August 18, 2004

Indiana Decisions - Three today from the Court of Appeals

Tyson J. Wilkie v. State of Indiana (8/18/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

In October 2003, Tyson Wilkie pleaded guilty to two counts of Causing Death When Operating a Motor Vehicle With a Schedule I Controlled Substance in the Body, both as Class C felonies. The trial court sentenced Wilkie to the maximum sentence of eight years on each count and ordered him to serve those sentences concurrently. Wilkie now appeals and raises the following issues for review: 1. Whether the trial court abused its discretion when it imposed the eight-year sentence. 2. Whether Wilkie’s eight-year sentence is inappropriate in light of the nature of the offense and his character. 3. Whether the trial court abused its discretion when it denied Wilkie’s request that he be given pre-trial credit for 299 days he spent on home detention prior to sentencing. We affirm. * * *

The trial court identified two aggravating factors: (1) the risk that Wilkie would commit another crime, and 2) he was in need of rehabilitation best provided by incarceration. The court identified no mitigating factors. The court then sentenced him to eight years on each count and, consistent with the plea agreement, ordered Wilkie to serve those terms concurrently. See footnote Wilkie now appeals.

Issue One: Aggravators and Mitigators. * * * A single aggravating factor is sufficient to justify an enhanced sentence. Lewis v. State, 759 N.E.2d 1077, 1087 (Ind. Ct. App. 2001), trans. denied. See footnote. * * *

A. Mitigating Factors. * * * The trial court is not obligated to find mitigating factors or explain why it has chosen not to do so. * * *

B. Aggravating Factors. * * * [T]he trial court’s statements during the sentencing hearing clearly set forth the evidence on which it relied in determining the presence of the two aggravating factors. The information contained in the Pre-Sentence Investigation Report, in addition to the testimony at the sentencing hearing, supports the aggravating factors identified by the court. The trial court did not abuse its discretion when it found two aggravating factors, and those aggravators justify the court’s imposition of an eight-year sentence. * * *

[Under the heading "Issue Two: Indiana Appellate Rule 7(B)" the Court has a very interesting discussion of plea agreements which should be read in full by those interested in sentencing. Some quotes:

Initially, the State asserts that because he pleaded guilty pursuant to a plea agreement, Wilkie is barred from challenging the appropriateness of his sentence. In support, the State directs us to our recent decision in Gist v. State, 804 N.E.2d 1204, 1206 (Ind. Ct. App. 2004). * * * Gist is distinguishable because unlike the plea agreement in that case, the agreement here did not contain a provision in which the State (1) agreed to limit its sentencing recommendation to the presumptive term, and (2) acknowledged that the defendant was induced to enter into the agreement based on that sentencing recommendation. Rather, Wilkie’s plea agreement provides in relevant part that “[t]he defendant understands a person who commits a [C]lass C felony shall be imprisoned for a fixed term of four years with not more than four years added for aggravating circumstances or not more than two years subtracted for mitigating circumstances.” In other words, Wilkie’s plea agreement contained boilerplate language regarding the possible sentencing range for the class of offense to which he was pleading guilty. By signing an agreement in which he attested only that he understood the range of sentences which the trial court could impose by law, Wilkie did not in any way agree that a maximum sentence was appropriate.

Further, we disagree with the decision in Gist to the extent that it suggests that anytime a defendant voluntarily enters into a plea agreement, that defendant is thereafter barred from challenging his sentence as inappropriate.]

Issue Three: Pre-Trial Credit. * * * The trial court did not abuse its discretion when it refused to give Wilkie pre-trial credit for the 299 days he spent on home detention. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.

Footnote: A person who commits a Class C felony shall be imprisoned for a fixed term of four (4) years, with not more than four (4) years added for aggravating circumstances or not more than two (2) years subtracted for mitigating circumstances. Ind. Code § 35-50-2-6(a).

Footnote: On June 24, 2004, after briefing was completed in this case, the United States Supreme Court issued its opinion in Blakely v. Washington, -- U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that decision, but we leave for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B).

In the Matter of the Supervised Administration of the Estate of Ada K. Goldman (8/18/04 IndCtApp) [Estates; Attorney Fees]
May, Judge
Dwight Goldman (“Goldman”), the sole beneficiary of a 1996 will by Ada Goldman (“decedent”), appeals the trial court’s grant of attorney fees to Jerry McCain, granddaughter of decedent, who successfully contested the validity of the 1996 will in order to have decedent’s 1975 will probated instead. Goldman raises two issues, which we consolidate and restate as whether the trial court’s grant of attorney fees was erroneous. * * *

Because neither of Goldman’s arguments warrants reversal of the trial court’s award of attorney fees to McCain, we affirm.
SULLIVAN, J., and VAIDIK, J., concur.

Jason D. Wilder v. State of Indiana (8/18/04 IndCtApp) [Criminal Law & Procedure; Constitutional Law]
May, Judge
Jason Wilder appeals the denial of his motion to correct error. Wilder raises one issue on appeal, which we restate as whether his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because his jury venire included only one African-American . We affirm in part and vacate in part. * * *

While we find no error in the selection of Wilder’s jury venire, we must address the trial court’s merger of Wilder’s felony murder conviction with his murder conviction. Wilder has not presented this issue; however, it is well established that a violation of double jeopardy protections is fundamental error and must be addressed upon appeal sua sponte. Dixon v. State, 772 N.E.2d 110, 115 (Ind. Ct. App. 2002). At the sentencing hearing the trial court considered argument of counsel with respect to the issue of double jeopardy and stated: “[the court] now finds the offense of Felony Murder as charged in Count II is merged with and becomes a part of the Murder charged in Count I.” (Appellant’s App. at 138.) The trial court then went on to sentence Wilder on the Count I murder and Count III attempted robbery.

A double jeopardy violation occurs when judgment of convictions are entered and cannot be remedied by the “practical effect” of concurrent sentences or by merger after conviction has been entered. Jones v. State, 807 N.E.2d 58, 67 (Ind. Ct. App. 2004). In appropriate circumstances, a defendant may be convicted and sentenced for both intentional murder and the felony that serves as the predicate for a felony murder charge so long as the felony murder conviction is vacated. Henson v. State, 707 N.E.2d 792, 794 (Ind. 1999).

The felony murder conviction should have been vacated instead of merged. [cites omitted] Accordingly, although we affirm the murder and the attempted robbery convictions, we instruct the trial court to vacate the felony murder conviction. For the forgoing reasons, we affirm in part and vacate in part.
SULLIVAN, J., and VAIDIK, J., concur.

Posted by Marcia Oddi at August 18, 2004 02:13 PM