Attorney for Appellant
Attorneys for Appellee
Travis Jay Merlington, Pro Se Steve Carter
Attorney General of Indiana
Nicole M. Schuster
Deputy Attorney General
Merlington was arrested and charged with possession of methamphetamine in excess of three
grams with intent to deliver, a Class A felony.
See footnote The trial court
convicted Merlington and sentenced him to total executed time of 45 years, the
30-year presumptive se
ntence for a Class A felony enhanced by 15 years for
aggravating circumstances. The Court of Appeals affirmed the conviction and sentence in
an unpublished memorandum decision. Merlington sought and we granted transfer. Merlington
v. State, 812 N.E.2d 791, 2004 Ind. LEXIS 42 (Ind. Jan. 9, 2004).
The Legislature has prescribed standard or presumptive sentences for each crime, allowing the
sentencing court limited discretion to enhance a sentence to reflect aggravating circumstances or
reduce it to reflect mitigating circumstances. In this case, the applicable statute
reads, A person who commits a Class A felony shall be imprisoned for
a fixed term of thirty (30) years, with not more than twenty (20)
years added for aggravating circumstances or not more than ten (10) years subtracted
for mitigating circumstances . . . . Ind. Code § 35-50-2-4 (1998).
At Merlingtons sentencing hearing, the court identified two mitigating circumstances: (1) Merlington was
a young man20-years-oldat the time of the offense; and (2) Merlington had no
prior criminal history.
The trial court also found five aggravating circumstances: (1) the amount of drugs
involved was much more than the required amount for a Class A felony,
and the drugs were worth an extremely substantial amount; (2) there were other
drugs found in the car in which Merlington was riding, and marijuana was
found in the jacket he was wearing; (3) because Merlington did not use
the drugs, it was clear that he was selling them strictly for financial
gain, rather than for money to support a drug addiction; (4) Merlington gave
false testimony about his involvement with the methamphetamine, which indicated an unwillingness to
accept responsibility for his criminal conduct; and (5) by failing to appear for
the last day of trial, Merlington showed a lack of respect for the
court, the parties involved, and the criminal process in general. The trial
court also found that this fifth circumstance alone or taken in combination with
any other aggravating circumstances sufficiently justifies the imposition of an aggravated sentence.
Appellants App. at 110.
It is clear from the record that the trial court in this case
satisfied its obligation to explain its reasons for selecting the sentence it imposed.
Lander, 762 N.E.2d at 1215.
We need not engage in extended analysis on this point as the State
acknowledges that Merlington correctly argues that the trial court was wrong to utilize
these two circumstances as aggravating. Br. of Appellee at 16-17. The
Court of Appeals recognized the States concession and did not consider these two
aggravators in its analysis of Merlingtons sentence.
If one or more aggravating circumstances cited by the trial court are invalid,
the court on appeal must decide whether the remaining circumstance or circumstances are
sufficient to support the sentence imposed. Hollen v. State, 761 N.E.2d 398,
402 (Ind. 2002). Where we find an irregularity in a trial court's
sentencing decision, we have the option to remand to the trial court for
a clarification or new sentencing determination, to affirm the sentence if the error
is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at
the appellate level. Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind. 2001).
We elect appellate reweighing here. Ind. Const. art. VII, § 4.
Our jurisprudence indicates that the two mitigating circumstances hereyoung age and lack of
criminal historyare weighty. Loveless v. State, 642 N.E.2d 974, 976 (Ind. 1994)
(stating that age and lack of delinquent or criminal record deserve substantial mitigating
weight). They have also served as the basis for relief. See,
e.g., Baxter v. State, 727 N.E.2d 429, 436 (Ind. 2000) (lack of criminal
history); Trowbridge v. State, 717 N.E.2d 138, 150 (Ind. 1999) (age); Carter v.
State, 711 N.E.2d 835, 843 (Ind. 1999) (age and lack of criminal history);
Edgecomb v. State, 673 N.E.2d 1185, 1199 (Ind. 1996) (lack of criminal history).
To repeat, the valid aggravating circumstances utilized by the trial court were that
(1) other drugs were found in the car in which Merlington was riding,
and marijuana was found in the jacket he was wearing; (2) Merlington gave
a false testimony about his involvement with the methamphetamine, indicating an unwillingness to
accept responsibility for his criminal conduct; and (3) by failing to appear for
his last day of trial, Merlington showed a lack of respect for the
court, the parties involved, and the criminal process in general. We agree
with the trial court that each of these constitutes a valid aggravating circumstance,
but we are unable to conclude that their collective weight is greater than
the mitigating effect of Merlingtons young age and lack of criminal history.
We therefore conclude that the presumptive sentence of 30 years is the appropriate
sentence in light of the nature of this offense and the character of