal case has recognized youth as a protected class, but asks
this Court to find that such exclusion violates the Equal Protection Clause
of the U.S. Constitution by denying rights to both the defendant and the
prospective jurors.[8]
In this case, before the two potential jurors were questioned, the
prosecutor notified the trial court that it intended to exercise its
peremptory challenges. When the trial court asked the prosecutor to
identify the reasons for the strikes, the prosecutor stated that he
preferred not to have young people on the jury. The defendant objected
based upon the issue of age, and the prosecutor responded that he was not
required to provide any reason for using the peremptory challenges.
A party is generally not required to explain its reasons for
exercising a peremptory challenge, and the exercise is not subject to the
trial court's control. Shields v. State, 523 N.E.2d 411, 413 (Ind. 1988).
Although there is a strong presumption that the prosecution uses its
peremptory challenges to obtain a fair and impartial jury, id. at 413;
Phillips v. State, 496 N.E.2d 87, 88 (Ind. 1986), a defendant has a right
to be tried by a jury whose members are selected by non-discriminatory
criteria, Shields, 523 N.E.2d at 413. However, a defendant "is not
constitutionally entitled to a jury representative and proportionate of
every age group, or ethnic group, or educated . . . group in the district
in which the trial is held. A criminal defendant has no affirmative right
to a jury of a particular racial, gender, or age composition." U.S. v.
Maxwell, 160 F.3d 1071, 1075 (6th Cir. 1998).
The federal circuit courts of appeals that have expressly considered
the age issue in the juror exclusion context have rejected the claim that
age is a protected class under these circumstances. Weber v. Strippit,
Inc., 186 F.3d 907, 911 (8th Cir. 1999) (collecting cases). As the Sixth
Circuit noted, it is impossible to adequately define a group such as "young
adults." Maxwell, 160 F.3d at 1075 (quoting Ford v. Seabold, 841 F.2d 677,
682 n.2 (6th Cir. 1988)). In rejecting the age-based claim in Maxwell, the
court held that "[t]he practice of allowing peremptory challenges may be
overridden only for the strongest constitutional reasons, which the Supreme
Court has recognized in the cases of race and gender discrimination." Id.,
160 F.3d at 1076. See also Weber, 186 F.3d at 911 (quoting Maxwell and
declining to extend Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), to peremptory challenges based upon age). Furthermore,
"[r]easons such as age and marital status are legitimate reasons for the
exercise of peremptory challenges in cases analogous to [a narcotics
case]." U.S. v. Mojica, 984 F.2d 1426, 1451 (7th Cir. 1993). Other
federal circuit courts have accepted age as a legitimate race- and gender-
neutral factor supporting the exercise of peremptory challenges. Weber,
186 F.3d at 911 (collecting cases).
We agree with the federal circuits that age is not an impermissible
basis for using a peremptory challenge. We find no equal protection
violation.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-48-4-1.
[2] Ind. Code § 35-48-4-6.
[3] Ind. Code § 35-48-4-10.
[4] Ind. Code § 35-48-4-11.
[5] Ind. Code § 35-48-4-1.
[6] Ind. Code § 35-48-4-6.
[7] Ind. Code § 35-50-2-8.
[8] The defendant summarily alleges that the exclusion of these jurors
also violates Article I, Section 23 of the Indiana Constitution, but
presents no authority, reasoning, or argument to support his allegation.
Accordingly, the Indiana constitutional claim is waived for failure to
present a separate, cogent argument. Ind. Appellate Rule 8.3(A)(7); Barber
v. State, 715 N.E.2d 848, 851 n.2 (Ind. 1999); Valentin v. State, 688
N.E.2d 412, 413 (Ind. 1997).