Adkins v. State

mаjority does not Op. at 180. The counts.” why significant such a

explain it believes

strategic automatically flows from alteration Attebury filing, makes no

the belated habitual

claim of such alteration on either the above, underlying As stated

or the count. purpose allow the statute prepare a defense

defendant time Attebury seek a count. failed to

habitual prepare such a defense and

continuance to the truth the habitual offender

admitted

allegations. purpose of the statute has

been satisfied. all complied

The trial court with

requirements within its dis- and ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌‌​​‌​​‌​‌​​‌​‌​‌‍acted sound filing allowing

cretion in the belated Attebury count. sustained

habitual offender prejudice filing

no from the belated by failing appeal the issue for to seek

waived I affirm the trial court

a continuance. would respects.

in all

Phillip ADKINS, Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE of

No. 49A05-9803-CR-135. Appeals of Indiana.

Court

Dec. 1998. time could

not do because its lock. She part containing open of the safe upon coins. So the defendant’s order she nearby plastic money him handed white bag and filled it with the rolls coins from encounter, During Ms. Bullard the safe. this to that the defendant was had time observe sweatshirt, sweatpants a wearing black and them, gloves, red on Nike shoes with accents eyes. exposed mask that his and a black ski ordering employees all of the to After office, into rear the defendant crawl out thе door. Ms. Bullard immedi- backed ately reported incident. dialed 911 and apprehended a defendant was short The officers a hand- time later. Police recovered pair gloves gun person, from his a and a car, a ski mask from his and white black plastic money bag containing coins to- rolled $243.10, taling exactly amount almost missing Forty from restaurant. was occurred, Bullard minutes after crime Small, Indianapolis, Appellants Mark for by police to was takеn officers where the Defendant. arresting holding officers were the defen- General, Modisett, Jeffrey Attorney A. unequivocally dant. Bullard identified him General, Froug, Attorney In- Deputy Randi eyes as the At his and shoes robber. dianapolis, Appellee-Plaintiff. trial, for employees all of the store’s also identi-

fied the defendant’s shoes as ones the jury had robber worn. convicted de- OPINION Robbery fendant of and Criminal Confine- HOFFMAN, Judge. Senior ment, B The both Class felonies. two sentenced the defendant to consecutive Appellant-defendant Phillip appeals Adkins twenty-year Department terms at the of Cor- robbery, a B his convictions Class from rection, mitigating finding no fac- confinement, B felony, a Class and tors, factors, citing as “a judg- felony. The most favorable to the facts delinquent activity history of criminal ... are follows: ment as arrests, there have been four adult two 25,1997, January morning Jack- On robberies, were for of which conviction Bullard, manager Wendy’s restau- ie A-misdemeanor, all the which was an rest rant, working employees ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌‌​​‌​​‌​‌​​‌​‌​‌‍and five other were included, handgun except for one included prepare opening. at the restaurant alleged,” violation “a need for correctional defendant, gun, .38 holding a caliber pro- treatment that can rehabilitative best through the entered the restaurant unlocked penal facility,” commitment to vided pointed He at the em- back door. imposition “that the reduced sentence ployees them crawl into the res- and made depreciate would the seriousness point during the At some taurant office. 381). (R. crime.” robbery fired a into the the defendant shot (4) ceiling; he also threatened appeal, restaurant’s four On defendant raises they if did employees in the head shoot two issues: cooperate. (1) its the trial court abused dis- whether open by admitting Ms. Bullard’s Bullard to cretion

The defendant tоld Ms. defendant; safe, identification of the informed him she could which she (2) whether the trial court abused “unnecessarily suggestive,” its dis- found that alone by admitting

cretion into evidence require would not exclusion of the evidence. handgun proffered by Stroud, over 587 N.E.2d at 1338-39. objection alleging defendant's a de- ample Ms. Bullard had time to view custody; fective chain of the defendant at the time of the crime. She (3) jury’s whether the verdicts are contra- specificity clothes, shoes, identified with dictory, defective; and thus gloves and wearing, ski mask he was as well (4) whether the trial court abused its dis- having eyes seen his as she was forced at in sentencing cretion the defendant to gunpoint put the coins into money bag. (2) twenty-year terms. accurately She described these attributes argues The defendant first that the one- description and her matched that of the de procedure on-one identification used the unequivocally fendant. She identified the de

arresting approximately forty officers min- robber, merely fendant as the forty minutes robbery after impermissibly utes the was after he committed the crime. suggestive, and pre- thus both Ms. Bullard’s police The unduly did not use suggestive trial identification of the defendant as the procedures, only informing Ms. Bullard that robber, well as as her identification of him in they “thought they maybe” suspect. had a court, suppressed during should have been Nothing in suggests any the record that indi- the trial. When Ms. Bullard wаs taken to vidual identify told Ms. Bullard to defendant where, her, the site the officers informed the as robber. they “thought they maybe” suspect, had a only the defendant In addition to present challenging was the individual the one-on- procedure, police who was not a officer. one Because he was defendant raises the issue of only suspect present, the he was in whether the trial court hand- abused its ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌‌​​‌​​‌​‌​​‌​‌​‌‍discretion cuffs, car, police and next to refusing supрress a defendant in Ms. Bullard’s in-court maintains, procedure the identification was identification of the defendant. The record impermissibly suggestive. object reflects that defendant did not to the trial, clearly identification at so it pretrial The defendant concedes a preserved Furthermore, appeal. it is occurring immediately confrontation after well settled where a witness had an the commission of per the crime is not se oppоrtunity perpetrator to observe the dur unduly suggestive though even the accused is crime, ing the a basis for in-court identifica State, only suspect present. the v. Cook 403 exists, independent propriety tion of the of ¿raras, 860, (Ind.Ct.App.1980), 864 de State, pre-trial identification. See Brown v. one-on-one, “show-up” nied. confronta 221, (Ind.1991), denied, reh’g 577 N.E.2d proper tion is when reliable under the totali (Ind.1991), 583 N.E.2d 125 cert. denied 506 circumstances, (1) ty including of the the 1015, 639, U.S. S.Ct. L.Ed.2d 569 opportunity of the witness to view the crimi (1992); State, Wethington (2) crime; nal at the time of the the witness’ (Ind.1990). 502-03 As Ms. Bullard’s in-court (3) attention; degree accuracy of the of his identification of the defendant had such an criminal; (4) prior description or her of the basis, independent it was neither of abuse certainty the level of demonstrated the discretion nor fundamental error for the trial confrontation; (6) witness at the and the suppress court not to it. length of time between the crime the confrontation. Stroud v. Defendant next contends that the trial ¿raras, (Ind.Ct.App.1992), 1338-39 by admitting de court abused into its discretion handgun proffered by nied. The courts found “the value a evidence the image objection ... alleging witness’ observations while the the defendant’s a over de- custody. Although of the offender is in his mind” to chain fresh over fective Ms. Bul- inherently suggestive gun come nature of the lard testified that the was the same one circumstances. robbery, Lewis v. the defendant had used (Ind.1990), reh’g Finally, denied. an officer from the crime lab testified at trial if show-up gun even identification were was the same one taken from possession ty, reasonable trier to determine whether the trunk of the officer who took defendant, alleged was from the of fact could conclude that the defendant gun guilty beyond from the fact that officer Moore v. defect arises a reasonable doubt.” possession gun 1099, 1101 could not who took De definitively identify court. argues jury’s that the are fendant verdicts contradictory employ of the several because or exclusion of evi The admission crime, witness, present only ees at the entrusted to dence is determination Bullard, Ms. identified defendant Kelley of the trial court. v. Wat discretion by single robber. “Identification witness is son, (Ind.App.1997). robbery.” sufficient to sustain a conviction "willreverse a court’s decision We Id. trier of fact determined that Ms. discretion, is, only for an when abuse identificatiоn of the defendant was Bullard’s clearly action is erroneous the trial court’s All of the additional witness testi credible. against facts logic and effect of the evidence, mony, physical led as well as the Fur and circumstances before court. Id. jury to conclude that defendant commit thermore, only incon the fact that evidence robbery ted and confinement. affirm We clusively to a crime connects defendant the defendant’s convictions. weight to that evi affects the be accorded fact-finder, by the rather than affect dence (4) Finally, four appeals defendant on State, ing admissibility. its Hunter v. 578 grounds imposition the of two trial court’s (Ind.1991), denied; 353, reh’g see N.E.2d 357 twenty-year He sentences. ar- also, Indiana, 547, 272 Ind. 400 Johnson v. first, gues, inappropriate- that the trial court (1980) (“That 132, the connection 133 ly history activity of considered his criminal is inconclusive affects the with the crime circumstance; second, an aggravаting as that weight it the evidence but does render of its em- the trial court abused discretion inadmissible.”). ploying aggravator the for rehabilita- “need penal facility” tive in a to enhance treatment inability spite of one officer’s conviction; presumptive for each sentence identify took as that of which he third, it of for the that was abuse discretion scene, the has possession at the defendant trial to find an circum- court in the chain of failed to establish defect presumptive sentence would stance that the custody gun’s to render the admis sufficient crime”; “depreciate of the seriousness clearly The officer testified sion erroneous. and, finally, “manifestly is that the sentence weapon he from the defendant took the unreasonable.” immediately it in his trunk until secured turning crime it over to crime lab. The that, provides sen- I.C. 35-38-1-3 when gun by technician its serial lab identified person felony, tencing a its from number аnd testified that condition hearing_” “must conduct a and “make a unchanged. property room until trial was including: hearing, ... a state- record of in the find no error or abuse discretion We selecting ment reasons for of court’s gun. court’s admission of the imposes.” sentencing sentence that it At the matter, hearing in this the trial court identi- contention, third Defendant’s (3) aggravating fied three factors considered jury’s for be verdicts are defective imposed: determining the sentеnce to be contradictory, appears grounded ing history delinquent “a of ... criminal supports claim that insufficient evidence arrests, prior there have been four adult such, to a As it is tantamount the verdict. robberies, one conviction of which were its request of this court that substitute A-misdemeanor, all the rest which was an jury. judgment for that of the We decline included, handgun except for one included sufficiency the evidence so. do “When alleged,” “a neеd for correctional probative violation challenged, is we consider pro- that can best be rehabilitative treatment inferences there evidence reasonable penal facility,” verdict, to a re vided commitment support which without from assessing imposition “that the reduced weighing the credibili- evidence State, depreciate 469, (Ind.1993), would seriousness 622 N.E.2d reh’g (R. 381). Furthermore, crime.” denied. may “[a] trial court ‘any evaluate other factor which reflects on argues sentencing The defendant that the character, good defendant’s or bad’ when inappropriately applied history court his determining appropriate sentence to im found, activity. criminal The court “that pose.” Taylor, 695 N.E.2d at 121. juvenile however, history, there is no there arrests, prior been four adult two of The A-misdemeanor convic robberies, conviction, which were for tion is support sufficient to the sentence en misdemeanor, which was an all the rest hancement before us. The trial prop court included, except handgun for one included erly applied the defendant’s history, alleged.” violations and we will not reweigh undertake to histori cal factors that were within the court’s dis It within the discretion of the trial cretion to consider. court to determine whether a aggra sentence will be increased because of challenges defendant next State, vating circumstances. Isaacs v. 673 the trial court’s mere recitation of the statu 757, (Ind.1996); Widener v. tory factor “need for rehabilitative treat State, The ment.” It is well ‘perfuncto settled that “[a] correctly defendant asserts that “a record of ry recitation’ of factors does not arrest, more, without does not establish the provide adequate appropriate review of the historical fact that a defendant committed a an ness of enhancеd sentence.” Battles v. may properly offense and not be 1230, 1236(Ind.1997); Hol considered as evidence of criminal his (Ind. lins v. tory.” Tunstill v. 544 1997); Smith v. 697- (Ind.1991). However, supreme our court has (Ind.1996), remanded new sentence recently held more that “such information determination, (Ind. aff'd, 695 N.E.2d 909 may be relevant to the trial court’s assess 1998); State, N.E.2d, 1262, Mayberry v. 670 ment of the defendant’s character in terms of (Ind.1996). relying 1270-71 “When on this that risk he will commit another crime.” particular aggravator support to an enhanced (Ind. Stаte, 1047, Ealy v. 1058 sentence, provide spe the trial court must a 1997). “prior The court has that also held why particular cific statement of defen pending charges arrests and not reduced to dant needs corrective or rehabilitative treat properly convictions are considered as reflec provided by penal ment that could best be a tive of defendant’s character and indicative of facility period in a of time excess of the —for risk of future crime.” Beason v. State 690 Battles, presumptive sentence.” (Ind.1998) 277, 281 N.E.2d misap at 1236. The court Battles found the plication aggravator of this to be harmless In the most recent case address given lengthy error the defendant’s ing propriety considering of an arrest ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌‌​​‌​​‌​‌​​‌​‌​‌‍or history. Id. aggravating arrest record as an circum stance, hand, supreme court held a the case at such a “fall “appropriately aggravator have to considered and back” to an alternate to bolster weighed prior simple.1 defendant’s in the sentence is not as While we are enhancing presumptive Tay prepared sentence.” vacate the [a] to sentences based State, (Ind.1998) 117, upon misapplication lor v. 121 the trial court’s of this (Ind. Tunstill, 539, circumstance, (citing aggravating weight N.E.2d 545 568 of au 1991)). may thority clearly sentencing An enhanced sentence im that if a be mandates posed only aggravating judge rely upon аggravator, when the circum chooses to penal stance is the defendant’s criminal histo “need for rehabilitative treatment in a Isaacs, 765; facility” ry. presumptive 673 N.E.2d at Pruitt v. in order to enhance the vator, misapplication 1. See the discussion of the of the infra. "depreciate aggra- the seriousness of the crime" 188

sentence, by that the use more than recite the mended We find he must do State. during sentencing improper. statutory language aggravаting this factor was of why hearing. specifically He must state this contention, final we As for defendant’s defendant, given facts and circumstances reviewing already noted when case, in treatment in such a this needs such statute, by this will sentence authorized court longer presumptive facility for than sen “except where such sentence is not revise aggravating “For tence would allow. this manifestly light of the of- unreasonable justify in part circumstance to an enhanced the character of the offender.” fense and sentence, it be to mean must understood 17(B)(1). Appellate Rule Ind. need of correctional and defendant can be pro rehabilitative treatment that best provides that “[a] I.C. 35-50-2-5 by period penal in a vided of incarceration person felony B shall who commits a Class facility in excess imprisoned of fixed term ten be State, Mayberry v. N.E.2d term.” 670 (10) years years, more than with not ten Beason, (Ind.1996). 1271 N.E.2d Accord 690 ” aggravating circumstances.... added for Battles, 1236; 281-82; at at N.E.2d Hol 688 B This defendant was convicted of two Class lins, at v. Mitchem felonies, robbery and each confinement. For Smith, (Ind.1997); N.E.2d 675 felonies, twenty B of of these a sentence 697-98; v. N.E.2d at Newhart years upon finding is authorized statute (Ind.1996). sentencing aggravating Sentencing circumstances. court failed to articulate the court’s consider rest decisions within sound discretion specific or ation of the facts crimes Trei court. v. partiсular characteristics of the defendant (Ind.Ct.App.1995). It is within the they the need relate to for rehabilitative to discretion the trial court determine throughout to treatment endure two consecu whether sentences are to served concur statutorily pre tive of twice the sentences rently consecutively. Anderson sumptive length. We conclude therefore that 1180, 1186 improper was aggravating this circumstance ly applied, and remand with instructions Although have determined we specific enter a and individualized statement two of the three factors sentences, impose support inappropriately applied the trial were sentences, them to concurrent or to reduce court, appropriately the court did consider presumptive length. the history. A the defendant’s criminal sentenc contention, next Defendant’s precluded relying on ing court is not from by citing trial court its discretion the abused aggravating the same circumstance both to aggravating as an circumstance that “the to it served enhance sentence and order imposition of a reduced sentence would de consecutively. Blanche v. N.E.2d crime,” the preciate the seriousness of is 709, 716 the trial court Because may that the correct. consider factor, properly applied aggravating and imposition might of a reduced sentence re within the the sеntences are limits of the crime. I.C. duce the seriousness Robbery for the B felonies of and Confine 35-38-1-7.1(b)(4). However, appellate § the ment, no trial there was abuse the court’s consistently held that courts discretion, find sen and we decline to may when the apply court this factor manifestly tences unreasonable. imposing a sentence. court considers shorter conclusion, affirm con- In we defendant’s Mitchem, 679; at Bacher v. Robbery, Felony, a Class B and (Ind.1997); victions 686 N.E.2d Jones Confinement, Felony. a Class B We remand (Ind.1996); v. Widener, only on issue of the 1270; to the trial court Mayberry, at inappropriate application at v. Ector circumstance, in 1014, 1016 “need for rehabilitation (Ind.1994), reh’g denied. The rec facility,” to penal with instructions enter a considered ord not reflect that the court does sup- statement to specific sentence recom- and individualized reducing presumptive sentences, prior port imposе concur- state that the fact of the criminal activi- sentences, ty may from the rent or to reduce them to be inferred mere arrest Rather, Tunstill, presumptive length. citing itself. Beason, strongly in implied court to the con- SHARPNACK, C.J., concurs. trary. Taylor The same effect is v. State (1998) Ind., 695 N.E.2d 117 which also cites SULLIVAN, J., part in concurs and dis- Tunstill, Beason. separate opinion. part sents in with then, incompatible In I find it essence with SULLIVAN, Judge, concurring part in Tunstill, holding to conclude that a dissenting part. in arrest, prior mere without some evidence was, fact, involved, in that criminal (3). (1), (2), fully I concur as to Parts adversely upon reflects a defendant’s charac- (4), concerning im- As to Part the sentences permits likely ter and an inference that he is posed, I dissent. to commit crimes in the future. agree prior I that the A misdemean- Class noted, prior As earlier misdemeanor does, itself, proof or conviction in constitute prior activity. conviction constitutes not, however, prior activity. I do However, not, in conviction does agree implication that the mere fact with view, my justify enhancement of both sen- of an arrest that the defendant demonstrates felony tences for the B two Class convictions likely to commit crimes in the future. years from the ten to the maxi- Moreover, majority the cases cited do years mum twenty and to make those sen- support proposition. not such a tences conseсutive. (1991) Ind., in Tunstill v. As noted State majority’s I in concur determination quoted by 544 and as improperly the trial court used “the majority here: ag- need for rehabilitative treatment” as an arrest, more, “A record of without does factor, gravating disagree I but with the fact that a establish the historical defen- permit remand order to the trial court to may dant committed a criminal offense and belatedly enunciate consideration which properly not be considered as evidence of may may present been not have at the activity.” prior criminal sentencing. time of the by Ealy principle That is not diminished agree misapplied I also that the trial court (1997) Ind., State or Beason might principle particular that a (1998) Ind., In v. State 690 N.E.2d 277. “depreciate the seriousness of the crime.” Ealy, defendant had been convicted of however, concurring, I would note that crimes, three two of which involved has, Supreme past in severаl cases our Court firearms. The first of these convictions was applied principle to situations which carrying handgun of a a license. without specifically the trial court has stated that to Secondly, the defendant was convicted of dis- impose sentence rather than orderly attempting grab conduct for a' imposed specific enhanced sentence police officer’s from its holster. These “depreciate the seriousness of would be convictions, a misdemeanor conviction (1994) Ind., Ector v. crime.” State cocaine, along finding possession with a (1986) Ind., Evans v. State tendency that the defendant had a to resort course, N.E.2d 919. Of the trial court here aggravators in to violence were used as ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​‌​‌‌‌​​​‌‌​​‌‌​​‌​​‌​‌​​‌​‌​‌‍sen- did not so state. case, tencing. Ealy, Thus in unlike in this prior been the fact of conduct had The end result of our consideration established. justification sentencing single errors leaves Beason, fоrty year correctly for the cumulative sentence. That the court stated need is a conviction for Class misde- “[a]negations of conviction,” light, meanor. In this I would reverse2 and not be reduced to but did not Ind., Recently, Supreme Court held that two v. State our 2. in Buchanan pre- impose the instructions to remand with

sumptive for each conviction and to be served concurrent-

order the sentences

ly. Mart, Tammy MART and

Stewart J.

Appellants-Plaintiffs, HESS, Appellee-Defendant.

Patricia

No. 49A05-9804-CV-186. Appeals of Indiana.

Court of

Dec. 1998. to do what aggravators imposition of factor should not be used did not warrant both aggravators do See two of- could not in Buchanan. the maximum enhanced sentences for Ind., they v. State be served consecu- Walton fenses and an order that clear, therefore, (1994) Ind.App., 741. tively. v. State It seems Staton

Case Details

Case Name: Adkins v. State

Court Name: Indiana Court of Appeals

Date Published: Dec 22, 1998

Citation: 703 N.E.2d 182

Docket Number: 49A05-9803-CR-135

Court Abbreviation: Ind. Ct. App.