Pennington v. State

821 N.E.2d 899

Larry PENNINGTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0404-CR-309.

Court of Appeals of Indiana.

February 4, 2005.

Ellen M. O'Connor, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Stephen R. Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Defendant-Appellant Larry Pennington appeals the sentence he received for his conviction of the Class D felony offense of operating a motor vehicle while intoxicated with a previous conviction within five years. Ind.Code § 9-30-5-3. He was sentenced to a term of three years, with six months suspended.

We affirm.

ISSUES

Pennington presents two issues for our review, which we restate as:

I. Whether Pennington's sentence is inappropriate pursuant to Ind. Appellate Rule 7(B).

II. Whether Pennington's sentence violates his constitutional rights as set forth in Blakely v. Washington.

FACTS AND PROCEDURAL HISTORY

In July 2002, Pennington was driving while intoxicated. He was arrested and charged with this offense. A jury found him guilty of driving a motor vehicle while intoxicated as a Class C misdemeanor pursuant to Ind.Code § 9-30-5-1. Pennington then pleaded guilty to the enhanced charge of driving a motor vehicle while intoxicated with a previous conviction of operating while intoxicated within the last five years. This resulted in a conviction of operating while intoxicated as a Class D felony pursuant to Ind.Code § 9-30-5-3. The trial court sentenced Pennington on this charge to three years, with six months suspended. It is from this sentence that he now appeals.

DISCUSSION AND DECISION

I. INAPPROPRIATE SENTENCE

Pennington first contends that his sentence is inappropriate pursuant to Ind. Appellate Rule 7(B). Specifically, he argues that the trial court failed to properly set forth his criminal history as an aggravating circumstance; that the trial court used other aggravating circumstances which were not sufficient to enhance his sentence; that the court should have afforded more weight to the one mitigator that it found; and that the trial court overlooked significant mitigating circumstances.

A. Aggravating Circumstances

Under Article VII, Section 6 of the Indiana Constitution, we have the constitutional authority to review and revise sentences. However, we will not do so unless the sentence imposed is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Our review under Appellate Rule 7(B) is extremely deferential to the trial court. Martin v. State, 784 N.E.2d 997, 1013 (Ind.Ct.App.2003), reh'g denied. The "nature of the offense" refers to the statutory presumptive sentence for the class of crimes to which the offense belongs. Id. Thus, the presumptive sentence is the starting point in our consideration of the appropriate sentence for the crime committed. Id. The "character of the offender" refers to the general sentencing considerations under Ind.Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind.Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial court's discretion under Ind.Code § 35-38-1-7.1(d). Id.

Additionally, if a trial court imposes a sentence based upon aggravating or mitigating circumstances, it must include in the record a statement of its reasons for selecting a particular sentence. Ind.Code § 35-38-1-3. The following elements must be included in the court's sentencing statement: (1) all significant aggravating and mitigating circumstances; (2) the reason why each circumstance is determined to be mitigating or aggravating; and (3) a demonstration that the mitigating and aggravating circumstances have been evaluated and balanced. Allen v. State, 722 N.E.2d 1246, 1250-51 (Ind.Ct.App.2000).

In the present case, Pennington was convicted of a Class D felony. The presumptive sentence for a Class D felony is one and one-half years, with the maximum sentence being three years and the minimum sentence being six months. Ind.Code § 35-50-2-7. Pursuant to Ind.Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature and circumstances of the crime committed and the defendant's criminal history. Here, the conviction was for an alcohol-related offense, and the court noted Pennington's lengthy criminal history which includes numerous alcohol-related offenses. However, Pennington asserts that the trial court failed to articulate the specific nature of his criminal history.

It is true that the greatly preferred and easily executed procedure, which the trial court did not employ in this case, is to recite the incidents comprising the criminal history when using that history as an aggravating circumstance to support an enhanced sentence. Battles v. State, 688 N.E.2d 1230, 1235 (Ind.1997). Further, we have determined that merely stating that the defendant has a criminal history is conclusory; instead, the "criminal history" aggravator must be substantiated by specific facts. Mayes v. State, 744 N.E.2d 390, 396 (Ind.2001) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986)). In Mayes, the court determined that the statement of reasons for enhancing Mayes' sentences was deficient because the reference to his prior criminal history was not sufficiently individualized. Interestingly, however, the court found that the deficiency did not necessitate remand to articulate the specific facts because it was readily apparent from the presentence report and the prosecutor's comments in the record that Mayes had a relevant prior felony conviction. Moreover, this Court has stated that in non-death penalty cases it is sufficient if the trial court's reasons for enhancement are clear from a review of the sentencing transcript. Berry v. State, 819 N.E.2d 443, 453 (Ind.Ct.App.2004),trans. pending (citing Day v. State, 669 N.E.2d 1072, 1073 (Ind.Ct.App.1996)).

By reviewing the sentencing transcript and the trial court's sentencing statement in the instant case, we are able to conclude that although the trial court did not sufficiently articulate the information, the court did engage in the underlying evaluative process as required by Ind.Code § 35-38-1-3. The court referred to Pennington's presentence report at the sentencing hearing, and Pennington's counsel informed the court that Pennington had been given a copy of the report and had noted no errors. The presentence report contained Pennington's criminal history which clearly revealed pending felony and misdemeanor charges, as well as numerous felony and misdemeanor convictions. Most of these convictions are alcohol-related, commencing in the 1970's and continuing to the present. At the sentencing hearing, the State pointed to Pennington's extensive criminal history, and Pennington himself commented on his "lengthy history," as well as his inability to quit drinking. Tr. at 66. Indeed, Pennington's counsel stated to the court that Pennington's "history does make up for any mitigating factors" and that "[i]t is very difficult to even disagree with the State's recommendation based on his history...." Tr. at 69. In sentencing Pennington, the court noted that his history was "remarkable [with regard to] the amount and duration of it" and that it contained "[n]umerous alcohol and drug related convictions." Tr. at 71. Although the court did not sufficiently articulate the individual incidents of Pennington's criminal history, his lengthy history, particularly with alcohol-related offenses, was apparent from the presentence report, as well as from the comments of all those involved in the sentencing hearing. Thus, we are satisfied of the court's awareness of the individual occurrences that comprised Pennington's history, in addition to its performance of the required process of evaluating and balancing. The court properly enhanced Pennington's sentence based upon the prior convictions aggravator. See id. (holding that even though trial court did not detail defendant's criminal history, court's sentencing statement and sentencing transcript sufficiently supported court's decision to enhance defendant's sentence).

Pennington further claims that the trial court cited other aggravators that he asserts "do not qualify as egregious or heinous facts" which would justify an enhanced sentence. The three circumstances discussed by Pennington are his refusal to submit to a portable breath test ("PBT"), the discovery of an alcohol bottle in his vehicle, and his unsuccessful attempts at rehabilitation. The trial court unequivocally stated that the aggravating factor in sentencing Pennington was his criminal history. The court did mention the circumstances of the PBT refusal and the alcohol bottle, but in doing so, it stated that they were "not significant." Tr. at 71. It also referred to Pennington's failed attempts at alcohol rehabilitation as it was outlined in the presentence report. The transcript reveals that the judge was reviewing the documents before him, namely the presentence report, and that he engaged in a frank discussion with Pennington about his failed attempts at treatment. Thus, the transcript and the court's sentencing statement disclose that the court did not use these circumstances as aggravating factors, but rather that it was merely discussing Pennington's history as it was set forth in the presentence report. The court's discussion of these matters merely amounts to commentary on the circumstances surrounding this offense. We find no error.

B. Mitigating Circumstances

With respect to mitigating factors, it is within a trial court's discretion to determine both the existence and the weight of a significant mitigating circumstance. Allen, 722 N.E.2d at 1251. Given this discretion, only when there is substantial evidence in the record of significant mitigating...