Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Rosemary L. Borek
Deputy Attorney General
Indianapolis, IN

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

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)    Supreme Court No.
)    48S00-9906-CR-363
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    On appeal, we found the sentencing order improper in three respects. First, we found that the “trial court inappropriately applied the first aggravating circumstance.” Id. at 700. Second, we found the third aggravating circumstance—Defendant’s involvement with cocaine—to be inappropriate in this case. Id. Finally, we found that the trial court erroneously failed to consider Defendant’s proffered mitigation evidence. Id. Because the trial court incorrectly sentenced Defendant, we remanded the case to the trial court for a new sentencing order. Id.

    On remand, the trial court did not alter the original sentence. It did issue a new se ntencing order, from which Defendant appeals, arguing that it suffers from the same defects as the original order.

Indiana law requires that the trial court take the following steps during sentencing: (1) identify all significant mitigating and aggravating circumstances; (2) specify facts and reasons which lead the court to find the existence of each such circumstance; and (3) demonstrate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. See Morgan, 675 N.E.2d at 1073; Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind. 1987).

The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. See Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997). Indiana law, however, mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating circumstances that are clearly supported by the record may imply that the trial court failed to properly consider them. See id.

We also held that the trial court improperly considered Defendant’s prior cocaine i nvolvement. See id. At the sentencing hearing, the State presented evidence of an arrest for cocaine use while Defendant was in the military. See id. The basis for this aggravating circumstance was a printout from the National Crime Information Center. See id. at 700 n.7. There was no evidence of a conviction, and Defendant testified that he was neither charged nor disciplined because the cocaine was found in a desk that he shared with another soldier. See id. We explained that the court could not consider the cocaine arrest as criminal conduct:
To the extent that the trial court viewed the prior involvement with cocaine as evidence of criminal history, it was improperly considered under Indiana Code section 35-38-1-7.1(b)(2) (1993). A single arrest does not establish a history of criminal conduct. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.1991). Nonetheless, a prior arrest may be considered under Indiana Code section 35-38-1-7.1(d) (1993) because such a record ‘reveal[s] to the court that subsequent antisocial behavior on the part of the defendant has not been deterred even after having been subject to the police authority of the State.’ Tunstill, 568 N.E.2d at 545. Here, the trial court did not demonstrate that it considered ‘prior involvement with cocaine’ to be evidence that defendant has not been deterred from antisocial behavior. In fact, the trial court did not specify any particular manner in which it considered this evidence beyond a mere recitation of the facts. Therefore, the trial court erroneously cited to defendant’s prior involvement with cocaine as an aggravating factor in this case.

See id. (quotations in original).
    

The new sentencing order briefly addressed some of Defendant’s mitigation claims. It stated:
[The witnesses for Defendant] generally testified that there were no problems with Defendant when he was growing up but that after his father passed and he was divorced from his ex-wife that he no longer was a leader, became a follower and an introvert. … The experience that [Defendant] had in those regards are not mitigating factors and do not lessen the severity of this offense.

But the order fails to address his claims of a lack of significant criminal history and remorse.

The trial court also failed to follow our direction regarding the cocaine arrest. Instead, the court said, “The fact that the defendant apparently began using cocaine in the military is an extreme aggravating circumstance … because this case was in fact a conspiracy to … perpetuate the criminal behavior or illegal drug consumption with the defendant and his co-conspirators.”

    We explicitly stated in Sherwood that Defendant’s cocaine arrest could only be considered to the extent that his prior involvement with law enforcement did not deter further criminal activity. 702 N.E.2d at 700. We also clearly explained that a single arrest does not establish a history of criminal conduct. Id. Despite this, the trial court again found Defendant’s cocaine arrest as criminal conduct and found it particularly aggravating because the crime he was charged with was a continuation of that criminal conduct.

The only mitigating factor that we find to be significant is Defendant’s lack of a si gnificant criminal record prior to this crime. We find that this is a mitigating circumstance in the medium range. See Baird v. State, 604 N.E.2d 1170, 1182 (Ind. 1992) (weighing lack of criminal history as a mitigating circumstance in the medium range), cert denied, 510 U.S. 893 (1993). We do not find Defendant’s remorse to be out of the ordinary and therefore do not give it any mitigating weight. See Evans v. State, 727 N.E.2d 1072, 1083 (Ind. 2000) (“It is within the sentencing court’s discretion to determine whether remorse should be considered as a ‘significant’ mitigating factor.”) As noted in our earlier opinion, we agree with the trial court’s finding that the heinousness of the crime constitutes a valid aggravating circumstance.

Weighing the aggravating and mitigating circumstance, we find them in approximate balance and conclude that concurrent presumptive sentences are therefore appropriate.