ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Neil L. Weisman Jeffrey A. Modisett
South Bend, Indiana Attorney General of Indiana
Thomas D. Perkins
SUPREME COURT OF INDIANA
KOFI MODIBO AJABU, ) ) Appellant (Defendant Below ), ) ) v. ) No. 71S00-9810-CR-546 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
January 21, 2000
Kofi Ajabus role in a triple robbery-murder led to a sentence of life in prison without parole. When he appealed, we found certain defects in his sentencing and remanded to the trial judge, who imposed prison terms totaling 240 years. Ajabu claims this sentence is excessive. In light of the fact that the trial court could well have imposed life without parole a second time, we affirm.
On appeal, this Court affirmed Ajabus convictions, but remanded for a new sentencing
order. We observed that the trial courts findings on the (b)(1) aggravator
seemed more pertinent to a knowing killing and asked the trial judge to
be more particular about what facts he thought demonstrated that Ajabu killed intentionally
-- as required, when a court relies on Ind. Code § 35-50-2-9(b)(1).
Ajabu, 693 N.E.2d at 939. We noted that the other two aggravating
circumstances the trial court found in imposing life without parole were unchallenged and
observed: The only open question is the quantum of aggravating evidence to
be weighed against the mitigating factors. Id. at 940.
On remand, the trial court determined that it could not find proof beyond
a reasonable doubt that Ajabu killed intentionally. (R. at 95.) Rather
than proceed to balance the two other LWOP aggravators as against the mitigators,
the court resentenced Ajabu under the general felony sentencing statutes. It imposed
60 years for each murder count,See footnote 20 years for each robbery count,See footnote and
13 years for each confinement count.See footnote The court then ordered that the
sentences for confinement and robbery run concurrently, but ordered that those sentences run
consecutively to the murder sentences.See footnote (R. at 109-110.) This resulted in
three 80-year sentences running consecutively for a total of 240 years.
As we have indicated above, the sentencing court need not have abandoned the
life without parole sentence on remand. Our previous opinion said that the
court must make the findings required to establish the (b)(1) aggravating circumstance beyond
a reasonable doubt if it used the (b)(1) aggravator to support imposition of
life without parole.
Ajabu, 693 N.E.2d at 240. If, as it
turned out, the sentencing court could not make the findings necessary to support
this aggravator, then it could have relied on the (b)(8) and (b)(13) aggravating
circumstances to impose life without parole.
Thus, we approach Ajabus contention that his sentence is manifestly unreasonable
See footnote in light
of the fact that the trial court could well have re-imposed LWOP using
the other two statutory aggravators.
A. Aggravating Factors Sentence Enhancement. In sentencing Ajabu on remand,
the trial court first considered the aggravating and mitigating factors. Indiana Code
§ 35-38-1-7.1 governs the use of aggravating and mitigating factors and lists specific
factors that a court may consider while sentencing. In enhancing a sentence,
the court should 1) identify the significant aggravators and mitigators, 2) relate the
specific facts and reasons which lead the court to find those aggravators and
mitigators, and 3) demonstrate it has balanced the aggravators against the mitigators in
reaching its sentence. Gregory v. State, 644 N.E.2d 543, 545 (Ind. 1994).
Here, the court found two statutory aggravating factors: 1) that the imposition of
a reduced sentence or probation would depreciate the seriousness of the crime, and
2) that Ajabu is in need of correctional or rehabilitative treatment that can
best be provided in a penal facility. (R. at 98-99.)
With respect to the first aggravator, the court reasoned that imposing any sentence
less than the enhanced sentence would depreciate the seriousness of the crime.
In so deciding, the court relied on Ajabus actions of [b]ringing a weapon
to the Allemenos home, disguising himself, standing watch over Nicholas Allemenos, [taping] Nicholas
Allemenos and dragging Lisa Allemenos by her feet. (R. at 99.)
Courts speak about the depreciating the seriousness of a crime aggravator in two
different ways. Indiana Code § 35-38-1-7.1 says it is an aggravating circumstance
that the [i]mposition of a reduced sentence . . . would depreciate the
seriousness of the crime (emphasis added). In this instance, the aggravator cannot
be used to justify an enhanced sentence, but may only be used when
the judge considers imposing a sentence shorter than the presumptive one. Ector
v. State, 639 N.E.2d 1014, 1016 (Ind. 1994). An alternate form of
this factor focuses on the imposition of an enhanced sentence. This Court
has . . . upheld sentence enhancement based upon a finding that a
sentence less than an enhanced term sought by the prosecution would depreciate the
seriousness of the crime. Id.
Here, the trial court acknowledged the differing uses of this aggravator and specifically
articulated that use of the aggravator in the instant case fell under the
alternate version. The court reasoned that, in light of the facts and
circumstances of the case, and since the prosecution had requested an enhanced sentence,
(R. at 181), the imposition of any sentence less than an enhanced sentence
would depreciate the seriousness of the crime, (R. at 99). This
was an appropriate finding in light of the particular facts the court identified
in support of it.
With respect to the second aggravating circumstance, Ajabus need for correctional or rehabilitative
treatment, the court stated:
The most obvious facts supporting this aggravator are the crimes themselves: the brutal method of killing and the number and ages of the victims. A person capable of committing the atrocities for which Kofi Ajabu was convicted is in dire need of correctional treatment. This court knows nothing that exists outside the correctional system that can accomplish the correctional and rehabilitative treatment necessary to deal with the heinous conduct and reckless disregard for human life engaged [in] by Kofi Ajabu.
(R. at 98-99.)
In using this aggravator to support an enhanced sentence, it is not enough
that the sentencing court simply recite the statutory language. Many times, as
was the case here, there is no question that the defendant will be
incarcerated in a penal facility. Thus, for this aggravator to support an
enhanced sentence, the court must give a specific and individualized reason why the
defendant is in need of correctional treatment that can best be provided by
a period of incarceration in excess of the presumptive sentence. See Berry
v. State, 703 N.E.2d 154, 158 (Ind. 1998). The trial court did
so here, and this aggravator was appropriately given weight in imposing an enhanced
The trial court properly considered two statutory aggravators, in addition to several other
aggravators not listed in the statute.
See footnote These factors were 1) the nature
and circumstances of the crime, specifically that the victims had been tortured and
were in extreme pain during their confinement and that Ajabu exercised control over
their situation; 2) Ajabus role in the planning and execution of the events;
and 3) the psychological and emotional effects on the victims families. (R.
Determining that the aggravating factors outweighed the mitigating factors, the court enhanced the
sentences for murder and robbery, and ordered that the sentences for robbery and
confinement run concurrently to the murder sentences.
B. Aggravating Factors Consecutive Sentencing. The imposition of consecutive sentences is a separate and discrete decision from sentence enhancement, although both may be dependent upon the same statutory aggravating circumstances. Ind. Code Ann. § 35-38-1-7.1(b) (West Supp. 1993); Lindsey v. State, 485 N.E.2d 102, 108 (Ind. 1985). As with sentence enhancement, even a single aggravating circumstance may support the imposition of consecutive sentences. Stewart v. State, 531 N.E.2d 1146, 1150 (Ind. 1988).
Here, the sentencing court on remand identified the aggravating factors previously discussed, gave
specific facts and reasons supporting each aggravator, and weighed these aggravators against the
mitigating circumstances. See Fry v. State, 521 N.E.2d 1302, 1306 (Ind. 1988);
(R. at 92-107.) The court also said: The evidence presented during
Kofi Ajabus trial detailed the extreme viciousness of the murders and the brutality
leading up to the murders. This along with the aggravating circumstances set
out herein make it clear that the court can impose consecutive sentences. .
. . (R. at 106.) Having previously determined that the aggravating
factors were properly found, we conclude that the court did not err in
using these factors to support consecutive sentencing.
C. Failure to Consider Mitigating Factors. Finally, Ajabu contends that the
trial court erred in failing to consider several mitigating circumstances. Ajabu presented
the following mitigators for the courts consideration: 1) that Ajabu demonstrated remorse,
(R. at 190), 2) that he did not intend to kill the victims
when the crimes were originally planned or when they were executed, (R. at
193), 3) that he had no history of delinquency or criminal activity, (R.
at 196), 4) that he would respond affirmatively to probation or short-term imprisonment,
(R. at 197), and 5) that he is unlikely to commit another crime,
(R. at 198).
The finding of mitigating factors is not mandatory and rests within the discretion
of the trial court. Hurt v. State, 657 N.E.2d 112, 115 (Ind.
1995). Only when the trial court fails to find a significant mitigator
that is clearly supported by the record is there a reasonable belief that
it was improperly overlooked. Legue v. State, 688 N.E.2d 408, 411 (Ind.
The mitigators which Ajabu claimed the sentencing court overlooked are not clearly supported
by the record. Ajabu first argues that the sentencing court failed to
consider the mitigating factor that he did not intentionally kill anyone. (Appellants
Br. at 10.) To be sure, the court said it could not
find proof beyond a reasonable doubt that Mr. Ajabu committed murders by intentionally
killing his victims while attempting to commit burglary or robbery. (R. at
95.) When a court finds the evidence inadequate to prove an intentional
killing, it does not necessarily follow that the killing was unintentional or unknowing
or accidental. On the available evidence, the court was not required to
find lack of intent as a mitigator.
Ajabu also asserts that the trial court should have found that he did
not contemplate that his crime would cause serious harm to persons or property.
Ind. Code Ann. § 35-38-1-7.1(c)(1) (West Supp. 1993). The sentencing judge
was entitled to be skeptical about this proposition in light of the fact
that Ajabu arrived at the Allemenos home armed with weapons and duct tape.
(R. at 95.) There is no significant evidence in the record
to the contrary. Likewise, the record does not support Ajabus contention that
he is likely to respond affirmatively to probation or short-term imprisonment or that
he is unlikely to commit another crime.
The sentencing court did find two significant mitigating factors: 1) that Ajabu
had no history of delinquency or criminal activity and 2) that he demonstrated
remorse. (R. at 104.)
See footnote It then found that the aggravating factors
in each count outweighed the mitigating factors. (R. at 108.)
The sentencing court properly considered the aggravating and mitigating factors in imposing enhanced
and consecutive sentences. The sentence imposed represents a valid exercise of trial
Accordingly, we affirm.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.