ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Karen M. Freeman-Wilson
Marion County Public Attorney General of Indiana
Indianapolis, Indiana Janet Brown Mallett
Deputy Attorney General
SUPREME COURT OF INDIANA
JAMES GAMES, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9908-CR-447 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
March 20, 2001
Appellant James Games spent a fair amount of time on Indianas death row
but eventually won a new sentencing hearing. In lieu of further litigation,
Games and the State crafted a plea bargain under which Games agreed to
be sentenced for murder, robbery, and conspiracy to commit robbery. The Marion
County Prosecutor dropped his request for the death penalty. After a sentencing
hearing, the trial court imposed sentences lasting 110 years.
Games says double jeopardy prohibits his sentence. We hold he gave up
such claims when he pled guilty.
Games petitioned for post-conviction relief. The post-conviction court affirmed the convictions but
granted re-sentencing. On appeal, we affirmed, except for ordering the conviction for
conspiracy to commit battery vacated on double jeopardy grounds. Games v. State,
684 N.E.2d 466 (Ind. 1997) (Games II). As to the murder and
robbery counts, we found no double jeopardy violation, analyzing the question under Blockburger
v. United States, 284 U.S. 299 (1932). Games II, 684 N.E.2d at
After remand for re-sentencing, Games negotiated a plea agreement:
c.)In consideration for the State of Indiana foregoing its request for the death penalty, the defendant agrees that the full range of sentences provided by statute on each count of conviction is now available for consideration for possible sentencing purposes. Specifically the defendant may be sentenced up to eight (8) years on Counts I and IV (which merge into one sentence pursuant to the holding in [Games II]; the defendant may be sentenced from thirty (30) to sixty (60) years on Count II; and he may be sentenced from twenty (20) to fifty (50) years on Count III pursuant to the holding in [Games II], supra, which states that separate sentences on Counts II and III herein do not constitute double jeopardy.
(R. at 122.) In short, Games bargained for a sentence between sixty
and 118 years in order to avoid the death penalty. The trial
court eventually imposed the maximum number of years on each count finding that
the aggravating factors outweighed the mitigating circumstances. It therefore ordered that the
murder and robbery sentences be served consecutively, concurrent with the conspiracy sentence.
Games now appeals his sentence.
Defendants who plead guilty to achieve favorable outcomes in the process of bargaining
give up a plethora of substantive claims and procedural rights. Games has
waived his claim of double jeopardy.
On June 11 while the sentence was still under advisement, the prosecution filed
a motion to reopen presentation of sentencing evidence in order to tender Games
DOC record. This was allowed over Games objection, though the trial court
offered Games the opportunity for additional time to respond.
Games argues at some length that Donnellys testimony did not open the door
so as to warrant a further presentation of evidence by the State.
(Appellants Br. at 32-37.) A trial court has considerable latitude to fashion
the order of things in a sentencing proceeding. Games raised the issue
of his prison conduct, and the court had the discretion to afford the
State a chance to provide further evidence about that topic.
Games concedes that his prison conduct record was relevant to the sentencing hearing,
(Appellants Br. at 32), but says the court afforded it undue weight in
light of the fact that the records were hearsay, (
Id. at 41-44).
The records were brought in under the business records exception to the
hearsay rule, Ind. Evidence R. 803(6),
See footnote and in any event a trial court
may consider hearsay in a sentencing proceeding.
Lasley v. State, 510 N.E.2d
1340 (Ind. 1987). The trial court gave Games the opportunity to contest
the accuracy of these records, but he has not demonstrated any particular errors
in them, either at trial or on appeal. Instead, Games argues generically
that they may not be reliable. This is not enough.
The trial judges conclusion that the aggravating circumstances were weightier and warranted enhanced
and consecutive sentences was an appropriate exercise of discretion. See Sims v. State,
585 N.E.2d 271, 272 (Ind. 1992) (weighing of aggravating and mitigating circumstances lies
within discretion of trial court).
Sullivan, Dickson, Boehm, and Rucker, JJ., concur.