*1 ORDERED that Jackie IT IS FURTHER provi- comply with the
Rex Burton must 23, Discipline Rule
sions of Admission eligible to become for
Section order at a future date.
reinstatement is directed to
The of this Court Clerk in accordance notice of this Order
forward Admission and Disci- provisions
with the 8(d) governing dis-
pline Rule Section suspension.
barment and proceeding are assessed this
Costs of
against Rex Burton. Jackie
All concur. Justices SULLIVAN, Appellant
Michael Damon (Defendant Below), Indiana, Appellee
STATE Below). (Plaintiff
No. 48S00-8711-CR-01021.
Supreme Court of Indiana.
July Maynard, Murphy, D.
Mark Patrick Anderson, appellant. Gen., Pearson, Richard
Linley Atty. E. C. Webster, Gen., Indianapolis, Deputy Atty. appellee. PIVARNIK, Justice. Defendant-Appellant Molesting charged Murder and Child pen- requested the death and the State had (16) sixteen alty imposed. Sullivan was His victim was a at the time. old *2 1243 forty years aggravated up can to plea agreement was that be girl. old A year five agreed twenty years to dis- an additional and can be the State reached wherein by years mitigating ten cir- and Sullivan reduced penalty the death count miss regards In II charges of cumstances. to Count the agreed plead guilty to the to presumptive thirty years sentence is and Molesting, both as Class Murder and Child accepted the A The trial court aggravate up twenty felonies. to the Court can years to additional and can subtract ten agreement and sentenced Sullivan plea (50) years circumstances. In (60) fifty murder and sixty years for aggravating finds molesting, said terms to be this case the Court as years for child cireumstances that there is a risk the concurrently. served crime; defendant will commit another claims the appeal, In this direct Sullivan of the the nature and circumstances giving in the erred as follows trial court par- crime committed herein and that the for both sentences: maximum enhancement very ticular crime was serious and hei- 1) juvenile acts as consideration of other nous; the fact the was five victim factors; 2) finding by the aggravating the age physi- to years and considered be of the an factor trial court as age cally age infirm due to her the [and] commit another risk that Sullivan will defendant; the fact that the defen- the crime; 8) specifications of inadequate and delinquent activity; that dant had some mitigat- aggravating and factual bases for the defendant is in need of correctional ing circumstances. that can or rehabilitative treatment best victim, that the The facts tended to show penal by be served his commitment to a L.,T. was partially clad, found undressed facility; imposition of a reduced sen- down, from the waist apparently having re- suspension sentence or tence or a of the cently been in vaginal area, molested the and depreciate imposition probation would two, dead from more, or perhaps blows to the Therefore, of the crime. the seriousness head. Sullivan admitted the crimes in state- aggravates the sentence the Court ments to police and during different (60) sixty I and in Count Count hearings and probation interviews with offi- (50) fifty years. II to The Court finds cers. he, He stated the victim and another sentences shall served con- that the child, Shaw, Dustin went into a wooded area currently the defendant shall and that near apartment their buildings. Shaw went (1) and year receive one and one hundred out of the woods on an alternate route from eredit, (158) fifty-eight days which shall T. L. and Sullivan. Sullivan tried experi- good time. The Court fur- be considered sexually ment girl with the but she soon re- that the defendant be ther recommends sisted his advance crying. Sullivan stated placed Indiana Youth Center. De- at the he tried to quiet scare her with the initial hereby remanded to the custo- fendant is picked blow from a up along stick the hike. delivery dy Madison for of the Sheriff of She sereamed and Sullivan struck her Department of to the Indiana Correction. again. pulled He then her to one side of motion of the State of Indiana Count On the area they were in and fled the scene. hereby dismissed. Costs III is ordered THIS 26th vs defendant. SO ORDERED The court following judg- entered the February, vs Defen- day of 1987. Costs ment and February sentence on 1987: I, (Record, pp. 17-18). Judgment Vol dant plea of having entered a The defendant I I: guilty January on 1987 to Count hearing sentencing Molesting, During the II: Murder and Count Child regarding having court heard evidence Felony and the Court Class A of the witnesses report juvenile activities. One presentence considered the boy who testified plea B., year-old accepts now T. a seven the evidence was had Sullivan defendant as incident where guilty regarding and sentences the an The years old. regards he was five The Court finds him when follows: fondled form of a in the presented is presumptive I sentence evidence Count videotaped interview with T. B. made support aggravating circumstances that Detective Dale Koons of the Anderson Police imposed the inclusion the sentence so that Department. argues boy's be harmless of the factor would story wholly uncorroborated and inherent- if error. even it was Forrester *3 ly incredible and therefore unworthy of be- 475, 487; (1982), Ind., Pavey 440 N.E.2d v. lief. The other report evidence was a includ- (1985), App., Ind. 477 N.E.2d 963. State presentence ed in the investigation report which listed juvenile Sullivan's activity in II Louisville, Kentucky. reports These includ- trial court erred Sullivan claims the allegations theft, ed of sodomy, being and that, finding aggravating circum by as an beyond parental control. Sullivan testified stance, the risk com there is Sullivan will these charges disposed were of in Kentucky crime, finding mit another in that such by either finding dismissal or a of guilty. not supported by not the evidence. concerning There no other evidence was complains the matters. Sullivan the trial allega- authority cites no for this Sullivan appeared court to use these mat- other than his own observation of the tion aggravating ters as factors in his sentence. weight eredibility given to the to be days testimony of the trial court heard. two sentencing It is well settled that is within finding court's that He claims the trial the discretion of the trial court. v. Warren "propensity to involve himself Sullivan's (1984), Ind., 470 N.E.2d State younger age" children of a much was with weight The trial court is to determine the supported not due to the weakness of the give testimony credibility the and the to juvenile pattern of the referred to evidence giving it. be accorded to the witness Hol in Issue I He further claims the above. 256, 257, (1979), 270 Ind. 384 sclaw v. State particular clearly evidence shows this crime In N.E.2d Jordan v. State spontaneous, unpremeditated a occur- 407, 410, (1987),Ind., N.E.2d this Court 512 was rence and part pattern not a of criminali- of proper held it is for a trial court to hear Likewise, ty. claims the Record is Sullivan juvenile activity, not as a fact and consider any devoid of evidence he involved himself by sentencing that can used a court to younger persons for some criminal sentence, enhance a criminal but rather intent; ample purpose or rather there was prior be used as a consideration of criminal testimony presented he did so as a history activity aggra as an conduct or apparent result of his emotional and social (1986), vating factor. In Evans immaturity. allegations not Sullivan's do Ind., 919, 923, sentencing 497 N.E.2d They describe reversible error. demon- judge properly he referred to a acted when juvenile record which established the defen judge disagreement strate a with the trial history weight dant had a of criminal conduct and in his assessment of the and credit pattern given there was a risk that this could and as factors to be to the evidence continue. arriving proper at a sentence. The trial heard all of the evidence and it was court court, in sentenc apparent It is the trial province judg- to make these within his Sullivan, ing used this evidence as one say there inade- ments. We cannot was finding there is a risk that factors in its the quate on which he based his final evidence He another crime. will commit Sullivan find no decision and therefore reason circumstances aggravating as other found second-guess him. cireum- and heinous nature and the serious committed, the fact of the crime stances IH age and con five the victim was the trial court did Finally, Sullivan claims infirm to her physically due sidered to be significant specifically identify all miti- not age, considering age and aggravating circumstances and gating and delinquent prior record of fact he had a special why each circum- reasons court used state activity. Obviously, the trial mitigating or considered to be as stance was proper facts and circumstances other preciate the seriousness of the crime. The addition, he claims there aggravating. In sufficiently aggrava- showing the trial court evalu- trial court stated the no aggrava- circum- tors he found to exist and those ated and balanced against supported by the supported the evidence tors are evidence. We stances say imposed circumstances order to cannot the sentence is mani- festly unreasonable based on the record. aggravators offset if the determine Further, claims, 2(1). mitigators. Ind.R.App.Rev.Sen. mentioning mitigating
court erred not The trial court is affirmed. they supported where were circumstances in the record. by the evidence DICKSON, JJ., GIVAN and concur. *4 permissible concedes it is SHEPARD, C.J., in concurs result trial court to find and consider for the opinion. without it not man mitigating cireumstances but DeBRULER, J., dissents with sentencing court to do so. datory for the separate opinion. 898, (1985),Ind., 485 N.E.2d v. Smith State Justice, mitiga DeBRULER, dissenting. 902. Sullivan is correct where in the record not detailed tion is found but (1986), Ind., In Evans v. 497 N.E. court, presumption may trial 919, eighteen-year-old, along with 2d an such evidence was overlooked arise others, hitting in killed a man him three properly considered. Town and hence not robbing in the head a concrete block with Ind., (1986), 498 N.E.2d send v. State youth previously him. The had been com Also, the trial court fails to where Boys' for an mitted to the Indiana School factors, reviewing court find involving a knife. He received an incident and find such mit may nevertheless review Here, fifty appel years. enhanced term of (1987),Ind.App., igation. Dockery v. State functioning in younger, lant was and was 504 N.E.2d socially twelve-year-old. as a school and routinely played with children much did not ex He Although the trial court he did not converse mitigators younger. in find At school pressly dispose of his or the teachers and factors at other students ings, he discussed all of these with questions in class with a sin ap responded his length counsel and indicated with impulsively frenzy in a gle He killed is also true of the word. praisal of them. This empirical evidence that the give and there is no he used to aggravating factors special height subjected to or victim was count. He sentence on each maximum physical psychological or ened forms of tragedy and heinous openly discussed conjunction normally found in not abuse particular crime and the man ness of this His court these felonies. He further with it was committed. ner which that he was a determination apparent per record showed length at discussed parents of his beyond the control stating he wished he had sonality problems, custody for he taken into psychiatrist and that knowledge of a insight neighbor player from a stealing a cassette them. understand psychologist or better a four- sodomy and for ap ing apartment give him their counsel to He invited undoubtedly Appellant is year-old in 1984. factors in order to various praisal these around dangerous permitted in this when proper answer up with the come prior experiences his children and He small difficult situation. very complex and much fact that he was the law and the aggravating circumstances then found as unquestiona are than his victims stronger commit another would the risk Sullivan weight. How bly entitled to crime, is in need of correction that Sullivan maxi sentence to the enhance this ever to treatment that can best al or rehabilitative penal mum is Ind.R. manifestly unreasonable. to a by his commitment be served 2(1). of this of The nature App.Rev.Sen. imposition of a re facility, and that no warrants his offenses sen fender and suspension of the more or a duced sentence felo for both standard sentence than the would de- imposition probation tence or nies, to be served concur such sentences
rently. Naney McClure, Broyles, L. & McClure
Kammen, Indianapolis, appellant. Pearson, Gen., Linley Atty. E. E. Louis BISHOP, Appellant Michael D. Ransdell, Gen., Deputy Atty. Office of (Defendant), Gen., Atty. Indianapolis, appellee. BUCHANAN, Judge. (Plaintiff). Indiana, Appellee STATE of No. 49A02-8810-CR-00382. CASE SUMMARY *5 Appellant-defendant Bishop Michael D. Indiana, Appeals of Court of (Bishop)appeals from his conviction of auto Second District. theft,1 claiming felony, a class C there was July support insufficient evidence verdict. affirm.
We
FACTS 2, 1988, February Gerald Zinermon On (Zinermon) home in In- was at his sister's dianapolis. Zinermon's 1966 Buick automo- parked in front of the house and bile was approximately p.m., he left at 10:80 house and started his car. He left it run- inside, ning, approximately went back five minutes later Zinermon observed that man, Bishop, got into a later identified as away. the car and drove immediately police, Zinermon called the Indianapolis Police Officer Matt Faber (Faber) vicinity, to the saw the ve- drove began pursuit. pro- As the hicle and chase gressed, Bishop finally struck another around, automobile, spun and hit a tele- phone pole. Bishop immediately ran from pursue him the car Faber did not be- but may at the scene cause he believed others injured. have been Bishop description issued a over Faber thereafter, shortly he police radio and ap officer informed that another matching Bishop's prehended suspect de to the scene and scription. Faber drove man Bishop identified as the who positively (1988). Ind.Code 35-43-4-2.5