Payne v. State

1

Wendy Owen Payne, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 21A-CR-1067

Court of Appeals of Indiana

December 22, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.

Appeal from the Vanderburgh Superior Court Trial Court Cause No 82D03-1907-MR-5029 The Honorable Robert J. Pigman, Judge

ATTORNEY FOR APPELLANT Tyler D. Helmond Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Altice, Judge.

Case Summary

[¶1] Wendy Payne appeals the five-year executed sentence that was imposed following her conviction for reckless homicide, a Level 5 felony. Payne claims that the trial court abused its discretion in sentencing her and that the sentence is inappropriate in light of the nature of the offense and her character. We affirm.

Facts and Procedural History

[¶2] On July 20, 2019, fifty-three-year-old Payne stabbed and killed her husband, Edward, during an argument at their Evansville home. Immediately after the stabbing, Payne called 911 and her neighbor, admitting in both calls that she had just killed her husband. When police officers arrived at the residence, Payne was wearing a blood-covered nightgown and smelled of alcohol. It was determined that Edward died of sharp force trauma to the chest from a stab wound to the heart. Edward also had cuts on his shoulder and chest, as well as defensive wounds on his left hand.

[¶3] The State charged Payne with murder on July 22, 2019. Following a three-day jury trial that concluded on March 16, 2021, Payne was found guilty of reckless homicide, a lesser-included offense of murder. On May 7, 2021, the trial court held a sentencing hearing. Payne presented testimony regarding her alcohol counseling and the progress she had made toward sobriety while incarcerated. Payne pointed out that she had no prior convictions and testified that she was remorseful about the incident.

[¶4] The trial court found the nature and the circumstances of the offense, the repeated use of a deadly weapon during the offense, and Payne's longstanding alcohol abuse, as aggravating factors. Although the trial court identified Payne's lack of criminal history as a mitigating factor, it did not give it significant weight. At the hearing, the trial court stated

[W]hether your intent was reckless which was what the jury found-it involved a sustained use of that weapon, not just a single stab wound as you described on the witness stand. That is not how this offense occurred and the victim suffered a number of wounds that indicated, I believe as the Prosecutor characterized it at trial, a slashing-type attack in which numerous efforts were made to, to harm the victim. . . . There's been a long period of alcohol abuse here. . . . [T]he alcohol abuse continued and it ultimately culminated in Edward . . . losing his life so I don't find that to be an aggravating circumstance but a slightly mitigating one because after having gone through the [alcohol abuse] program which is designed as you know to give you the tools and the means to deal with substance abuse, alcohol abuse, it didn't, it didn't take.

. . .

I did not select the maximum sentence even though there was a death involved here because Indiana law clearly reserves that sentencing range for the worst of the worst, you are not that. You are not the worst of the worst by any stretch of the imagination but five years, I think, is an appropriate sentence here. Anything below five years would seriously depreciate the seriousness of this crime, the loss of a human life, the use of a deadly weapon, the fact that [Edward] had other wounds on his body indicating a series of assaults upon his person.

Transcript Vol. III at 110-112 (emphases added). The trial court then sentenced Payne to five years of incarceration. She now appeals.

Discussion and Decision

I. Abuse of Discretion

A. Mitigating Circumstances

[¶5] Payne claims that the trial court abused its discretion in sentencing her because it failed to identify mitigating factors that were supported by the record. Sentencing decisions are within the authority of the trial court and are only reviewed for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Holsapple v. State, 148 N.E.3d 1035, 1039 (Ind.Ct.App. 2020). Examples include failing to enter a sentencing statement at all, failing to explain the underlying reasons for the aggravators and mitigators that were found, omitting reasons that are clearly supported by the record and were advanced for consideration, and giving reasons that are improper as a matter of law. Anglemyer, 868 N.E.2d at 490.

[¶6] Trial courts are required to enter sentencing statements whenever imposing a sentence for a felony. Id. If the sentencing order includes a finding of aggravating or mitigating circumstances, the statement must explain why each factor has been determined to be mitigating or aggravating. Id.

[¶7] The finding of mitigating factors is not mandatory and rests within the discretion of the trial court. O'Neill v. State, 719 N.E.2d 1243, 1244 (Ind. 1999). The trial court is not obligated to accept the defendant's arguments as to what constitutes a mitigating factor. Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). In other words, the trial court is not compelled to credit mitigating factors in the same way as would the defendant. Pennington v. State, 821 N.E.2d 899, 905 (Ind.Ct.App. 2005). Further, the trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001).

[¶8] On the other hand, the trial court may "not ignore facts in the record that would mitigate an offense, and a failure to find mitigating circumstances that are clearly supported by the record may imply that the trial court failed to properly consider them." Id. An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).

[¶9] Payne asserts that the trial court failed to identify her lack of criminal history as a mitigating factor. Notwithstanding this claim, the trial court specifically considered Payne's lack of criminal history in its sentencing order and noted it as a "mitigating circumstance." Appellant's App. Vol. II at 19. Indeed, the trial court observed at the sentencing hearing that Payne had previously been charged with operating a vehicle while intoxicated but acknowledged that the charge had been dismissed because Payne had completed an alcohol abuse program. The trial court pointed out, however, that Payne continued to abuse alcohol after the treatment program and that her alcohol consumption contributed to the instant offense. As a result, the trial court determined that Payne's lack of criminal history was only "slightly" mitigating, transcript vol. III at 110-11, which it was entitled to do. See Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (holding that the trial court acted within its discretion in considering the defendant's lack of prior criminal history as a mitigating factor but declining to accord it significant weight).

[¶10] Payne next claims that the trial court should have considered her expression of remorse as a mitigating circumstance. Although remorse has been recognized as a valid mitigating factor, the trial court "can best determine whether a defendant's remorse is genuine." Phelps v. State, 969 N.E.2d 1009, 1020 (Ind.Ct.App. 2012), trans. denied. A trial court's assessment of a defendant's proclaimed remorse is similar to a determination of credibility. Pickens v. State, 767 N.E.2d 530, 534-35 (Ind. 2002). That is, substantial deference is given to the trial court's evaluation of a defendant's remorse. Phelps, 969 N.E.2d at 1020.

[¶11] At the sentencing hearing, the trial court commented that

Remorse is always difficult. Where you stand, sitting here today I am sure that you deeply regret that [Edward] is gone. Some of your behavior at the scene and comments at the scene and some of the comments made on the phone calls that the Government played showed just the opposite. Showed virtually no remorse for what had happened and that's something only you can determine. I really do hope in your own heart you, you've come to accept responsibility for this death, that you will live your life from this day forward in a way that atones for it as best you can by being the best possible person you can be and treating others with kindness and respect but only you know whether that's going to happen or not, only you know whether you've made that commitment and it's very difficult for a Court to assign a great deal of weight to that in my opinion because what I've seen over the years, the many, many years I've been here now, is so much of that is self-centered and based on the exigencies at the moment, that is you're facing sentence for a serious crime so I'm not going to give that much weight, if any.

Transcript Vol. III at 111 (emphasis added).

[¶12] It is apparent that the trial court considered all the evidence when considering whether Payne's expression of remorse could amount to a...