Attorneys for Appellee
Attorney General of Indiana
Scott A. Kreider
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
February 28, 2003
Defendant Terry Brown appeals his convictions for two murders and consecutive sentences of life without parole. We affirm the convictions but, finding the sentencing order to be inadequate, impose instead a sentence totaling 110 years.
Meanwhile, Officer Banush apprehended Defendant. After handcuffing Defendant, Officer Banush found a
black leather glove on the ground and a matching glove on Defe
In addition, Defendant had blood on his clothing, which later proved to match
that of Young. Officer Banush did not see the object that he
had observed Defendant carrying from the barbershop. However, a search of the
area near the barbershop revealed a bag with two guns, a gun sight,
and a white piece of paper. The document appeared to have blood
on it. One of the guns, a .38 caliber revolver, had six
empty shell casings in it. The other gun, a 9mm semiautomatic, was
loaded and had one round in the chamber and one round missing.
Bullet fragments were removed from the bodies of both Young and Hunter.
In addition, the officers recovered bullets and a 9mm shell casing at the
Defendant was charged with two counts of Murder. The State also filed
one count seeking life imprisonment without parole for Youngs murder. As the
mstance justifying life imprisonment without parole, the State charged Hunters murder.
At trial, evidence was presented that: (1) the bullets and fragments were
consistent with the .38 caliber revolver, and that the 9mm shell casing was
fired from the 9mm han
dgun; (2) Defendant was identified as the person seen
leaving the barbershop; (3) Defendant was seen shooting Young in front of the
barbershop; and (4) the cause of death established for both Young and Hunter
was gunshot wounds.
A jury convicted Defendant of both counts of Murder. During the sentencing
phase, the jury recommended a sentence of life imprisonment without parole. The
trial court se
ntenced Defendant to two concurrent terms of life imprisonment without parole.
The original sentencing order read:
Arguments on Motion of Elkins, as to Count III to overturn and dismiss,
is denied. State presents evidence before sentencing. Defendant makes unsworn statement.
The jury having found you Guilty in Count I of Murder, the
Court accepts their recommendation and sentences you to Life Imprisonment Wit
As to Count II, the jury having found you Guilty of Murder, the
court accepts their recommendation and you are sentenced to Life Imprisonment Without Parole.
Aggravating circumstances are stated on the record. Sentences are to run
(App. at 8). The trial court had made the following oral statements at the conclusion of the sentencing hearing:
The jury having found you guilty in Count I of Murder of Charles
Young, Jr., the court accepts the recommendation of the jury and sentences you
to life imprisonment without parole, the aggravating factors being for both counts the
same. I will state them after I sentence you for Count II.
In Count II the jury having found you guilty of the offense
of Murder of Robert Hunter, the court will accept the recommendation of the
jury and sentence you to life imprisonment without parole. Those sentences will
be concurrent. The court figures, the court states as aggravating circumstances multiple
murders, your long and extensive criminal record, the fact that you were on
bond at the time of this offense from Marion County which you have
since been convicted of. Further, the court can draw inferences from circumstances
and circumstantial evidence in this cause in that Robert Hunter was killed by
a shot to the head. Therefore, the court concludes as an aggravating
factor that that was an execution. Judgment on said findings. Commitment
(Tr. at 415.)
On appeal of Defendants first sentence, we found several errors in the sentencing order and remanded by order for resentencing. We noted that the sentencing order failed to satisfy the heightened sentencing standards for life imprisonment without parole as set out in Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995), after remand, 659 N.E.2d 480 (Ind. 1995), rehg denied, cert. denied, 519 U.S. 933 (1996). In addition, we found that the trial judge improperly stated and considered aggravating circumstances contained in the general felony statute, Ind. Code § 35-38-1-7.1, rather than properly limiting its consideration to only those factors listed in Ind. Code § 35-50-2-9(b). See Pope v. State, 737 N.E.2d 374, 382-83 (Ind. 2000); Bivins v. State, 642 N.E.2d 928, 953-57 (Ind. 1994), cert. denied, 516 U.S. 1077 (1996).
On remand, the trial court again sentenced Defendant to two concurrent life-without -parole
terms, with the following sentencing order:
The Jury having found the Defendant, Terry Brown, Guilty of the offense of Murder of Charles Young, Jr. in Count I, and further, the defendant having been found Guilty in Count II of the Murder of Robert Hunter, IT IS THE SENTENCE OF THIS COURT, that the Defendant is sentenced to Life Imprisonment Without Parole, as to each count, and said counts are to be served concurrently.
The Court states as the aggravating circumstance as to each count being the
Defendant has been convicted of another murder. The Court finds no mitigating
circumstances. COMMITMENT IS ORDERED.
(Supp. App. at 93.)
Bostick v. State, 773 N.E.2d 266, 273-74 (Ind. 2002), rehg denied, we
held that defendant's life-without-parole sentence had been imposed in violation of the requirements
of Ring and Apprendi and remand for resentencing. However, we find no
violation of Ring or Apprendi in this case. In Bostick, the jury
failed to make any recommendation as to sentence. In contrast, in this
case, the jury unanimously recommended that Defendant be sentenced to life without parole.
We hold that, implicit in the jury's recommendation as to sentence is
the jury's finding beyond a reasonable doubt that the charged aggravating circumstance exists.
We so hold because the jury was instructed that before it could
recommend that a death sentence be imposed, the jury must find the existence
of the charged aggravating circumstance beyond a reasonable doubt and that the aggravating
circumstance outweighed the mitigating circumstances. Therefore, the jury necessarily determined the fact
of the aggravating circumstance beyond a reasonable doubt. Overstreet v. State, No.
41S00-9804-DP-217, 2003 WL 463094, at *16 (Ind. Feb. 24, 2003); Wrinkles v. State,
776 N.E.2d 905, 907-08 (Ind. 2002). Furthermore, the aggravating circumstance that made
Defendant eligible for a sentence of life without parole was that he had
committed multiple murders.
See Ind. Code §
35-50-2-9(b)(8). The jury's verdict
in the guilt phase, finding Defendant guilty of the two murders, necessarily means
that the jury found, beyond a reasonable doubt, that Defendant had committed more
than one murder. Wrinkles, 776 N.E.2d at 907-08.
Taken together, neither the revised written sentencing order nor the verbal statements made
at the sentencing hearing satisfy the legal requirements needed to impose a life-without-parole
When imposing a sentence of life without parole, the same heightened standards used in death penalty cases apply. Holsinger v. State, 750 N.E.2d 354, 362 (Ind. 2001); Pope v. State, 737 N.E.2d 374, 382 (Ind. 2000), rehg denied; Nicholson v. State, 734 N.E.2d 1047, 1048 (Ind. 2000), rehg denied; Rawley v. State, 724 N.E.2d 1087, 1091 (Ind. 2000); Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998) (The statute provides that life without parole is imposed under the same standards and is subject to the same requirements.), after remand, 722 N.E.2d 339 (2000); see also Ind. Code § 35-50-2-9. Because a sentence of life in prison without parole is imposed under the same standards as the death penalty, we require the same specificity from a trial court sentencing a defendant to life in prison without parole as we would a court sentencing a person to death. Pope, 737 N.E.2d at 382; Nicholson, 734 N.E.2d at 1048; Rawley, 724 N.E.2d at 1091; Ajabu, 693 N.E.2d at 936. Neither Ring and Apprendi nor recent statutory changes See footnote lessen these requirements.
Our death penalty statute guides our review by providing standards for governing the trial court's imposition of life imprisonment sentences. Following the completion of the guilt-determination phase of the trial and the rendering of the jury's verdict, the trial court reconvenes for the penalty phase. Before life imprisonment can be imposed, our statute requires the State to prove beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1) through (b)(16) of the statute. See Ind. Code § 35-50-2-9 (1998); see also Bivins, 642 N.E.2d at 955-56. As discussed at several points in this opinion, the State supported its request for life imprisonment with one alleged aggravating circumstance: Defendant committed multiple murders. See Ind. Code § 35-50-2-9(b)(8) (1998).
After deliberations, the jury in the present case recommended life imprisonment without parole.
Once the jury has made its recommendation, the jury is dismissed, and the
trial court has the duty of making the final sentencing determination at the
Applicable law imposes several requirements on the trial court in making its sentencing
determination. First, the trial court must find that the State has proven
beyond a reasonable doubt that at least one of the aggravating circumstances listed
in the death penalty statute exists. See Ind. Code § 35-50-2-9(k)(1) (1998).
Second, the trial court must find that any mitigating circumstances that exist
are outweighed by the aggravating circumstance or circumstances. See id. § 35-50-2-9(k)(2).
Third, before making the final determination of the sentence, the trial court
must consider the jury's recommendation. See id. § 35-50-2-9(e). The trial
court must make a record of its reasons for selecting the sentence that
it imposes. See id. § 35-38-1-3.
The above statutory provisions make clear that the sentencing court has a separate
and independent role in assessing and weighing the aggravating and mitigating circumstances and
in making the final determination whether to impose a particular sentence. Harrison
v. State, 644 N.E.2d at 1261 (citing Benirschke v. State, 577 N.E.2d 576,
579 (Ind. 1991), rehg denied 582 N.E.2d 355 (Ind. 1991), cert. denied, 505
U.S. 1224 (1992)). In arriving at its own separate determination as to
whether life without parole is an appropriate sentence, the sentencing court is to
point out its employment of the process in specific and clear findings.
Id. at 1261-62.
In Harrison, we established the following steps:
The trial courts statement of reasons (i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence, and (iv) must set forth the trial courts personal conclusion that the sentence is appropriate punishment for this offender and this crime.
Id. at 1262 (citations omitted). We require such specificity in capital and life-without-parole sentencing orders to insure the trial court considered only proper matter when imposing a life sentence, thus safeguarding against sentences that are arbitrary or capricious, and so as to enable appellate courts to determine the reasonableness of the sentence imposed. Id.
We find that the amended sentencing order, as outlined above, does not comply with these requirements in the following respects. First, the order does not clearly establish that the trial court found that the State proved the existence of at least one aggravating circumstance beyond a reasonable doubt. Second, the order does not set forth sufficient facts and reasons that lead the court to find the particular aggravating and mitigating circumstances. Third, there is nothing in the revised sentencing order that indicates that the trial court considered the jurys recommendation, or even what that recommendation was. See footnote Fourth, the order does not contain the necessary personal conclusion of the trial court that life without parole is the appropriate punishment for this offender and this crime; rather, the order merely indicates the presence of an aggravating circumstance while finding no mitigating circumstances. See footnote In addition, the trial court erroneously imposed two life-without-parole-sentences, though the State had only charged one such count for sentence enhancement.
Without a trial court sentencing order that meets the requirements of the law,
we are unwilling to affirm its sentence of life without parole. Our
options are: (1) remand the ma
tter to the trial court for clarification
or a new sentencing determination; (2) affirm the sentence if the error is
harmless; or (3) independently reweigh the proper aggravating and mitigating circumstances. Bivins,
642 N.E.2d at 957. Since we have already remanded for a revised
sentencing order once, we elect to make an independent evaluation of the aggravating
and mitigating circumstances.
In the absence of a trial court sentencing order meeting the requirements of
Harrison in general and failing to articulate any evaluation and balancing of aggravating
and mitigating circumstances, we vacate Defendants life-without-parole sentences and impose instead a term
of years for Defendants Murder convictions.
The presumptive sentence for Murder is fifty-five years, with a possible enhancement of
up to ten years. Ind. Code § 35-50-2-3(a) (1998).
Unlike sentencing under the death penalty and life without parole statute, the trial
court is not limited to considering aggravating circumstances specified in the statute when
imposing a term-of-years sentence. As such, we here consider the additional aggravating
rcumstances identified by the trial court in its oral statements at the time
of sentencing, which are outlined above in the Background section. These include:
commission of multiple murders; Defendants extensive criminal record; that Defendant was on
bond from Marion County at the time of the offenses outlined in this
case and has since been convicted of the Marion County offense; and the
execution-style nature of Robert Hunters gunshot wound to the head.
The trial court found no mitigating circumstances. We accept the trial courts
findings regarding the lack of mitigating circumstances.
We conclude that two sentences of fifty-five year terms are warranted. In addition, we find that the severity of the aggravating circumstances, combined with the a bsence of mitigating factors, warrant the two terms being served consecutively. See Ind. Code § 35-38-1-7.1(b).
Given these findings, Defendants sentence for two terms of life imprisonment wit
is hereby vacated and replaced with two consecutive 55-year sentences.