Lead Opinion
Kеvin L. Carter was convicted of the murder of a seven-year-old girl and sentenced to sixty years imprisonment. Carter was four
I. Carter’s Contentions
Carter asserts that the trial court failed to find mitigating circumstances supported by the record, improperly found aggravating circumstances that “were not supported by subsidiary facts and dealt with unsubstantiated allegations,” and made only a “summary sentencing statement, which is difficult to review and understand.” The contention is essentially that the sentencing statement is “deficient both for what it says and what it does not say.” See Scheckel v. State,
II. The Sentencing Statement
At the second sentencing hearing, the trial court took judicial notice of the evidence and arguments presented at Carter’s two trials and his first sentencing hearing. Accordingly, we will consider the evidence offered and arguments made at both sentencing hearings. Although not a model of clarity, the record indicates that the trial court found two mitigating circumstances and two or three aggravating circumstances. Carter’s age (fourteen) and lack of a criminal record were found to be mitigating circumstances at both sentencing hearings. At the second sentencing hearing the trial court described the aggravating circumstances as follows:
it is true that as part of the entire series of events that gave rise to this horrible tragedy, ... [Carter] was, in fact, charged with kidnaping, confinement and child molestation. He was charged with child molestation as an A Felony. I don’t have those charges. They never came to me, but the fact that these others ... And the evidence supports all of that, but he was not charged with that. But I think it’s fair to find all that as aggravating circumstances. Further, the young man, although he had no significant juvenile record, there was a prior incident on August the 6th ... wherein he was, uh ... There wаs allegations that he had molested his sister. So it appears that he has a history of sexual deviancy. Um, further, um, to say that it’s a murder is, of course, correct and the jury found that that’s what happened. Anybody who saw the evidence would have to come away with the terrible realization that this is an awful, horrible, brutal disfiguring murder. I mean his footprints were on the child’s body. She had multiple stab wounds.... The whole scenario amounts to aggravations. It just was virtually indescribable what this young man did to that child.
Because the trial court relied on aggravating or mitigating circumstances to deviate from the рresumptive sentence, it was required to
A. The Mitigating Circumstances
This is not a case in which the trial court “made no reference to mitigating circumstances, neither to specify that the court found none to exist nor to state that any existing mitigators were outweighed by ag-gravators.” See Tunstill v. State,
At the first sentencing hearing, the trial court specifically asked defense counsel in his final summation to “please point out to me ... what you believe to be mitigating circumstances as would be reflected by the record.” Trial counsel discussed several potentially mitigating circumstances at that hearing and mentioned some of these again at the second sentencing hearing. Of those discussed, the trial court found only Carter’s young age and that he had “no significant criminal record” to be mitigating. In this appeal, Carter asserts that the trial court should have found several other factors to be mitigating.
First, Carter suggests that his below average I.Q. of eighty-nine and an alleged behavior disorder are mitigating circumstances. Although both of these factors were mentioned in a psychiatric report attached to the presentence report, neither was argued as a mitigating circumstance during summation. Trial counsel did not view either factor as significant enough to warrant any mention at either sentencing hearing. Moreover, a substantial percentage of the population has an I.Q. in the range of Carter’s but continues to function in compliance with our laws, and the evidence of Carter’s alleged behavior disorder is not clearly supported by the record.
Carter also contends that he “was known as a good child. He had never been in trouble before, and he was respectful to adults.” He cites to the testimony of his aunt and father, both of whom indicated that Carter had never mistreated other children and had always been respectful to adults. His aunt, however, testified that she had not had regular contact with Carter and his father testified that he had been incarcerated for dealing cocaine since Carter was eight years old. Moreover, as discussed in part B, infra, this testimony is contradicted by an allegation that Carter attempted to molest his three-year-old sister three weeks before the murder at issue in this case. In light of all of these considerations, we cannot say that this оffered mitigating circumstance was “clearly supported by the record,” see Wilkins,
What remains of Carter’s argument is that (1) his academic achievement while in custody awaiting trial and (2) the verbal and physical abuse he suffered as a child should have been considered as mitigating circumstances. As a preliminary matter, we note that neither of these is a statutory mitigating circumstance. See Ind.Code § 35-38-1-7.1(c) (1998). Nevertheless, as to the first of these, Carter offered the testimony of Michael Welch, a school teacher at the Madison County Detention Center. Welch testified at the first sentencing hearing that Carter “is a B ... B + student. He’s doing quite well academically.” Carter cites to no authority that holds that academic achievement while incarcerated and awaiting trial is a significant mitigating circumstance that must be identified or credited by the trial court at sentencing. Although Carter’s academic achievement in the face of a pending murder charge is laudable, the trial court did not abuse its discretion by failing to find it as a mitigating circumstance.
As to the other proffered mitigator, Carter merely mentions his “аbusive childhood” in passing without any further explanation and only a single record citation to a psychological evaluation that was attached to the presentence report. The presentence report noted that Carter “described his stepfather as both verbally and physically abusive.” It also quoted Carter as saying that his mother “threw things, swung baseball bats, everything. You name it, she probably did it.” A psychiatric evaluation prepared before trial and attached to the presentence report also notes that Carter gave “some history of what could be emotional and physical abuse from [his] mother. He talk[ed] about his mother paddling him, hitting him with a coat hanger, etc.” The psychological evaluation mentioned above noted that Carter “complains that his mother has often been physically aggressive to him.... He says that when his mother was angry that she would often hit him with her open hand or her fist, or with coat hangers, shoes, belts and other household objects.” The record thus contains uncontradicted assertions of an abusive childhood based solely on Carter’s own statements. Nevertheless, the trial cоurt was not required to find Carter’s abusive childhood as a mitigating circumstance. See Page v. State,
B. The Aggravating Circumstances
Carter also contends that the trial court abused its discretion in finding aggravating
As to the first factor, we note that kidnaping, confinement, and child molesting charges were filed along with the murder charge against Carter in juvenile court but jurisdiction was waived to adult court for the murder charge only. See Ind.Code § 31-30-3-4 (1998). Without citation to authority, Carter argues that the trial court’s consideration of evidence of these other crimes punishes him “for crimes he had not been convicted of and denies him his right to due process for a fair hearing on those allegations.” However, he does not сontest that the evidence presented at trial, including his confession, supports these charges. Regardless of Carter’s characterization of evidence of these charges as a separate aggravating circumstance, the trial court did not abuse its discretion by considering this evidence as part of the “nature and circumstances of the crime” aggravator.
Carter also contends that the trial court should not have considered an allegation that he attempted to molest his sister three weeks before the murder in this case. According tо the presentence report, “[i]t seems that on August 6, 1994, Kevin was accosted by his mother for allegedly attempting to molest his three-year-old sister.” However, the psychiatric report attached to the presentence report states that Carter “denies any history of being sexual[ly] abused and denies ever having sexually abused anyone else, including his siblings.” At the first sentencing hearing, both Carter and his counsel indicated that they had reviewed the report and were “aware of no errors in it.” The defendant generally has the onus of pointing out any factual inaccuracies in the presentence report. Brown,
C. The Weighing of Aggravators and Mitigators
As a final requirement of the sentencing statement, the trial court must evaluate and balance the mitigating circumstances to determine whether they оffset the aggravating circumstances. Hammons,
III. Manifestly Unreasonable
Carter also suggests that his sentence is manifestly unreasonable.
At the time of Carter’s crime, the presumptive sentence for murder was forty years. See Carter v. State,
We have no way of knowing which factors were assigned what level of significance. Sentencing decisions often defy quantification. However, cases with roughly similar aggravating and mitigating circumstances provide a somewhat objective benchmark to aid our review of a sentence alleged to be manifestly unreasonable. See Fointno v. State,
More recent cases have also presented us with similar facts of a youthful defendant who lacked a prior criminal record. As in Poling, we found the maximum sentence not to be manifestly unreasonable in Loveless v. State,
Under somewhat different circumstances, we have reduced sentences involving youthful offenders. In Walton v. State,
[sjince an additional' aggravator is not present, the 120 year sentence may have been appropriate in light of the character of the offense, but it was manifestly unreasonable for this offender, who was sixteen years old, mentally ill, and lacking a history of criminal or delinquent acts. There are, however, non-statutory aggravating circumstances, for instance, multiple killings, on the face of the record which clearly support separately served consecutive sentences for each homicide.
Id. at 1137.
Later that same year-, we considered the propriety of imposing a seventy year sentence on a seventeen-year-old defendant for felony murder (sixty years) and conspiracy to commit robbery (ten years). See Widener v. State,
Although the nature of Carter’s offense is not as severe as that in Loveless, the other aggravating and mitigating circumstances are virtually identical. Poling also presents the same mitigating circumstances and similar aggravating ones. On the other hand, Carter’s case is similar to Walton and Widener, with the exception that Carter was not mentally ill (as in Walton) nor did he accept responsibility by pleading guilty or have co-defendants who initiated and primarily formulated the crime (as in Widener).
Appellate Rule 17(B) requires our consideration of both the “character of the offender” and the “nature of the offense.” As to the character of the offender, Carter is fundamentally different from all of the defendants in the previously mentioned cases in one very significant respect: he was fourteen at the time of the offense, not sixteen or seventeen. Our decisional law has recognized that a defendant’s youth, although not identified as a statutory mitigating circumstances, is a significant mitigating circumstance in some circumstances. See, e.g., Walton,
The trial court also found another mitigating circumstance and an aggravating circumstance that go to the character of the offender. Carter’s lack of a criminal history was found to be mitigating, but his attempted molestatiоn of his sister was found to be aggravating. As to the nature of the offense, as the trial court found and as is true of most murder cases, the facts of this case are severe and troubling. Moreover, this was the murder of a child under the age of twelve, which is a statutory aggravating circumstance. See id. § 35-38-l-7.1(b)(5).
The crime(s) of a fourteen-year-old defendant may, under other circumstances, warrant the imposition of the maximum sentence. In light of the nature of this offense and character of this offender, however, Carter’s very youthful age is sufficiently mitigating that the maximum sentence is manifestly unreasonable. However, we are also impressed by the age of the victim and the circumstances of the crime elaborated by the trial court. The trial court was within its discretion in finding that these two mitigating circumstances were outweighed by the significant aggravating circumstances. Reduction to something between the presumptive and the maximum imposed by the trial court is necessarily somewhat arbitrary. Nevertheless, our constitutional power to review and revise sentences allows this Court to reduce a sentence to any term of years within the statutorily authorized range, and requires us to consider claims of excessive sentences. In this case, a balancing of these significant and troubling factors leads the majority of this Court to conclude by consensus that Carter’s sentence should be reduced to fifty years imprisonment.
Conclusion
This ease is remanded to the trial court with instruction to reduce the sentence to fifty years imprisonment.
Notes
. The trial court also found several aggravating circumstances at the first sentencing hearing but did not repeat them at the second hearing: (1) the risk that Carter will commit another crime; (2) the victim was less than twelve years of age; (3) Carter was in need of correctional or rehabilitative treatment that can best be provided by a penal facility; and (4) imposition of a reduced sentence or suspension would depreciate the seriousness of the crime. The first two of these are proper aggravating circumstances in this case, and the second is clearly supported by the record. However, the trial court did not mention any of these four factors in its second sentencing statement.
. Defense counsel suggested at the first sentencing that the following constituted mitigating circumstances: (1) Carter faced the ordeal, especially the second trial, without family support; (2) Carter was never disruptive in court; (3) Carter's youthful age; (4) no prior criminal history; (5) Carter behaved well in school and was doing well in school ("was not truant and he even made decent grades”); and (6) he suffered verbal and physical abuse as a child. At the second sentencing hearing, defense counsel noted Carter's youthful age, "somewhat unstable childhood,” including being the "victim of some physical, mental, and emotional abuse,” and no prior criminal history.
Carter does not raise thе first two of these on appeal. In any event, they do not rise to the level of significance required to command the trial court’s consideration. Defendants in a criminal trial should be expected to observe courtroom decorum and never be disruptive. Moreover, many criminal defendants go to trial for serious charges without family support. A trial court need not find this unfortunate circumstance 'to be mitigating.
. Carter characterizes his alleged mental health problems in stark terms. "His MMPI showed that he had a serious impulse control problem. He suffers from a behаvior disorder, in particular, 'appositional defiant disorder or conduct disorder.’ Dr. David Dean was of the opinion that the Defendant committed an act of ‘affective aggression’ when he committed the offense. In short, the Defendant did not plan the act but acted out of or in conformity with his impulsive characteristics.” This characterization leaves out other significant parts of the report. Dr. Dean also concluded that the MMPI-A "did not reveal the presence of a serious mental disorder or impaired contact with reality.” Moreover, the report observed that Carter "may have a behavior disorder that could be diagnosed as either Oppositional Defiant Disorder, or Conduct Disor
. In addition, these charges were apparently still unresolved in juvenile court at the time of Carter's sentencing. Pending charges arе a proper sentencing consideration. Flinn v. State,
. Carter’s only mention of the manifest unreasonableness of his sentence in this appeal is a one sentence recitation of the now defunct Appellate Rule 17(B)(2) standard. Normally such a poorly advanced claim will be found waived for the failure to present a cogent argument. See Ind. Appellate Rule 8.3(A)(7). However, in his first brief to this Court, Carter did raise the issue and developed a cogent argument, and the trial court considered the record of the first sentencing hearing in imposing the sentence we now review.
. On aрpeal, we rejected the defendant's argument that her “overwhelmingly difficult childhood” should have been accorded mitigating weight. The trial court made no reference to this factor, and we found no error because "[t]here was no indication of how her admittedly painful childhood was relevant to her level of culpability” for the murder of which she was convicted. Id. at 976-77.
Concurrence Opinion
concurring and dissenting.
I concur with the majority in Parts I and II, but dissent from the majority’s determination in Part III that Carter’s sixty year sentence for murder is manifestly unreasonable.
Under our Rules of Appellate Procedure, this Court “will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 17(B). We have emphasized that this review is very deferential to the trial court: “ ‘[T]he issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so.’ ” Bunch v. State,
Because I do not find the sentence ordered by the trial judge to be clearly, plainly, and obviously unreasonable, I cannot agree to revise it and would affirm the sentence imposed by the trial court.