We hold that the pregnancy of a victim, like any other circumstance that may extend the harm inflicted by a crime, may be an aggravating circumstance in sentencing whether or not the perpetrator is aware that the victim is pregnant.
Factual and Procedural Background
On August 2, 1997, Mario McCann visited A.L. and Anthony Dozier at their home. After McCann left, A.L. went upstairs, fell asleep, and awoke to find McCann in her bedroom. McCann told A.L. he had a gun and would use it if she did not remain silent. He attempted to pull off her bed-covers, touched her breasts, and then told her, “shut up, it wouldn’t take very long, and then he’d leave [A.L.] alone.” At that point, Dozier entered the bedroom. A fight ensued and McCann shot Dozier in the chest and fled through the bedroom window. Both A.L. and Dozier identified McCann frоm a thirty-two person photo array. McCann was arrested and charged with attempted murder, burglary, and attempted rape.
McCann was found guilty on all charges and sentenced to fifty years for attempted murder and a consecutive sentence of fifty years for burglary. A concurrent sentence of fifty years was imposed for attempted rape. On direct appeal, he contended that: (1) the photo array and in-court identification were unduly suggestive; (2) the State committed prosecutorial misconduct; (3) the trial court gave an erroneous instruction on attempted rape; and (4) the trial court erred in sentencing him to maximum, consecutive sentences for his crimes. The Court of Appeals affirmed his convictions, but remanded to the trial court for resentencing.
McCann v. State,
*1119
McCann challenges his sentence as “excessive and manifestly unreasonable.” He raises a number of statutory issues and also contends that the sentence was manifestly unreasonable under Indiana Appellate Rule 7(B). As this Court has previously noted, “These are two separate inquiries reviewed under different standards.”
Noojin v. State,
I. Sentencing Error
As procedural error, McCann contends that: (1) the trial court considered improper aggravating circumstances; (2) the trial court failed to consider mitigating circumstances clearly supported by the record; and (3) the trial court did not balancе the aggravating and mitigating circumstances. The trial court found four aggravating circumstances: (1) McCann’s prior criminal history, (2) prior attempts to rehabilitate were unsuccessful, (3) the injuries to Dozier resulted in permanent impairment, and (4) the nature and circumstances of the crime including that A.L. was pregnant at the time of the attack and that the crimes involved multiple victims. The trial court found no mitigating circumstances and then imposed maximum sentences on all three counts, twо of which it ordered to be served consecutively.
On direct appeal, the Court of Appeals determined that the “rehabilitation” and “nature and circumstances” aggravating factors were improperly considered, and thаt McCann’s claimed mitigating circumstances — his abusive childhood and the hardship that would result to his child from his incarceration — were not required to be considered as mitigating circumstances. The case was remanded to the trial court to balance the two remaining aggravating circumstances and resentence McCann.
McCann,
In general, sentencing determinations are within the trial court’s discretion and are governed by Indiana Code section 35-38-1-7.1.
Harris v. State,
First, McCann challenges the trial court’s finding of aggravating circumstances. We agree with the Court of Appeals that both McCann’s criminal history and Dozier’s permanent impairment
1
were proper aggravators. McCann’s criminal history is a statutory aggravating circumstance and was properly considered. Ind. Code § 35 — 38—1—7.1(b)(2) (1998). The serious nature оf a victim’s injuries is also a proper aggravator.
Aguirre v. State,
*1120 The trial court also found “that pri- or attempts to rehabilitate the defendant have been unsuccessful.” It is not entirely clear whether this is simply a restatement of the fact that McCаnn had a criminal record, or was a reference to the statutory aggravating circumstance that the defendant is “in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility.” I.C. § 35-38-1-7.1(b)(3). If the former, it is cumulative and, if the latter, we agree with the Court of Appeals that, because the trial court failed to explain why incarceration beyond the presumptive sentence was neсessary, it improperly considered prior attempts at rehabilitation as an aggravating circumstance.
We disagree with the Court of Appeals that the trial court’s consideration of the nature and circumstances of the сrime was improper. The Court of Appeals took the view that this was an improper aggravating circumstance for two reasons. First, it relied on elements of the offense to enhance the sentence. Second, the Court of Appeals held that A.L.’s pregnancy, because it was “a fact apparently unknown to McCann,” was not a proper aggravating circumstance.
Generally, the “nature and circumstances” of a crime is a proper аggravating circumstance.
Thacker v. State,
Under “nature and circumstances,” the trial court stated, “the facts of this case are particularly aggravating. The case involves a home invasion of a residence for the purpose of committing the crime of rapе. That the defendant attempted the rape of [A.L.] in this matter while she was pregnant. And that these offenses or this series of acts involves multiple victims.” The Court of Appeals was correct that the trial court may not use “a factor constituting a material element of an offense as an aggravating circumstance.”
Spears v. State,
The Court of Appeals also found erroneous the trial court’s finding that the victim’s pregnancy was an aggravating circumstance. We agree with Judge Vaidik that pregnancy is similar to the infirmity or age of the victim in that the defendant’s knowledge of these circumstances is not necessary for them to quаlify as aggravating.
See Stevens v. State,
*1121
McCann also challenges the trial court’s failure to find his abusive childhood and the hardship that will result to his child from incarceration as mitigating circumstances. The finding of mitigating circumstances is within the discretion of the trial court.
Legue v. State,
Finally, McCann contends that the trial court improperly weighed the aggravating and mitigating circumstances. The Court of Appeals remanded this case to the trial court because “it is unclear what weight the trial сourt assigned to each designated aggravator, ... there are now fewer valid aggravating circumstances to consider, [and] ‘we are not persuaded that the original sentence would have been the same had the trial court not relied on ... impermissible factors.’ ”
McCann,
II. Manifestly Unreasonable
McCann also claims that his sentence is manifestly unreasonable. Although this Court has the constitutional authority to review and revise sentences, Ind. Const, art. VII, § 4, it will not do so unless the sentence imposed is “manifestly unreasonable in light of the nature of the offense and the character of the offender.”
Carter v. State,
*1122 The “nature of the offense” is breaking into a home to attack a pregnant woman in her bed and then shooting her boyfriend when he tried to come to her aid. Under “character of the offender,” McCann had a lengthy criminal history including over fifteen arrests, one of which was for breaking into a womаn’s house and sexually assaulting her. In view of these factors, the trial court’s imposition of the enhanced, consecutive sentences was not “clearly, plainly, and obviously” unreasonable.
Conclusion
The sentence imposed by the trial court is affirmed. As to all other issues, the Court of Appeals is summarily affirmed. Ind. Appellate Rule 58(A)(2).
Notes
. Dozier was shot in the chest. The bullet pierced his lung. The injury caused him to miss work for an extended period of time and still interferes with his breathing.