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Williams v. State2/7/2003
.E.2d 1208, 1214-15 (Ind. 2002); Bustamante v. State, 557 N.E.2d 1313, 1321 (Ind. 1990). In this case, judgment was entered against Williams on one count of murder, a felony, which has a presumptive sentence of fifty-five years. Ind. Code § 35-50-2-3(a) (1998).
Under Indiana Appellate Rule 7(B), the "character of the offender" refers to the general sentencing considerations under Indiana Code section 35-38-1-7.1(a) and the balancing of aggravating and mitigating circumstances under Indiana Code section 35-38-1-7.1(b) and (c), as well as the other factors left to the trial court's discretion under section 35-38-1-7.1(d). See Hildebrandt, 770 N.E.2d at 361.
The trial court is not limited to considering only the factors and circumstances contained within the statute, but may also consider other aggravating and mitigating circumstances in determining the sentence. See Ind. Code § 35-38-1-7.1(d). Like the presumptive sentence, the mandatory factors, enumerated aggravating and mitigating circumstances, and trial court discretion have been determined by the General Assembly as matters of public policy. Trial courts must balance aggravating circumstances against any mitigating circumstances in order to determine the proper deviation from the presumptive sentence.
At the sentencing hearing, the trial court found one aggravating circumstance, Williams's lengthy history of juvenile criminal acts and his adult criminal history, and no mitigating circumstances. Williams was sentenced to the maximum of sixty-five years.
Williams contends that as to the aggravating circumstance of his criminal history, the trial court should have given some consideration that his adult conviction occurred when he was within the inmate population and that he was defending himself. "Criminal activity that occurs subsequent to the offense for which one is being sentenced is a proper sentencing consideration." Sauerheber v. State, 698 N.E.2d 796, 806 (Ind. 1998). Therefore, it was proper for the trial court to consider the battery that occurred while Williams was in jail. In addition, Williams had a lengthy juvenile criminal history, which included "nine arrests resulting in four True Findings for charges of Disorderly Conduct, Battery, Theft, and Trespassing." Appellant's App. p. 194. A single aggravating circumstance can justify the enhancement of a sentence. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002).
Williams also takes issue with the fact that the trial court found no mitigating circumstances. He claims that the trial court should have considered his youth at the time of the incident as a mitigating circumstance. The finding of mitigating circumstances is within the discretion of the trial court. Mann v. State, 742 N.E.2d 1025, 1027 (Ind. Ct. App. 2001), trans. denied. A trial court is not required to give the same weight to a mitigating circumstance as the defendant would. Id. at 1028. To establish a reasonable indication that a mitigating circumstance was overlooked, a defendant must show that it was significant and clearly supported by the record. Id. at 1027.
Williams fails to show that this circumstance was both significant and clearly supported by the record in his appeal. The trial court was therefore within its discretion when it rejected Williams's mitigating circumstance. Under all of these facts and circumstances, Williams's sentence of sixty-five years was not inappropriate in light of the nature of the offense and the character of the offender.
Conclusion
The trial court did not abuse its discretion when it allowed Townsend's statements to Lieutenant Rice and Lucille into evidence as excited utterances and when it allowed
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