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Moore v. State5/23/2005
a hundred and twenty years for Mr. Paul Moore.
Tr. at 1119-21.
Moore contends that the trial court failed to give sufficient weight to his minimal criminal history as a mitigating circumstance and violated his Sixth Amendment right to trial by jury, as stated in Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531 (2004), by imposing consecutive sentences based on an aggravating circumstance not found by the jury beyond a reasonable doubt. Moore also challenges the appropriateness of his sentence under Indiana Appellate Rule 7(B). We address each contention in turn.
Our supreme court has explained that
n order to impose consecutive sentences, a trial court must find at least one aggravating circumstance. When a trial court imposes consecutive sentences, when not required to do so by statute, will examine the record to insure that the trial court explained its reasons for selecting the sentence imposed. The trial court's statement of reasons must include: (1) the identification of all significant aggravating and mitigating circumstances; (2) the specific facts and reasons that lead the court to find the existence of each such circumstance; and (3) an articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and balanced in determining the sentence.
Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002) (citations omitted). With respect to Moore's first contention, we note that " finding of mitigating circumstances, like sentencing decisions in general, lies within the trial court's discretion[,]" and that the court "is not required to give the same weight or credit to mitigating evidence as does the defendant." Wilkie v. State, 813 N.E.2d 794, 799 (Ind. Ct. App. 2004), trans. denied. Moore cites Loveless v. State, 642 N.E.2d 974 (Ind. 1994), for the premise that a lack of prior criminal convictions is "a strong mitigating factor." Appellant's Br. at 28. We observe that the defendant in Loveless apparently had no criminal record whatsoever, but in any event, we cannot conclude that Moore's minimal criminal history outweighs the "uniquely aggravating" nature and circumstances of his crimes as detailed by the trial court in its sentencing statement. We find no abuse of discretion.
As for Moore's Sixth Amendment argument, our supreme court recently held that " here is no constitutional problem with consecutive sentencing so long as the trial court does not exceed the combined statutory maximums" as defined in Blakely - in this case, fifty-five years for the murder convictions and ten years for the class B felony convictions. Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005). There is no constitutional problem here.
Finally, Moore asks us to revise his sentence pursuant to Appellate Rule 7(B), contending that it is "inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). We acknowledge Moore's minimal criminal history, but given his cold-blooded execution and subsequent burning of the victims, we cannot conclude that his 120-year sentence is inappropriate.
Affirmed.
RILEY, J., and ROBB, J., concur.
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