ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony L. Kraus Jeffrey A. Modisett
Likes & Kraus Attorney General of Indiana
Sarah E. Scherrer
Deputy Attorney General
INDIANA SUPREME COURT
WILLIAM A. WALTER, )
v. ) 92S00-9809-CR-502
STATE OF INDIANA, )
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9708-CF-124
On Direct Appeal
April 18, 2000
The defendant-appellant, William A. Walter, pled guilty to two counts of murder
See footnote for
the August 19, 1997, killings of his wife, Melissa Walter, and his former
aunt, Tammy Walter. The trial court sentenced the defendant to consecutive sixty-year
sentences on each count. In this direct appeal, the defendant contends that
the trial court improperly considered aggravating and mitigating circumstances and that the sentence
is manifestly unreasonable. We affirm the trial court.
Aggravating and Mitigating Circumstances
The defendant contends that the trial court, in deciding to enhance his sentences
and ordering them to run consecutively, considered invalid or unsupported aggravating circumstances and
ignored mitigating circumstances supported by the record. The defendant alleges that, of
the ten aggravating circumstances found by the trial court, six were improperly considered.
He further argues that, in addition to the five mitigating circumstances listed
in the sentencing statement, the trial court failed to properly consider several others
supported by the evidence.
The trial court found the following ten aggravating circumstances: (1) the murder
of the first victim, Tammy Walter, was "vicious and brutal," record at 372,
and was caused by multiple stab wounds, including three significant wounds to the
neck, five significant wounds to the back, and several superficial wounds to the
arms and hands; (2) the murder of the second victim, Melissa Walter, "was
. . . vicious and brutal," record at 372, resulting from three significant
stab wounds to the chest, two to the abdomen, one to the back,
and multiple superficial wounds and abrasions; (3) each victim was defenseless; (4) three
innocent children lost their mother, Tammy Walter; (5) the defendant violated a position
of trust, killing his spouse and a former aunt with whom he had
lived while in high school; (6) although occurring in close proximity both in
time and place, the murders were separate and distinct acts of violence; (7)
for seven to ten days prior to the murder, the defendant kept Melissa
Walter under surveillance to the extent that she expressed fear for her life;
(8) significant victim impact evidence was presented; (9) the defendant was in need
of correctional or rehabilitative treatment that could best be provided by commitment to
a penal facility; and (10) the imposition of concurrent sentences would depreciate the
seriousness of the crimes. The trial court found the following mitigating circumstances:
(1) the defendant had no prior criminal record and no juvenile adjudications;
(2) he had a stable work history; (3) he admitted his guilt; (4)
he suffered a turbulent childhood and resulting personality disorders; and (5) he expressed
remorse for his crimes. The trial court found that the aggravating circumstances
outweighed the mitigating circumstances, enhanced each of the presumptive fifty-five-year sentences for the
two murder convictions by five years
See footnote for aggravating circumstances, and ordered the sentences
to be served consecutively.
Sentencing lies within the discretion of the trial court.
Battles v. State,
688 N.E.2d 1230, 1235 (Ind. 1997). We review sentencing decisions, including decisions
to enhance the presumptive sentence or to run sentences consecutively due to aggravating
circumstances, only for abuse of discretion. Trowbridge v. State, 717 N.E.2d 138,
149 (Ind. 1999). When a trial court imposes a sentence other than
the presumptive sentence or orders consecutive sentences, even though not required to do
so by statute, we will examine the record to ensure that the trial
court explained its reasons for selecting the sentence it imposed. Archer v.
State, 689 N.E.2d 678, 683 (Ind. 1997).
The defendant challenges six of the ten aggravating circumstances found by the trial
court. First, he claims that aggravating circumstances number 3 (each victim was
defenseless) and number 7 (the defendant kept Melissa Walter under surveillance and she
feared for her life) are unsupported by the evidence. The defendant bases
his claim upon his own version of the events, submitted as part of
the pre-sentence investigation report, including his claim that each of the women had
attacked him with a knife. Other evidence from the same pre-sentence report
and from the post-mortem reports, however, indicates that the defendant brutally inflicted multiple
severe knife wounds upon his female victims who were then unarmed and trying
See footnote Also, although the defendant reported to one psychologist that Melissa
initially had a knife and stabbed him, he told another that he cut
himself with the knife when he was struck by a truck while fleeing
police. This evidence supports the trial court's conclusion that the victims were
defenseless, but we note that much of this supporting evidence also supports the
aggravators found by the trial court relating to the viciousness and brutality of
The record also supports the trial court's finding that the defendant had kept
Melissa under surveillance. One witness told police investigators that approximately one week
before the murders the defendant followed Melissa, the witness, and other friends to
Fort Wayne and watched them while they were there. The witness also
reported that Melissa had told her at least three times: "I'll be
dead in a month and [the defendant] will have killed me." Record
at 180. The trial court's finding of this aggravator was supported by
The defendant next claims that the victim impact evidence, considerations which constitute
aggravating circumstances numbers 4 and 8, were not valid under
Bacher v. State,
686 N.E.2d 791, 801 (Ind. 1997). Because the State provides no contrary
authority or argument and does not dispute this claim, we consider it conceded.
The defendant next claims that the trial court failed to make a statement
explaining why the defendant needed correctional or rehabilitative treatment in a penal facility
for longer than the presumptive term, as required for aggravating circumstance number 9.
We agree that when a trial court uses such a finding, in
part, to justify an enhanced sentence, it should provide a specific statement as
to why the defendant needs treatment for a period of time longer than
the presumptive sentence. Berry v. State, 703 N.E.2d 154, 158 (Ind. 1998);
Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996). The record contains
no trial court explanation for using this aggravating circumstance.
The defendant also asserts that the trial court erred in ordering consecutive sentences
based in part on an aggravating circumstance that "concurrent sentences would depreciate the
seriousness of the two separate crimes of murder, which were committed." Record
at 372-73. We have held that it is not error to enhance
a sentence based upon an aggravating circumstance that a sentence less than the
enhanced term would depreciate the seriousness of the crime committed. Huffman v.
State, 717 N.E.2d 571, 577 (Ind. 1999); Ector v. State, 639 N.E.2d 1014,
1016 (Ind. 1994); Evans v. State, 497 N.E.2d 919, 923-24 (Ind. 1986).
This principle is distinguishable from Sherwood v. State, 702 N.E.2d 694 (Ind. 1998),
cited by the defendant, in which the trial court both imposed enhanced sentences
and ordered them served consecutively based in part upon its finding that the
imposition of a reduced sentence would depreciate the seriousness of the crime.
At the sentencing hearing in the present case, defense counsel argued that "it
all comes down to . . . whether . . . the sentences
imposed are concurrent or consecutive," record at 368, and urged that the mitigating
circumstances supported imposition of concurrent sentences. The trial court considered the "depreciate
the seriousness" factor in determining whether to impose concurrent or consecutive sentences, not
to evaluate whether to impose a reduced sentence. We decline to find
error in the application of this aggravator.
Excluding the challenged aggravating circumstances based on victim impact and the need for
penal facility correctional treatment, multiple aggravating circumstances remain. Even when a trial
court improperly applies an aggravator, a sentence enhancement may be upheld if other
valid aggravators exist. Garrett v. State, 714 N.E.2d 618, 623 (Ind.
1999). See also Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998)
(citing Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)). A single
aggravating circumstance may be sufficient to support an enhanced sentence. Garrett, 714
N.E.2d at 623; Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995).
The same factors may be used to enhance a presumptive sentence and to
justify consecutive sentences. Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
See also Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999); Reaves
v. State, 586 N.E.2d 847, 852 (Ind. 1992). We reject the defendant's
contention that his enhanced and consecutive sentences are not supported by aggravating circumstances
shown by the evidence.
The defendant also seeks relief from the enhanced and consecutive sentences on grounds
that the trial court failed to provide specific facts and reasons for its
findings of aggravating circumstances. We do not agree.
The trial court found the vicious and brutal nature of each of the
two murders to be aggravating circumstances. The manner in which a crime
is committed may serve as an aggravating circumstance. Taylor v. State, 695
N.E.2d 117, 120 (Ind. 1998); Concepcion v. State, 567 N.E.2d 784, 791 (Ind.
1991). See also Ind. Code § 35-38-1-7.1(a)(2) ("the [sentencing] court shall consider
. . . the nature and circumstances of the crime committed."). Here,
the trial court noted the vicious and brutal murder of the victims, chronicling
the number and locations of significant stab wounds inflicted upon each victim.
Likewise, the trial court adequately explained its finding that the defendant violated positions
of trust. The court noted that one victim was the defendant's spouse
and the other was a former aunt who had permitted him to live
in her home while he was in high school. This may be
considered as a valid aggravating circumstance. See, e.g., Franklin v. State, 715
N.E.2d 1237, 1242 (Ind. 1999) (the defendant was the victim's father); Wesby v.
State, 535 N.E.2d 133,137-38 (Ind. 1989) (the victim was the former girlfriend of
the defendant's father and had known the defendant since early childhood); Martin v.
State, 535 N.E.2d 493, 498 (Ind. 1989) (the defendant, who lived with the
victim's family, was babysitting for the child victim at the time of the
murder). Cf. Edgecomb v. State, 673 N.E.2d 1185,1198-99 (Ind. 1996) (the defendant's
relationship as victim's neighbor was not a position of trust for purposes of
finding an aggravating circumstance). The trial court also explained its consideration of
the defendant's surveillance of Melissa, noting the nature and duration of this activity.
We conclude that the trial court sufficiently identified specific facts to support
the aggravating circumstances found.
The defendant further contends that the trial court did not identify all the
significant mitigating circumstances proven by the evidence. Determining mitigating circumstances is within
the discretion of the trial court. Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997). When a defendant alleges that the trial court failed
to identify or find a mitigating circumstance, the defendant must establish that the
mitigating evidence is both significant and clearly supported by the record. Carter
v. State, 711 N.E.2d 835, 838 (Ind. 1999). The trial court is
not required to accept the defendant's contentions as to what constitutes a mitigating
circumstance. Legue, 688 N.E.2d at 411.
The defendant contends that the trial court failed to specifically address other psychological
evidence, the defendant's learning disabilities, the defendant's claims that he had read over
sixty books while incarcerated and helped other inmates work toward their GEDs, the
defendant's record of good behavior while incarcerated, the defendant's military experience,
See footnote or his
call to 911 after the murders,See footnote and that this failure implies that they
were overlooked. In support of his argument, the defendant points to
v. State, 702 N.E.2d 694 (Ind. 1998), and Scheckel v. State, 620 N.E.2d
681 (Ind. 1993). However, in each of those cases, despite mitigating evidence
in the record, the respective trial courts found no mitigating factors and addressed
none of the evidence presented. In contrast, here the trial court identified
and considered five mitigating factors: (1) the absence of prior criminal record;
(2) a stable work history; (3) his admission of guilt; (4) his turbulent
childhood and resulting personality disorders; and (5) his expressed remorse. A substantial
portion of the evidence the defendant identifies was implicitly acknowledged in the mitigators
enumerated by the trial court.
Our understanding of the trial court's reasons for its sentencing decision in this
case is informed by the court's remarks during the sentencing hearing. In
reviewing a sentencing decision in a non-capital case, we are not limited to
the written sentencing statement but may consider the trial court's comments in the
transcript of the sentencing proceedings. See Hill v. State, 499 N.E.2d 1103,1110-11
(Ind. 1986). At the sentencing hearing, the trial judge explained:
Mr. Walter, I probably heard several hundred cases of abuse of children, and
it sounds like, if what I've heard from you and your brother [is]
true, and I have no reason to believe it's not true, that you
suffered as abusive a childhood in your formative years as any young person
that I've had to deal with in the Whitley Circuit Court. I
feel sorry for you for that, I do. I genuinely do.
I, however, cannot ignore what you have done here, nor will I
ignore it or make, in any way make it less, diminish what you've
done based on your childhood. I can't do that.
Record at 371. We are satisfied that the trial court considered the
mitigating evidence presented. These remarks also demonstrate that the trial court evaluated
and balanced the aggravating and mitigating circumstances in determining the sentence. We
conclude that the trial court thoughtfully exercised its discretion in ordering that each
presumptive sentence be enhanced by five years and that the sentences be served
The defendant next claims that the sentence was manifestly unreasonable in light of
the aggravating and mitigating evidence. This Court has the constitutional authority to
review and revise sentences, see Ind. Const. Art. VII, § 4, and may
do so when the sentence is "manifestly unreasonable in light of the nature
of the offense and the character of the offender," Ind. Appellate Rule 17(B).
"This Court's review under Rule 17(B) is highly deferential to the trial
court: '[T]he issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.'" Echols v.
State, 722 N.E.2d 805, 809 (Ind. 2000) (quoting Bunch v. State, 697 N.E.2d
1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind.
We decline to find the sentence manifestly unreasonable in light of this offender
and these offenses.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J., concurs in
Ind. Code § 35-42-1-1.
The trial court did not impose the maximum ten-year enhancement authorized by
Ind. Code § 35-50-2-3(a).
When the trial court addressed the pre-sentence investigation report at the start
of the sentencing hearing, the defendant accepted the report as filed. He
made no objections nor suggested any corrections or clarifications to the factual matters
Although the defendant was discharged "under honorable conditions" from the military, the
record indicates that the discharge may have resulted from charges of wrongful possession
and use of a controlled substance. Record at 151,156.
Footnote: Although the defendant did place a call to 911 to report his
crime and eventually identified himself to the operator, he placed the call from
a pay phone after he had fled the scene of the crimes and
shortly before he pushed his car into a lake to hide it and
ran in front of a truck. The defendant denied that he was
trying to kill himself.