ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John M. Eisele Jeffrey Modisett
Anderson, Indiana Attorney General
James D. Dimitri
Deputy Attorney General
Indianapolis, Indiana
________________________________________________
In The
INDIANA SUPREME COURT
JOHN R. BACHER, )
Defendant-Appellant, )
)
v. ) 48S00-9804-CR-237
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Judge
Cause No. 48D03-9502-CF-070
________________________________________________
On Direct Appeal
________________________________________________
January 6, 2000
DICKSON, Justice
In this direct appeal, the defendant-appellant, John R. Bacher,
challenges his sixty-year sentence for the murder[1] of his wife, Janet
Odle (Bacher).
After the jury found the defendant guilty of murder, the judge imposed
a sentence of sixty years. On direct appeal, this Court affirmed the trial
court's conviction but remanded the case to the trial court for a new
sentencing hearing because the trial court's sentencing statement contained
questionable aggravating circumstances and failed to discuss a proffered
mitigating circumstance. Bacher v. State, 686 N.E.2d 791, 801-02 (Ind.
1997). The trial court conducted a resentencing hearing, finding
"sufficient aggravating circumstances to enhance the sentence" and no
mitigating circumstances, Record at 79, and reimposed a sentence of sixty
years.[2] In this direct appeal, we understand the defendant to present
two claims regarding his sentence: (1) that it is manifestly unreasonable;
and (2) that the trial court abused its discretion.
The defendant first contends that the maximum sentence of sixty years
is manifestly unreasonable. Upon appellate review, a sentence may be
revised if found to be manifestly unreasonable "in light of the nature of
the offense and the character of the offender." Ind. Appellate Rule 17(B).
Because this identical claim, involving the same offender, offense, and
sentence, was presented and rejected in the defendant's first appeal,
Bacher, 686 N.E.2d at 801, we decline to reconsider it here.
Second, the defendant claims that the trial court abused its
discretion by failing to follow this Court's directions when it once again
imposed the maximum sentence of sixty years.[3] The "improper" aggravating
circumstances that the defendant identifies relate to the impact of the
murder upon the victim's family: despair and grief suffered by the
victim's family, financial obligations placed on the victim's family, the
defendant's abuse, deceit, and breach of the trust between the victim and
her mother, the defendant's actions and misrepresentations about his
financial affairs and past employment endeavors so that defendant could
cultivate a relationship with the victim, the defendant's breach of the
trust in his marital relationship, and the defendant's lack of remorse.
Determining the appropriate sentence is within the trial court's
discretion, and the trial court will be reversed only upon a showing of
manifest abuse of discretion. Archer v. State, 689 N.E.2d 678, 683 (Ind.
1997); Carter v. State, 686 N.E.2d 1254, 1263 (Ind. 1997). The trial court
has within its discretion the ability to determine whether the presumptive
sentence for a crime will be increased or decreased because of aggravating
or mitigating circumstances. Archer, 689 N.E.2d at 683. The weighing of
aggravating and mitigating factors is also within the trial court's
discretion. Carter, 686 N.E.2d at 1263. When a trial court enhances a
presumptive sentence, it must state its reasons for doing so, identifying
all significant aggravating and mitigating factors; stating the facts and
reasons that lead the court to find the existence of each such
circumstance; and demonstrating that the court has evaluated and balanced
the aggravating and mitigating factors in determining the sentence.
Crawley v. State, 677 N.E.2d 520, 521-22 (Ind. 1997); Morgan v. State, 675
N.E.2d 1067, 1073 (Ind. 1996). The trial court must state these reasons in
order to guard against arbitrary sentences and to provide an adequate basis
for appellate review. Morgan, 675 N.E.2d at 1074.
In enhancing the presumptive sentence by twenty years, the sentencing
court, in its sentencing order, identified several aggravating
circumstances: the emotional and financial impact of the murder upon the
victim's family, the defendant's abuse of his relationship with the
victim's mother to establish a relationship with the victim, the
defendant's character,[4] the defendant's violation of the trust in his
relationship with the victim,[5] and the defendant's lack of remorse.[6]
Regarding a sentencing court's use of impact upon the victim's family
as an aggravating circumstance, our earlier decision in this case
instructed:
[U]nder normal circumstances the impact upon family is not an
aggravating circumstance for purposes of sentencing. The impact on
others may qualify as an aggravator in certain cases but "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."
We 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. In the present case,
nothing in the trial court's statement at sentencing suggests that the
impact on the victim's children and parents is of the type so distinct
so as to rise to the level of an aggravating circumstance.
Bacher, 686 N.E.2d at 801 (citations omitted).
In the sentencing hearing conducted upon remand, the trial court
acknowledged our instruction:
The Supreme Court noted that in the present case nothing in the trial
court statement at sentencing should suggest the impact of the
victim's children and parents is of the type so distinct as to rise to
the level of an aggravating circumstance. This sentencing hearing
here today, once again the daughter and mother of the victim had
testified and the daughter, through a letter from her brother, also
indicates continuing despair and grief on the part of the family.
This murder had affected this family far beyond the sentencing, the
first . . . sentencing in this case. The Court also noted that in the
pre-sentence report that there was certain financial obligations that
were placed upon the family because of the demise of the victim in
this case that had to be fulfilled by members of the family because of
the death. And this has also created not only an emotional impact on
the family, but a financial burden. So, [the sentencing court] finds
that in this particular case that [the sentencing] Court is justified
in finding that the impact on the family members is an aggravated
circumstance. . . .
Record at 108-09. The sentencing court also found significant the way in
which "the defendant made contact with the family" and "used his friendship
with the mother to develop a friendship with the victim." Record at 109.
In its ruling, the court stated that the defendant "abused his relationship
with the victim's mother to establish a relationship with the victim, which
is also deceitful and dishonest, which . . . placed a greater burden upon
the mother in this case because she feels as though she's also victimized
not only by a loss of a daughter, but by her friendship and trust and
reliability in this case." Record 109-10.
We are not convinced that the trial court's statement at sentencing
demonstrates that "the impact on the victim's children and parents is of
the type so distinct so as to rise to the level of an aggravating
circumstance." See Bacher, 686 N.E.2d at 801. Nevertheless, even if the
sentencing court in this case improperly used victim family impact as an
aggravating circumstance, the sentencing court did find at least one valid
aggravating factor. A single aggravating circumstance is adequate to
justify a sentence enhancement. Gibson v. State, 702 N.E.2d 707, 710 (Ind.
1998); Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997). When a
sentencing court improperly applies an aggravating circumstance, but other
valid aggravating circumstances do exist, a sentence enhancement may still
be upheld. Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709,
715 (Ind. 1998).
Relying upon Indiana Code section 35-38-1-7.1(c)(6), the defendant
contends that he has led a law-abiding life since 1972 and therefore that
the court should have found mitigating circumstances. In making this
claim, the defendant asserts that the trial court incorrectly applied, as a
criminal history, "three instances of involvement with the criminal justice
system to find that there were no mitigating circumstances in this case,"
Brief of Appellant at 6, and that "[t]he trial court has disregarded facts
that would tend to mitigate this sentence," id. at 9 (citing Widener v.
State, 659 N.E.2d 529, 534 (Ind. 1995)). In reviewing the defendant's
criminal history, the court noted:
In regards to the mitigated circumstance of prior criminal history, .
. . [t]he defendant does have prior criminal history, although it is .
. . I think the pre-sentence report only communicates two incidents
with the criminal justice system, one being an AWOL from the Army in
1972, speeding in 1988, and Public Intoxication in 1991. The Court
finds that AWOL is very serious. Once again the defendant has shown
that he is not capable of fulfilling a relationship with trust and
confidence placed in him by others. In the AWOL, the United States
Government placed trust and confidence in Mr. Bacher by saying that
you can become a member of the military. He reflected his attitude on
this gift by the United States Government by becoming AWOL. It's
similar to the relationship he developed here with the victim in this
case. Developing a relationship in which he really had no intentions
of fulfilling the duties and obligations of marriage, marriage
present. So, the Court find[s] that there are no mitigating
circumstances in this case.
Record at 110-11. The defendant contends that these findings of a prior
criminal history "are not supported by the record." Brief of Appellant at
8. Regarding the AWOL incident, the defendant argues that the incident
occurred in 1972 and was handled internally by the Army and that the
defendant continued to serve in the Army, receiving an honorable discharge
in 1983. Regarding the public intoxication incident, the defendant argues
that this charge has not been reduced to a conviction.
A sentencing court may consider as a mitigating circumstance that the
defendant "has no history of delinquency or criminal activity or the person
has led a law-abiding life for a substantial period before commission of
the crime." Ind. Code § 35-38-1-7.1(c)(6). Although a sentencing court
must consider all evidence of mitigating circumstances offered by the
defendant, the finding of a mitigating factor rests within the court's
discretion. Harris v. State, 659 N.E.2d 522, 528 (Ind. 1995) (citing
Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990)). "A court does not err
in failing to find mitigation when a mitigation claim is 'highly disputable
in nature, weight, or significance.'" Smith v. State, 670 N.E.2d 7, 8
(Ind. 1996) (quoting Wilkins v. State, 500 N.E.2d 747, 749 (Ind.1986)).
This Court has held that "allegations of prior criminal activity need not
be reduced to conviction in order to be considered a proper aggravating
factor." Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998) (citing Tunstill
v. State, 568 N.E.2d 539, 545 (Ind. 1991) (noting that a sentencing court
may properly consider as an aggravating factor prior arrests and pending
charges not reduced to convictions because they reflect the defendant's
character and indicate a risk of future crime)). While a failure to find
mitigating circumstances clearly supported by the record may imply that the
sentencing court improperly overlooked them, the court is obligated neither
to credit mitigating circumstances in the same manner as would the
defendant, nor to explain why he or she has chosen not to find mitigating
circumstance. Crawley, 677 N.E.2d at 523 (citing Johnson v. State, 580
N.E.2d 959, 961 (Ind. 1991); Hammons v. State, 493 N.E.2d 1250, 1254-55
(Ind. 1986)).
The sentencing court may determine within its sound discretion that
the three incidents constitute a criminal history. In so finding, the
sentencing court rejected the defendant's argument that he had led a law-
abiding life since 1972. Thus, the court did not abuse its discretion in
finding that no mitigating circumstances existed.
In this case, even if the sentencing court improperly considered
impact on the victim's family as an aggravating circumstance, the
sentencing court found at least one valid aggravating factor and no
mitigating factors. Because a single valid aggravating factor is adequate
to justify a sentence enhancement, the sentencing court did not abuse its
discretion in enhancing the defendant's sentence.
The defendant's sentence of sixty years is affirmed.
SHEPARD, C.J., and BOEHM, J., concur. RUCKER, J., dissents with
separate opinion in which SULLIVAN, J., concurs.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN M. EISELE JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
JAMES D. DIMITRI
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JOHN R. BACHER, )
)
Appellant-Defendant, )
)
vs. ) No. 48S00-9804-CR-237
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Judge
Cause No. 48D03-9502-CF-070
On Direct Appeal
January 6, 2000
RUCKER, Justice, dissenting
I respectfully dissent. I am not persuaded the nature of the offense
and the character of the offender justify the maximum sentence in this
case. I would remand with instructions that the trial court impose a
sentence of fifty (50) years.
SULLIVAN, J., concurs.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] At the time of the murder, our legislature prescribed a
presumptive sentence of forty years for a person who commits murder.
Ind.Code § 35-50-2-3(a) (1993). This sentence could be enhanced with no
more than twenty years for aggravating circumstances and reduced no more
than ten years for mitigating circumstances. Id.
[3] In the first appeal, we remanded for a new sentencing hearing
after noting our concerns about "the aggravating circumstances and the fact
that the trial court failed to discuss the proferred mitigating
circumstances of lack of prior history of criminal conduct" and observed
that the sentence "contains the maximum enhancement permitted by law and
should, therefore, be reserved for the very worst offenses and offenders."
Bacher, 686 N.E.2d at 802.
[4] The court found that "the actions and behavior of the defendant
represented a personality and character bent towards evil and
misrepresentation." Record at 111. The court also characterized the
defendant's actions as "deceitful and dishonest" and noted that the
defendant's actions show "that he is not capable of fulfilling a
relationship with trust and confidence placed in him by others." Record at
110. Considering the evidence of lies and misrepresentations, the court
concluded that the defendant "shows a personality character of the type of
person this society needs to be protected from." Record at 111. The
defendant's character is a valid aggravating factor. See Cooper v. State,
687 N.E.2d 350, 354 (Ind. 1997) (noting that the Indiana Code § 35-38-1-
7.1(a)(3)(B) requires the sentencing court to consider the defendant's
character in making its determination and recognizing character as an
aggravating factor) (citing Wray v. State, 547 N.E.2d 1062, 1068
(Ind.1989)).
[5] The sentencing court stated that "[t]his crime was particularly
heinous in the fact that [the defendant] used the trust of the marital
relationship to put himself in position . . . once the victim in this case
found out that the defendant was not in fact the person she thought he was,
became suspicious and distrustful. The defendant reacted in such a way . .
. in a way of killing her." Record at 111-12. Being in a "position of
trust" with the victim is a valid aggravating circumstance. See Edgecomb
v. State, 673 N.E.2d 1185, 1198 (Ind. 1996) (noting that being a "neighbor"
who occasionally borrowed things from and casually conversed with the
victim, while encompassing a higher degree of societal relationship and
philial responsibility, is not a "position of trust" warranting
consideration as an aggravating circumstance) (citing Wesby v. State, 535
N.E.2d 133 (Ind. 1989) (affirming a trial court's use as an aggravating
factor the fact that a "position of trust" existed between the defendant
and the victim where the defendant was convicted of robbing and murdering a
woman who had known the defendant since childhood, as she had formerly been
the girlfriend of the defendant's father)); Martin v. State, 535 N.E.2d 493
(Ind. 1989) (affirming a trial court's finding of a "position of trust"
where the defendant, a live-in boyfriend, beat his girlfriend's son to
death while babysitting).
[6] The sentencing court stated, "[The defendant] was very cavalier
about the process, he showed lack of remorse, and the Court also finds that
that is an aggravated circumstance in this case." Record at 112. This
Court has held that a sentencing court may consider as a modest aggravating
circumstance the fact that a defendant lacks remorse and insists upon his
innocence. See Bacher, 686 N.E.2d at 801; Owens v. State, 544 N.E.2d 1375,
1379 (Ind. 1989).