ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH L. NAGY KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
NANDITA G. SHEPHERD
Deputy Attorney General
SUPREME COURT OF INDIANA
JEREMY WAYNE SMITH, )
) Supreme Court Cause Number
v. ) 17S00-0009-CR-551
STATE OF INDIANA, )
APPEAL FROM THE DEKALB CIRCUIT COURT
The Honorable Paul R. Cherry, Judge
Cause Nos. 17C01-0003-CF-005
ON DIRECT APPEAL
June 28, 2002
Jeremy Smith pleaded guilty but mentally ill to murder and guilty to arson
related to the murder. In unrelated matters, he pleaded guilty to burglary,
theft, two counts of harassment, and failure to register as a sex offender
with local law enforcement. The trial court imposed the maximum sentence for
each offense and ran them consecutively for a total term of one hundred
eleven years and three hundred sixty days. In this direct appeal, Smith
challenges his sentence contending the trial court: (1) did not explain its
reasons for imposing consecutive sentences; (2) cited an erroneous aggravating factor; and (3)
failed to consider his mental illness as a mitigating factor. He also
complains the trial court was biased.
We affirm the trial courts judgment but remand for a new sentencing order
on the issue of Smiths mental illness as a mitigating factor.
Although they were not acquainted, Smith and Shallon Bush lived in the same
apartment complex in Auburn, Indiana. In the early morning hours of July
19, 1999, Smith walked to Bushs apartment where she was living with her
three-year-old son. Smith opened the door with a key he had stolen
from the apartment managers office, walked into Bushs bedroom where she was sleeping,
woke her, and strangled her to death. To conceal the crime, Smith
poured vodka over her body and started a fire.
Picking a name at random from a telephone directory, Smith called Meghann McAfee
during the day on October 4, 1999, and left an obscene and threatening
message on her answering machine. Later that evening, he broke into McAfees
home and removed several items of personal property. A few months later,
in February 2000, Smith again called McAfee and left another message on the
answering machine similar in content to the previous one.
Smith was eventually arrested and charged with murder and arson as a Class
A felony in connection with Bushs death; and burglary as a Class B
felony, theft as a Class D felony, and two counts of harassment as
Class B misdemeanors in connection with his actions concerning McAfee. He also
was charged with failure to register as a Class D felony.
See footnote Smith
pleaded guilty to all offenses as charged. At the time of sentencing,
the trial court identified several aggravating factors, some of which were offense specific.
With respect to the murder, the trial court noted the nature and
circumstances of the crime: it occurred in the victims home, Smiths size
and weight advantage, the crime was committed with the use of a stolen
key which demonstrated planning, Smiths lack of remorse, Smiths indications that he would
kill again, and the impact of the crime on the victims three-year-old son.
Concerning the burglary and theft, the trial court found they were planned
and noted the traumatizing effect the threatening telephone calls had on the victim.
The trial court also found as aggravating factors Smiths prior criminal history,
his violation of probation, and his need for correctional or rehabilitative treatment that
would best be provided by a penal institution. Finding no mitigating factors,
the trial court sentenced Smith to the maximum term for each offense:
sixty-five years for murder, twenty years for arson, twenty years for burglary, three
years for theft, and one hundred eighty days for each count of harassment.
The trial court ordered the sentences to run consecutively for a total
term of one hundred eleven years and three hundred sixty days. This
Conceding the trial court explained its reasons for imposing enhanced sentences, Smith complains
the trial court erred in failing to explain also its reasons for imposing
consecutive sentences. This argument fails. A trial court is not obligated
to identify the aggravators that support consecutive sentences separately from the factors that
support the sentence enhancement. Blanche v. State, 690 N.E.2d 709, 716 (Ind.
1998). Rather, the same factors used to enhance a sentence may also
be used to justify a consecutive sentence. Miller v. State, 716 N.E.2d
367, 371 (Ind. 1999). In this case, the trial court relied on
the same factors declaring every one of those aggravating circumstances is also a
basis for me to impose consecutive sentences. R. at 547. We
find no error on this issue.
Smith next contends the trial court erred in citing as an aggravating factor
the impact that his crime imposed on the murder victims three-year-old son.
We must agree. As this Court has previously noted: [w]e appreciate the
terrible loss of a loved one. But because such impact on family
members accompanies almost every murder, we believe it is encompassed within the range
of impact which the presumptive sentence is designed to punish. Bacher v.
State, 686 N.E.2d 791, 801 (Ind. 1997). Although the impact on others
may qualify as an aggravator in certain cases, the defendants actions must have
had an impact on . . . other persons of a destructive nature
that is not normally associated with the commission of the offense in question
and this impact must be foreseeable to the defendant. Id. (quoting Washington
v. Johnson, 873 P.2d 514, 525 (Wash. 1994)). In this case, the
trial court did not articulate how the impact on Bushs child was of
the type so distinct that it raised to the level of an aggravating
factor. Citing this impact evidence as an aggravating factor was therefore improper.
However, when the trial court improperly applies an aggravator, but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld. Gibson v. State,
702 N.E.2d 707, 710 (Ind. 1998). Here, the trial court cited additional
aggravating circumstances, which Smith does not challenge. Subject to our discussion infra
Section III, the additional aggravators are sufficient to support Smiths enhanced sentences.
In a related argument, Smith contends that in imposing sentence, the trial court
erroneously considered impact statements from a number of Bushs relatives and friends.
The record shows the trial court received numerous letters from Bushs friends and
family. R. at 102-15, 119-41, 147-201. Some expressed grief and loss,
while others recommended maximum punishment. Id. At the sentencing hearing, several
of Bushs relatives testified about the psychological and emotional effects the murder had
on their lives. Our discussion of Bacher, supra, is equally applicable here.
In any event, the record shows the trial court did not cite
or refer to the testimony of Bushs relatives as an aggravating factor.
Smiths argument on this point fails.
Smith also complains the trial court failed to consider his mental illness as
a mitigating factor. The facts are these. While this case was
pending, counsel raised the issue of Smiths competency to stand trial. As
a result, the trial court appointed Dr. Domingo Cruz-Diaz and Dr. Mark Souder
to examine Smith for that purpose. Both submitted written reports to the
trial court concluding that Smith was competent to stand trial. However, Dr.
Souder opined further that Smith suffered from paranoid schizophrenia, depression, antisocial personality disorder,
and attention and impulse control problems. R. at 230. At the
change of plea hearing, the trial court accepted the reports as evidence to
support Smiths plea of guilty but mentally ill to murder. R. at
440-41. At sentencing, no evidence of Smiths mental illness was introduced.
However, referring to a very detailed and thorough pre-sentence investigation report, the trial
court discussed Smiths history of mental illness. The report included not only
the written evaluations of the court-appointed psychiatrists but also reports from three different
facilities where Smith had been treated at various times since the age of
eighteen for a variety of mental health problems. R. at 262-66.
While imposing sentence, the trial court declared:
I have, in good faith, reviewed the mitigating factors. Theyre set forth
in the Indiana statute. Ive reviewed them specifically. I have thought
in the quiet times when I have studied the report and thought about
this case and made notes and considered what would be just and fair[;]
what are the mitigating circumstances present in Mr. Smiths favor. I find
there are none.
R. at 547.IV.
It is true that the trial court is not required to find the
presence of mitigating factors; and if the trial court does not find the
existence of a mitigating factor after it has been argued by counsel, then
the trial court is not obligated to explain why it has found that
the factor does not exist. Fugate v. State, 608 N.E.2d 1370, 1374
(Ind. 1993). It is also true that the trial court is not
required to weigh or credit the mitigating evidence the way a defendant suggests
it should be credited or weighed. Id. Further, a guilty but
mentally ill defendant is not automatically entitled to any particular credit or deduction
from his otherwise aggravated sentence[.] Archer v. State, 689 N.E.2d 678, 684
(Ind. 1997). Nonetheless, we have held that in sentencing a guilty but
mentally ill defendant, trial courts should at a minimum carefully consider on the
record what mitigating weight, if any, to accord to any evidence of mental
illness, even though there is no obligation to give the evidence the same
weight the defendant does. Weeks v. State, 697 N.E.2d 28, 30 (Ind.
1998). As we have explained, there are several factors that bear on
this determination, including: (1) the extent of the defendants inability to control
his or her behavior due to the disorder or impairment; (2) overall limitations
on functioning; (3) the duration of the mental illness; and (4) the extent
of any nexus between the disorder or impairment and the commission of the
crime. Id.; Archer, 689 N.E.2d at 685. The factors are not
exclusive but are among those the trial court must consider in determining what,
if any, mitigating weight to give to any evidence of a defendants mental
illness after a finding or plea of guilty but mentally ill. Here,
implicit in the trial courts sentencing order is a finding that Smiths mental
illness is entitled no mitigating weight. This finding is not necessarily improper.
However, because there is no indication the trial court reached that conclusion
after applying any of the criteria set forth in Weeks and Archer, we
must remand this cause for a new sentencing order. A new sentencing
hearing, however, is unnecessary. See OConnell v. State, 742 N.E.2d 943, 952-53
(Ind. 2001) (setting forth the options a trial court may employ when a
cause is remanded for a new sentencing order).
For his final allegation of error, Smith contends that statements the trial court
made at the time of sentencing demonstrate his bias and prejudice. Specifically,
Smith points to remarks in which the trial court referred to facts allegedly
not supported by the record; described the murder and arson as the act
of an evil, mean, depraved, perverted animal, R. at 544; and made a
Biblical reference that included the comment, May the soul of Shallon Bush now
rest in peace[,] R. at 551. Smith urges that we remand this
cause so that a different judge can sentence him.
Merely asserting bias and prejudice does not make it so. The law
presumes that a judge is unbiased and unprejudiced. Lee v. State, 735
N.E.2d 1169, 1172 (Ind. 2000). And to rebut that presumption, a defendant
must establish from the judges conduct actual bias or prejudice that places the
defendant in jeopardy. Harvey v. State, 751 N.E.2d 254, 259 (Ind. Ct.
App. 2001); Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993).
Such bias and prejudice exists only where there is an undisputed claim
or where the judge expressed an opinion of the controversy over which the
judge was presiding. Resnover v. State, 507 N.E.2d 1382, 1391 (Ind. 1987);
Harvey, 751 N.E.2d at 259; Cook, 612 N.E.2d at 1088. The imposition
of the maximum sentence does not support a claim of bias. Radcliff
v. State, 579 N.E.2d 71, 73 (Ind. 1991). In this case, Smith
has not carried his burden of proof. Each of the aggravating circumstances
cited by the trial court was fully supported by the record. As
for the Biblical reference and the comment on the heinous nature of the
murder, we are not persuaded they represent an expression of the trial courts
opinion on the merits of Smiths sentence. Smith is not entitled to
relief on this claim.
This cause is remanded for a new sentencing order consistent with this opinion.
In all other respects, we affirm the judgment of the trial court.
DICKSON and SULLIVAN, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.
BOEHM, J., dissents with separate opinion in which SHEPARD, C.J., joins.
SHEPARD, C.J., dissenting.
Smith has argued that a number of points reflecting on his mental health
should have been given mitigating weight by the trial judge. Some of
these proffers, like antisocial personality disorder and impulse control problems, are characteristics so
commonly associated with violent crimes that I am not surprised that Judge Cherry
did not find them mitigating.
Others, like paranoid schizophrenia, stand on firmer ground and probably should have been
given some weight.
I vote to affirm, however, because there are some fifteen aggravating circumstances found
by the trial court in a lengthy and precise sentencing order and not
challenged on appeal. These include a list of prior felonies both here
and in Ohio, committing the current offenses while on probation, failure to respond
to numerous past efforts at counseling and treatment programs, no remorse whatsoever, selection
of a victim a foot shorter and sixty pounds lighter, and a long
campaign designed to terrify the victim before the crime, to name a few.
The courts sentencing order runs to nine pages single-spaced in the appellants brief
on appeal. It is both thoughtful and meticulous, and it persuades me
that the sentence is appropriate.
I would affirm rather than remand.
BOEHM, Justice, dissenting.
In Weeks v. State, 697 N.E.2d 28 (Ind. 1998), we held that a
finding by a jury of guilty but mentally ill required the sentencing judge
to articulate the effect of that finding on the sentence. In my
view, this requires a determination whether the defendants mental illness was a mitigating
factor and, if so, what weight it deserves. The factors identified in
Archer v. State, 689 N.E.2d 678 (Ind. 1997), may be among the relevant
considerations in those determinations, but these will undoubtedly vary from case to case.
Here we have a plea of guilty but mentally ill, not a finding
by the trier of fact. Although the trial court dismissed Smiths mental
illness with minimal discussion and a finding of no mitigating circumstances, I would
nevertheless affirm the sentence because I believe the evidence of mental illness, which
is solely documentary, demonstrates that this case is far removed from the facts
of Weeks, where the defendants bizarre behavior over a long period of time
was obvious, and the apparently motiveless crime undoubtedly supported the jurys finding of
guilty but mentally ill. In addition, the detailed severely aggravating facts identified
by the trial court and cited by the Chief Justice in my view
demonstrate that this sentence should be affirmed for the reasons the Chief Justice
Finally, I do not agree with the majority that the impact on the
three-year-old son was an improper consideration in sentencing. Smith lived three doors
from Ms. Bush. Smith was thus on fair notice that he was
killing the mother of a three year old. Not every murder deprives
a child of its mother, and particularly not at such a tender age.
This murder thus was, in terminology sometimes adopted by this court, worse
than many, and I believe the trial court properly took that into account.
SHEPARD, C.J., concurs.
Because of a 1997 conviction for child molesting, Smith qualified as
a sex and violent offender. Ind. Code § 5-2-12-4(a). A person
obtaining that status is required to register with local law enforcement authorities.
I.C. § 5-2-12-5. The knowing or intentional failure to do so is
a criminal offense. I.C. § 5-2-12-9.