*1 a motorist's regarding 10No. Instruction FREY, Appellant-Defendant, T. en- Justin care when reasonable
duty to exercise He intersection. uncontrolled tering an jury was not so that because opines easily may
instructed, "jurors very Indiana, Appellee-Plaintiff. STATE O'Quinn entered have assumed No. 80A02-0504-CR-334. he had the impunity since intersection with 12.) (Br. Appellant at right-of-way." Appeals of Indiana. Court in law described argues the Hamilton applicable instruction is not tendered Lee's 31, 2006. Jan. the intersection was to this case because fact, and the substance not, uncontrolled was covered tendered instruction
of the instructions. other of Tendered the substance by other was covered No. 10 Instruction In- by the trial court. given instructions negligence, No. 18 12 defined struction No. care, 16 noted No. defined reasonable proper maintain a a driver to duty of lookout, passenger's 17 described No. care, 19 discussed
duty of and No. an approaching for drivers requirements malfunctioning traffic intersection with these instructions together, Taken light. continuing duty to has a a driver indicate care at all ordinary act with reasonable necessarily en- would times. Such when a to be exercised compass the care enters an right-of-way who has the driver not abuse trial court did intersection. The Tendered declining give its discretion 10. Instruction No. not abuse its discre- The trial court did 6 and 24 or excluding Exhibits tion Instruc- declining Defendant's Tendered Accordingly, we af- 10. tions Nos. 9 and firm.
Affirmed. VAIDIK, J.,
SHARPNACK, J., and concur.
Mark Regnier, Elwood, R. for Appellant. Carter, Steve Attorney General of Indiana, Carlton, Grant H. Deputy Attor- General, ney Indianapolis, for Appellee. OPINION
FRIEDLANDER, Judge.
Justin T. pled guilty battery B class felony. Frey challenges the sentence imposed by the trial court. Spe- cifically, Frey contends the trial court guilty as whereby agreed plead fac- any mitigating failing to find erred exchange for the State charged, tors. the maximum sentence he affirm. years, which eight could receive would be are judgment favorable to The facts than the is two less *3 in a 2004, Frey sleeping was July that in The court felony B conviction. class McGuire, Lisa girlfriend, with his bedroom accepted factual established a basis sleeping All were children. her three 2005, 28, March the court plea. On two-year-old except McGuire's on the bed hearing. At the sentencing conducted a D.M., on the sleeping was who daughter, stated, has "the State hearing, the D.M. point, the bed. At some next to floor pre- of the already conceded two mother. with her get on the bed asked to through negotiations sumptive bed, get on told her she could Frey your attorney, and so the Court Frey told the to fuss. began D.M. today to find either not need D.M. would not re- quiet, but child to be factors factors because those or on Frey put his foot Eventually, lent. by the attor- already have been considered (D.M. lying apparently back was D.M.'s at 26-27. The court neys." Transcript time) and floor at down on the face clearly to discuss what were proceeded one-fourth equal to about pressure exerted considerations, desig- sentencing without three and body weight for between of his nating them as fuss, D.M. continued ten seconds. as follows: factors. That discussion was pres- even more whereupon Frey exerted back, equivalent this time on her sure and see a picture I look at the [D.M.] period for a body weight, of his half about years old on the girl, little two beautiful D.M. twenty-five seconds. fifteen to wonder, and I day happened, that this down, Frey went back to quieted that I know that despite pressure all the taken to day, D.M. was sleep. The next when a child misbehaves parent has Children, where she Riley Hospital for be, frustrating as it can and cries and as Phillip Dr. Merk. Dr. Merk examined anyone could mistreat I wonder how follows: her condition as described [D.M.], any girl little girl like like little year presented old who is a [D.M.] But like. regardless of what she looks pete- with a Riley Hospital for Children you girl, to do what little beautiful and face. her forehead chial rash over just inconceiva- day that did to her on include some bruis- injuries Her other just a bad to me. It is ble nose, and sub- on her ing, and abrasion day. that And your part on decision on bilaterally. conjunctival hemorrhages have you made that will it is an act that consistent with non- injuries are These only in paid for not to be dealt with trauma, suffoca- specifically accidental your own con- through this court but Furthermore, strangulation. tion and/or you way that through the science and inju- these not have caused could [D.M.] life. your to live the rest choose ries herself. here, prose- what allegation [the There's Binder, Exhibit 1. State's Exhibits oth- said, there were perhaps that cutor] acts oc- and admitted the questioned possi- one other incidents or least er out above. curred as set involved you were ble incident decision improper an you made 2004, where charged July On very I don't know concerning a child. felony. December a class B On battery as relying on that and I'm not much about 20, 2004, plea agreement into a he entered 2%4 my today. only decision I'm mitigators, balance, they concludes
relying on what know and that is what presumptive you've to me and then, admitted what the case 35-38-1-3, pursuant to I.C. says. report hope this case So trial court must a statement of its provide you yourself can find it within to work for imposing reasons sen- you on whatever need to work on here, however, tence. We are.confronted your freedom, you terms of when do find with a squarely situation that does not fit you will be able to make better any within foregoing of the categories. yourself decisions for for those around
you, family, for the and for those whose In this the trial court imposed you. care is entrusted to (albeit a reduced sentence one that was the *4 today, But for the Court does find it impose could under the plea that upon eight sentence agreement), but did not identify aggrava years is and the Court does ting mitigating and factors. On the other a in pris- hand, it did discuss certain considerations on. might that be viewed as the functional challenges the fa n ure equivalent of mitigating and Id. at 27-28. apply rules What this cireum-. mitigating to find cireumstances. factors. stance? specifically, More was trial Subject legal parame to certain explain its decision to required ters, sentencing gener determinations are impose the reduced sentence? con ally committedto the trial court's discre clude that it was. The above-cited author State, (Ind. tion. v. Estes ity demonstrates that the to explain 2005). That is true respect also with sentences, including the identification of finding A factors. Id. mitigating factors, mitigating trig trial court is weigh or obligated gered every instance when the mitigating credit factors in the manner a imposes trial court the presumptive sen suggests. Nevertheless, defendant if it tence without explaining its decision. The fails find a mitigator clearly supported trial court here did not impose record, by the a reasonable belief arises Thus, sumptive. required explain mitigator improperly over decision, its decision. It explain did looked. Id. but in process did not specifically iden When a trial court aggrava finds tify aggravating mitigating cireum- circumstances, ting mitigating or it must stances. This was error. make a statement of its reasons select ing Having Gasper determined the trial court v. erred State, 833 in failing explain N.E.2d 1036 (Ind.Ct.App.2005), imposition of a denied; trams. 1.0. 35-38-1-8. The sentence that was trial other than the presump- tive, court. reasons, need not set forth process its how and in the identify aggra- ever, when imposing vating mitigating circumstances, we tence. Gasper v. 833 N.E.2d can 1036. either remand to the trial court for Therefore, resentencing or undertake the task of de- if the trial court does not find any aggravators mitigators. termining the appropriate sentence our- the presumptive then the trial selves. Because the appellate appendix court does not need to set forth its reasons and the transcript of the sentencing hear- for imposing the presumptive ing sentence. contain materials sufficient for the Yet, Id. if task, the trial court aggravators finds optwe for the latter. investigation, Frey ad- During that abuse supports the record
Frey contends (1) injured in 2004 factors: he had J.M. earlier mitigating mitted finding of three a criminal of "only prior baby into his mouth by "ramming that his bottle the fact marijuana con Considering a misdemeanor Transcript hard." at 18. fense too six approximately occurred above, reject Frey's viction we conten- all of the (6) in this history of eriminal behavior offense date prior to the tion that his (2) confessed, case"; pled he circum- should be considered instant for his responsibility guilty, accepted stance. (8) actions, expressed remorse. police voluntarily Frey went Frey cites Carlson State reported, after the incident had been authority for the (Ind.Ct.App.1999) as what he had done. This is a he admitted remoteness of this proposition "[the circumstance. Cotto v. valid be considered conviction should prior NE2d 520 Frey's favor." construed the court and attributable pled guilty. weight also do not read at 5. We
Appellant's Brief
high
to these actions is
the medium
In
that assertion.
supporting
Carlson
range.
the remoteness
we discussed
finding
supporting
a factor
an offense as
Finally, Frey expressed remorse. This
*5
aggravating
history was an
that criminal
mitigating circumstance. Estes
is a valid
re
concluded that the
We
cireumstance.
State,
N.E.2d 27. In this
the
v.
827
may be
prior
a
conviction
moteness of
sincerity
Frey's expression of remorse
of
prior
a
of
deciding
in
whether
considered
by
pro-
the observation of the
tempered
is
aggravator.
a valid
fense could be
Frey's presentence report
bation officer
however,
noted,
a defendant
"[wlhere
that,
the defen-
"during the interview with
crimi
of a
to diminish the relevance
seeks
dant,
officer feels that
the defendant
this
its remoteness
by emphasizing
nal record
the seriousness
really
does not
understand
character,
factor
neither
or nonviolent
at
Appellant's Appendix
of his actions."
prior
using
from
such
the trial court
cludes
to low
mitigator
is entitled
16. This
cireumstances."
aggravating
as
convictions
weight.
State,
(quot
at 473
v.
716 N.E.2d
Carison
supports
that the record
We find
State,
788, 787
498 N.E.2d
ing Bowling v.
cireum-
finding
of two
the
(Ind.1986)).
Thus,
teaches
Carison
(1)
the vie-
youth of
the extreme
stances:
considered,
in time must be
remoteness
Frey occupied a
fact that
tim and the
a
may
support
not
may
it
but
her,
v.
Devries
of trust with
see
position
consisting of
history
a criminal
finding of
State,
(Ind.Ct.App.2005),
511°
883 NE.2d
spe
More
aggravator.
as an
that offense
(2)
denied,
particularized
the
trans.
proposi
support
it
the
cifically,
offense.
See
the
cireumstances
must be
six-year-old
conviction
tion that
(Ind.
State,
172
N.E.2d
Rob
Henderson
factor. See
considered
former,
2002).
D.M.
respect
With
(Ind.2002).
State, T75 N.E.2d 316
inson v.
the incident oc
years old when
was two
he had
Frey
also that
admitted
We note
curred,
his role with
Frey admitted
allega
subject of another abuse
been the
had "been
one where he
the victim as
youngest respect
to the
tion with
to raise
trying
acting as her father
children,
At
six-month-old J.M.
McGuire's
filed, Frey
ag-
had
find this
appeal was
Transcript
at 6. We
the time this
her[.]"
weight.
high
to be of medium
gravator
testing to determine
genetic
submitted
latter,
crushed
Frey twice
Concerning the
father.
biological
whether he
J.M.'s
against
Frey
the small victim
the floor
his
did not agree
eight-year
that an
Rather,
that it
injuries
foot with such force
caused
sentence was to be
agreed that
strangula
consistent with suffocation and
the sentence would be no
eight years.
aggravator
plea agree
tion.
find this
in the
'We
be
©
open
ment left the door
high range.
|
medium to
to seek
less than
eight years agreed
We find that
cireum-
State. He is therefore not precluded from
outweigh
stances
cireum-
making
argument
his
that the trial court
Accordingly,
stances.
we reach the same
imposing
erred in
the maximum sentence
conclusion
the trial court with respect
permitted under
plea agreement.
See
light
is
(Ind.
Wilkie v.
Frey's character
the nature Ct.App.2004), trans. denied.
offense he
Neale v.
committed.
See
It is
fact
that the trial court
incarceration,
which,
liberty
tenced
a sentence of no fewer
although
than
years,
under
six
the minimum permissible
allowable
plea agreement,
we note
B felony,
is neverthe
for Class
but no more than
less less than the
eight years pursuant
sentence for
plea agree-
to the
'
B felony.
a class
ment. Given that
than eight years
less
permissible,
agreement
I am in
Judgmentaffirmed.
obligated
case the trial court was
state its reasons for imposing
per-
the full
SULLIVAN, J., concurring with
so,
eight years.
missible
In doing
separate opinion.
stands to reason that the court would have
VAIDIK, J., concurring in part,
had to consider
in mitigation
factors
and to
dissenting
part
separate opinion.
factors,
why
state
*6
any
if
were found
those
SULLIVAN,
Judge, concurring.
exist,
to
did not warrant
reduction of the
eight-year
agreed
sentence
to
In
mitigated
this case the
sentence was
by the State.
not imposed because the trial court con
cluded that mitigating cireumstances out
I
that it
concede
seems somewhat incon-
weighed any aggravating
gruous
circumstances
to hold that if a trial
imposes
court
a presumptive
found. Had it been the
required
sentence
is not
the trial
court would
required
have been
to articu
to state
doing
reasons for
so and more
late the reasons for giving less than the
particularly that such
required
court is not
presumptive
35-38-1-8;
§
sentence.
I.C.
to
why mitigators
articulate
proffered by
(Ind.Ct.
the defendant are not accepted, or if ac-
Allen v.
App.2000); Battles v.
cepted
do
outweigh aggravators,
not
while
requiring a court
Rather,
imposes
mitigated
the
sentence in this case
imposed pursu
the minimum
permitted
sentence
under
plea agreement
ant to a
under which the
statute to
why
articulate
the minimum sen-
maximum sentence permissible would
Nevertheless,
be
tence is not being imposed.
eight years. The
eight years
sentence of
I perceive such state of affairs to have
range
was within the
by
the
been the law of Indiana at the time of fact, however,
State. This
does not
sentencing. For this
I agree
reason
clude
arguing
from
opinion
the sentence
the lead
by Judge Friedlander re-
should have
elght years
been less than the
quiring
the
identify
aggravating
mitigating
and
"in every
circumstances
in-
here,
trial court
when the
"undertake
the
of
except
we should
task
stance
(Op.
determining
...."
the
sentence our-
sentence
presumptive
the
remanding
the
opposed
selves" as
case
original)).
(emphasis
Therefore,
for the trial court to do so. Id.
However,
the lead
company
I
part
part
part.
I concur in
and dissent
that if the trial
suggestion
opinion
its
its decision to
explains
gratuitously
court
identifying aggravating
of
and
The task
it must
the
impose
is a matter best
mitigating cireumstances
articulate
further and
go
also
juries
and
and
entrusted to our trial courts
Op. at 285.
circumstances.
and
35-88-1-7.1;
not to us. See Ind.Code
message that a
carries the
opinion
296, 124
Blakely Washington,
542 U.S.
of rea-
may
a statement
avoid
trial
(2004).
2531,
senting part. Although opinion with the lead a trial court by Judge Friedlander identify aggravating and must every "in instance circumstances presump- when the trial court its deci- explaining without tive sentence sion," the lead disagree op. the trial failed
opinion because mitigators identify aggravators