Aggravators

Statutory aggravators: Text

• In determining what sentence to impose for a crime, the court may consider the following aggravating circumstances:

(1) The harm, injury, loss, or damage suffered by the victim of an offense was:

(A) significant; and

(B) greater than the elements necessary to prove the commission of the offense.

(2) The person has a history of criminal or delinquent behavior.

(3) The victim of the offense was less than twelve (12) years of age or at least sixty-five (65) years of age at the time the person committed the offense.

(4) The person:

(A) committed a crime of violence (IC 35-50-1-2); and

(B) knowingly committed the offense in the presence or within hearing of an individual who:

(i) was less than eighteen (18) years of age at the time the person committed the offense; and

(ii) is not the victim of the offense.

(5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.

(6) The person has recently violated the conditions of any probation, parole, pardon, community corrections placement, or pretrial release granted to the person.

(7) The victim of the offense was:

(A) a person with a disability (as defined in IC 27-7-6-12), and the defendant knew or should have known that the victim was a person with a disability; or

(B) mentally or physically infirm.

(8) The person was in a position having care, custody, or control of the victim of the offense.

(9) The injury to or death of the victim of the offense was the result of shaken baby syndrome (as defined in IC 16-41-40-2).

(10) The person threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.

(11) The person:

(A) committed trafficking with an inmate under IC 35-44.1-3-5; and

(B) is an employee of the penal facility.

IC 35-38-1-7.1(a)

Statutory aggravators: Harm, injury, loss, or damage suffered by the victim

• [T]he Indiana Code provides that a trial court may assign aggravating weight to the harm, injury, loss, or damage suffered by the victim of an offense if such harm was significant and greater than the elements necessary to prove the commission of the offense.

Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App. 2007), trans. denied(citing IC 35-38-1-7.1(a)(1))

McCoy v. State, 856 N.E.2d 1259, 1263 (Ind. Ct. App. 2006)(citing IC 35-38-1-7.1(a)(1))

See Paul v. State, 888 N.E.2d 818, 823 (Ind. Ct. App. 2008), trans. denied(quoting IC 35-38-1-7.1(a)(1))(“[T]hat the ‘harm, injury, loss, or damage suffered by the victim was significant, and greater than the elements necessary to prove the commission of the offense’ is a statutory aggravating factor.”)

Statutory aggravators: The person has a history of criminal or delinquent behavior

• [T]he fact that a defendant has “a history of criminal or delinquent behavior” is a proper, statutory aggravating factor.

Wells v. State, 904 N.E.2d 265, 273 (Ind. Ct. App. 2009), trans. denied(quoting IC 35-38-1-7.1(a)(2))

See Stokes v. State, 947 N.E.2d 1033, 1037 (Ind. Ct. App 2011), trans. denied(quoting IC 35-38-1-7.1(a)(2))(“Indiana law also explicitly authorizes consideration of one's ‘history of criminal or delinquent behavior’ as an aggravating circumstance in imposing a sentence.”)

Statutory aggravators: Age of the victim

• Indiana Code section 35-38-1-7.1(a)(3) states that the court may consider as an aggravating circumstance the fact that the victim is less than twelve years of age.

Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied

Statutory aggravators: In the presence or within hearing of certain individuals

• A trial court may consider the fact that the defendant committed a crime of violence—including rape—in the presence or within hearing of a child under the age of eighteen as an aggravating factor.

Abrajan v. State, 917 N.E.2d 709, 712 (Ind. Ct. App. 2009)(citing IC 35-38-1-7.1(a)(4)(B)(i))

See Garcia v. State, 936 N.E.2d 361, 365 (Ind. Ct. App. 2010), trans. denied(citing IC 35-38-1-7.1(a)(4))(“The record herein reveals that one of the instances of sex between [the defendant] and [the defendant’s] twelve-year-old victim took place in the presence of [the defendant’s] one-year-old nephew. That fact constitutes a proper statutory aggravator . . . .”)

• [I]t is well established that this aggravator “does not require that a child under eighteen actually see or hear the offense taking place . . . .”

Abrajan v. State, 917 N.E.2d 709, 712 (Ind. Ct. App. 2009)(quoting Firestone v. State, 838 N.E.2d 468, 474 (Ind. Ct. App. 2005))(alteration in the original)

See Firestone v. State, 838 N.E.2d 468, 474 (Ind. Ct. App. 2005)(“Indiana Code section 35-38-1-7.1(b)(14) [recodified without substantive changes at IC 35-38-1-7.1(a)(4)] does not require that a child under eighteen actually see or hear the offense taking place; the statute merely requires that in order to qualify as an aggravating circumstance the offense must be committed ‘in the presence or within hearing of a person who is less than eighteen (18) years of age who was not the victim of the offense.’”)

Statutory aggravators: Violation of a protective order, a workplace violence restraining order, or a no-contact order

• Indiana Code section 35-38-1-7.1(a)(5) permits the court to consider as an aggravator the defendant's violation of a no-contact order issued against the person.

Coy v. State, 999 N.E.2d 937, 947 (Ind. Ct. App. 2013)

Statutory aggravators: Violation of the conditions of any probation, parole, pardon, community corrections placement, or pretrial release

• [The defendant] does not challenge at least two of the trial court's aggravating circumstances, namely his criminal history and the fact that when he committed the present offenses, he was out on bond for a similar criminal charge that he faced in Michigan. These alone are valid aggravating circumstances . . . .

Edsall v. State, 983 N.E.2d 200, 206 (Ind. Ct. App. 2013), reh’g denied(emphasis added)

See Freeze v. State, 827 N.E.2d 600, 603 (Ind. Ct. App. 2005)(“[T]he commission of a crime while on bond for a similar offense, as happened here, may properly be considered an aggravating circumstance.”)

See also Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012)(“[A] finding that [the defendant] violated the terms of his community-corrections placement may have negative collateral consequences.”)

Statutory aggravators: A position having care, custody, or control of the victim of the offense

• Among the aggravating circumstances the trial court may take into account in reaching a sentence is that the defendant “was in a position having care, custody, or control of the victim of the offense.”

Kubina v. State, 997 N.E.2d 1134, 1138 (Ind. Ct. App. 2013)(quoting IC 35-38-1-7.1(a)(8))

See Robinson v. State, 894 N.E.2d 1038, 1042-43 (Ind. Ct. App. 2008)(citing IC 35-38-1-7.1(a)(8))(“It is true that the trial court stated that it was using the fact that [the defendant] had the care, custody, and control of the victim as an aggravating factor, which is one of the statutorily-listed sentencing considerations.”)

Discretion of the trial court to consider non-statutory aggravators: Statutory text

• The criteria listed in [IC 35-38-1-7.1(a)] and [IC 35-38-1-7.1(b)] do not limit the matters that the court may consider in determining the sentence.

IC 35-38-1-7.1(c)

Discretion of the trial court to consider non-statutory aggravators: Interpretations of the text

• In determining what sentence to impose, a trial court is guided by a non-exclusive statutory list of eleven aggravating and eleven mitigating circumstances. IC 35-38-1-7.1. These criteria, however, “do not limit the matters that the court may consider in determining the sentence.” IC 35-38-1-7.1(c).

Malenchik v. State, 928 N.E.2d 564, 568-69 (Ind. 2010)

See Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied(emphasis added)(“Indiana Code section 35-38-1-7.1(a)(3) states that the court may consider as an aggravating circumstance the fact that the victim is less than twelve years of age. In addition, however, the same statute provides that the criteria in [IC 35-38-1-7.1(a)] does not limit the matter the court may consider in determining the sentence.”)

Aggravators from case law: Choosing a victim based on the victim’s race

• Although we have never explicitly held that choosing a victim based on race could be an aggravating circumstance, we have affirmed the notion that characteristics of the victims can support an enhanced sentence.

Witmer v. State, 800 N.E.2d 571, 573 (Ind. 2003)

• The sentencing statute's list of enumerated aggravating circumstances is not exclusive, of course, and we say without hesitation that racially motivated crimes are intolerable and may constitute an aggravating circumstance.

Witmer v. State, 800 N.E.2d 571, 573 (Ind. 2003)

Aggravators from case law: Planning, premeditation, and lying in wait

• Planning of the crime may be appropriately weighed as an aggravator.

Sylvester v. State, 698 N.E.2d 1126, 1132 (Ind. 1998), reh’g denied(citing Bustamante v. State, 557 N.E.2d 1313, 1322 (Ind. 1990))

See Mendoza v. State, 737 N.E.2d 784, 788 (Ind. Ct. App. 2000), reh’g denied(citing Bustamante v. State, 557 N.E.2d 1313, 1322 (Ind. 1990))(“The care and planning used in preparation for a crime is an appropriate aggravator for a sentencing court to consider.”)

• Lying in wait is an aggravating circumstance that justifies an enhanced sentence.

Taylor v. State, 695 N.E.2d 117, 119 (Ind. 1998)

See Taylor v. State, 681 N.E.2d 1105, 1111 (Ind. 1997)(citing Kingery v. State, 659 N.E.2d 490, 497 (Ind.1995), reh’g denied)(“[W]e have held specifically with respect to lying in wait that the trial court may consider it an aggravating circumstance.”)

See also Roney v. State, 872 N.E.2d 192, 204 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)(citing Kingery v. State, 659 N.E.2d 490, 497 (Ind.1995), reh’g denied)(“The trial court had ample evidence before it from which to conclude that [the defendant] had lain in wait for [the victim]. Such a finding is a valid aggravating circumstance.”)

• Lying in wait for a victim is a particularly serious aggravating circumstance because it demonstrates a heightened level of vindictiveness in the commission of a crime.

Taylor v. State, 695 N.E.2d 117, 119 (Ind. 1998)

• Lying in wait is defined as “watching, waiting, and concealment from the person killed with the intent to kill or inflict bodily injury upon that person.”

Kingery v. State, 659 N.E.2d 490, 497 (Ind. 1995), reh’g denied(quoting Thacker v. State, 556 N.E.2d 1315, 1324 (Ind. 1990))

Aggravators from case law: Nature and circumstances of the offense

• [T]he nature and circumstances of the crime can be an aggravator.

Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012)(citing Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied)

See Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied(citing Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh'g denied)(“The nature and circumstances of an offense may properly be recognized as an aggravating circumstance.”)

See also Lavoie v. State, 903 N.E.2d 135, 140 (Ind. Ct. App. 2009)(“[I]t is well-settled that the nature and circumstances of a crime is generally a proper aggravating circumstance.”)

See also Filice v. State, 886 N.E.2d 24, 38 (Ind. Ct. App. 2008), trans. denied(citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001))(“Our Supreme Court has held that the nature and circumstances of a crime can be a valid aggravating factor.”)

• When a sentence is enhanced based upon the nature and circumstances of the crime, however, “the trial court must detail why the defendant deserves an enhanced sentence under the particular circumstances.”

Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied(quoting Plummer v. State, 851 N.E.2d 387, 391 (Ind. Ct. App. 2006))

See Gleason v. State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012)(citing McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007))(“If the nature of the offense is identified as an aggravating factor, the trial court must discuss facts that go beyond the statutory requirements of the crime.”)

See also Filice v. State, 886 N.E.2d 24, 38-39 (Ind. Ct. App. 2008), trans. denied(citing Smith v. State, 872 N.E.2d 169, 179 (Ind. Ct. App. 2007), trans. denied)(“However, a trial court must give more than a generalized reference to the nature and circumstances.”)

• Generally, this aggravator is “thought to be associated with particularly heinous facts or situations.”

McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007)(quoting Vasquez v. State, 762 N.E.2d 92, 97 (Ind. 2001))

• Therefore, the trial court properly considered the total number of wounds that were inflicted on [the victim] as an aggravating factor.

Mateo v. State, 981 N.E.2d 59, 73 (Ind. Ct. App. 2012), trans. denied

Aggravators from case law: Seriousness or brutality of the offense

• Concerning the seriousness of the offense, this aggravator, which implicitly includes the nature and circumstances of the crime as well as the manner in which the crime is committed, has long been held a valid aggravating factor.

Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)

See Mendoza v. State, 869 N.E.2d 546, 556-57 (Ind. Ct. App. 2007), trans. denied(quoting Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007))(“It is apparent that by highlighting the facts that the victims of some of [the defendant’s] crimes were law enforcement officers and that the item he stole was a gun, the trial court impliedly found the seriousness of the offenses—which includes the nature and circumstances of the crimes and the manner in which they were committed—as an aggravator. This has ‘long been held’ to be a valid aggravator and is supported by the record herein.”)

See also Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)(quoting Anglemyer v. State, 868 N.E.2d 482, 492 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007))(“As we stated in Anglemyer v. State, ‘the nature and circumstances of the crime as well as the manner in which the crime is committed’ is a valid aggravating factor.”)

• [F]acts evidencing the particular brutality of the attack and severity of the resulting injury may be considered as an aggravating factor.

Hulfachor v. State, 813 N.E.2d 1204, 1209 (Ind. Ct. App. 2004)(citing Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002))

See Roney v. State, 872 N.E.2d 192, 200 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)(“A trial court may properly refer to the brutal nature of a murder as an aggravating circumstance.”)

See also Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied(“[T]he trial court's finding of the facts of the crime as an aggravating circumstance was also based on the fact that the killing was in the form of an ‘absolute brutal execution.’ This is a permissible aggravating circumstance.”)

Cf. Harman v. State, 4 N.E.3d 209, 220 (Ind. Ct. App. 2014), trans. denied(citation to the record omitted)(“The trial court found that the ‘brutal’ nature of the offense was a ‘significant’ aggravating factor.”)

Aggravators from case law: Presence of gun powder stippling

• For information about gun powder stippling and its use as an aggravating factor, please review Gun Powder Stippling.

Aggravators from case law: In the presence of minor children

• The commission of a crime in the presence of minor children may be considered an aggravating circumstance.

Redden v. State, 850 N.E.2d 451, 465 (Ind. Ct. App. 2006), trans. denied(citing Crawley v. State, 677 N.E.2d 520, 522 (Ind. 1997))

See Perry v. State, 845 N.E.2d 1093, 1097 (Ind. Ct. App. 2006), trans. denied(citing Cloum v. State, 779 N.E.2d 84, 87 (Ind. Ct. App. 2002))(“[T]he commission of a crime in the presence of minor children is a proper aggravating circumstance.”)

Aggravators from case law: Infecting the victim with a sexually transmitted disease

• [The defendant] infected [the victim] with gonorrhea when he molested her. Notwithstanding [the defendant’s] argument that this is not a valid aggravating factor when the defendant does not know that he carries the disease, we deem this to be a valid aggravating circumstance in this case.

Brown v. State, 760 N.E.2d 243, 246 (Ind. 2002), trans. denied

• For more information about child molestation, please review Child Molesting.

Aggravators from case law: Impregnating the victim

• We have already concluded that infecting a victim with a venereal disease is merely a possible consequence of child molestation and therefore a proper aggravating factor. Likewise, impregnation is a possible consequence of child molestation, one that is a proper aggravating factor.

McCoy v. State, 856 N.E.2d 1259, 1264 (Ind. Ct. App. 2006)

• For more information about child molestation, please review Child Molesting.

Aggravators from case law: Abusing a position of trust

• [B]eing in a position of trust with the victim is a valid aggravating circumstance.

Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005)(citing Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003))

See Thomas v. State, 840 N.E.2d 893, 903 (Ind. Ct. App. 2006), trans. denied(citing Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996))(“We have previously held that abusing a position of trust can be a valid aggravating circumstance.”)

See also Ridenour v. State, 639 N.E.2d 288, 298 (Ind. Ct. App. 1994)(citing Middlebrook v. State, 593 N.E.2d 212, 214 (Ind. Ct. App. 1992))(“A ‘position of trust’ by itself constitutes a valid aggravating factor upon which the court could properly enhance [the defendant’s] sentence.”)

See also Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011)(“A harsher sentence is also more appropriate when the defendant has violated a position of trust that arises from a particularly close relationship between the defendant and the victim . . . .”)

• The position of trust aggravator is frequently cited by sentencing courts where an adult has committed an offense against a minor and there is at least an inference of the adult's authority over the minor.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)

Edrington v. State, 909 N.E.2d 1093, 1099 (Ind. Ct. App. 2009), trans. denied(quoting Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007))

• Moreover, this aggravator applies in cases where the defendant has a more than casual relationship with the victim and has abused the trust resulting from that relationship. This is usually the case where the defendant is the victim's mother, father or stepparent.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)

Cf. Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005)(“There is no greater position of trust than that of a parent to his own young child.”)

• Consideration of this aggravator may be appropriate where the defendant is the victim's day care provider.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)

• In addition, our court has held that consideration of the position of trust aggravator was appropriate where the child molest victim was spending the night with the defendant's daughter at the defendant's residence and the defendant admitted that the victim “trusted [him] when she spent the night at [his] house.”

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)(quoting Hines v. State, 856 N.E.2d 1275, 1281 (Ind. Ct. App. 2006), trans. denied)(alteration in the original)

• Generally, cohabitation arrangements of nearly any character between adults do in fact, and should, establish a position of trust between the adults and minors living or staying together.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)

• In contrast, more distant relationships tend not to support the same harshness in sentencing.

Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011)

• Although being in a position of trust with the victim is certainly a valid aggravating circumstance, the relationship between the perpetrator and victim must be closer and more involved than that which was present between [the defendant] and [the victim], who met one another at an auction the month that the events giving rise to this action occurred.

Oberst v. State, 748 N.E.2d 870, 879 (Ind. Ct. App. 2001), trans. denied

Aggravators from case law: Abusing police power and violating the public trust

• The State aptly noted the unique role of police officers in society and the necessity that the community trust officers to do their job appropriately. Further, society has a right to expect that law enforcement officers, who are hired to protect and to serve the community, will perform the tasks necessary for that role while they are sober and taking care to create no undue harm to society. As appropriately noted by the trial court, [the defendant, a law enforcement officer] violated this public trust. The trial court did not abuse its discretion in relying upon this factor as a significant aggravating circumstance.

Bisard v. State, 26 N.E.3d 1060, 1071 (Ind. Ct. App. 2015), trans. denied(quotation marks and citations omitted)

Aggravators from case law: Death caused by a conspiracy to commit murder

• [T]he fact that a death has occurred as a result of a conspiracy to commit murder is also a valid aggravating factor.

McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)

Aggravators from case law: Existence of multiple victims

• The existence of multiple victims of a crime is an appropriate justification for increasing the sentence for that crime.

Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)

See Coy v. State, 999 N.E.2d 937, 947 (Ind. Ct. App. 2013)(citing Mateo v. State, 981 N.E.2d 59, 73 (Ind. Ct. App. 2012), trans. denied)(“[A] trial court may consider the number of victims as an aggravator.”)

See also Granger v. State, 946 N.E.2d 1209, 1221 (Ind. Ct. App. 2011)(quoting Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010))(alteration in the original)(“The presence of multiple victims generally ‘justif[ies] the imposition of enhanced and consecutive sentences.’”)

Aggravators from case law: Committing multiple crimes

• The law is settled that the fact of multiple crimes is a valid aggravating factor.

McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)(citing O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001))

Winkleman v. State, 22 N.E.3d 844, 853 (Ind. Ct. App. 2014), trans. denied(quoting McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007))

Aggravators from case law: Failing to seek medical help for the victim

• The fact that a defendant had an opportunity to seek medical treatment for a victim whom he eventually killed can properly be considered as an aggravating circumstance going to the nature and circumstances of the crime.

Roney v. State, 872 N.E.2d 192, 202 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

See Sexton v. State, 968 N.E.2d 837, 841 (Ind. 2012), reh’g denied, trans. denied(That the defendant left the murder victim languishing without medical attention was an aggravating factor in imposing the maximum sentence, and also evidence of callousness.)

Aggravators from case law: Concealing the crime and avoiding detection

• Acts of a defendant taken to avoid detection or conceal facts relating to the crime constitute valid aggravating circumstances.

Roney v. State, 872 N.E.2d 192, 201 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

See Sipple v. State, 788 N.E.2d 473, 482 (Ind. Ct. App. 2003), trans. denied("[A] trial court may consider a defendant's effort to interfere in the investigation of a crime by concealing information to be an aggravating circumstance.")

See also Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied(“The substantial post-crime steps to conceal the crime are also matters the trial court could find to be an aggravating circumstance.”)

Aggravators from case law: The defendant’s character, in general

• The defendant's character is a valid aggravating factor.

Bacher v. State, 722 N.E.2d 799, 802 n. 4 (Ind. 2000)

• A trial court may evaluate “any other factor which reflects on the defendant's character, good or bad” when determining the appropriate sentence to impose.

Taylor v. State, 695 N.E.2d 117, 121 (Ind. 1998)(quoting Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991))

Adkins v. State, 703 N.E.2d 182, 187 (Ind. Ct. App. 1998)(quoting Taylor v. State, 695 N.E.2d 117, 121 (Ind. 1998)(quoting Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991)))

• Trial judges are permitted to examine specific activities of the defendant at sentencing, where no presumption of innocence exists, to “give the judge a feel for the kind of person defendant is through a thorough examination of his background.”

Singh v. State, 40 N.E.3d 981, 988 (Ind. Ct. App. 2015), trans. denied(quoting McNew v. State, 391 N.E.2d 607, 612 (Ind. 1979))

• The maximum possible sentences are generally most appropriate for the worst offenders.

Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied(citing Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002))

• Although the maximum possible sentences are generally most appropriate for the worst offenders, this rule is not an invitation to determine whether a worse offender could be imagined, as it is always possible to identify or hypothesize a significantly more despicable scenario, regardless of the nature of any particular offense and offender.

Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013)(citing Simmons v. State, 962 N.E.2d 86, 92 (Ind. Ct. App. 2011))

• By stating that maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment, and this encompasses a considerable variety of offenses and offenders.

Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013)(citing Simmons v. State, 962 N.E.2d 86, 92-93 (Ind. Ct. App. 2011))

See McClendon v. State, 910 N.E.2d 826, 837 (Ind. Ct. App. 2009), trans. denied(quoting Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007), reh’g denied)(“Maximum sentences are generally appropriate for the worst offenders; however, the class of offenders that warrant maximum punishment ‘encompasses a considerable variety of offenses and offenders.’”)

Aggravators from case law: When the defendant has a mental illness or disorder

• [The defendant] next . . . claim[s] that a trial court is required to give significant mitigating weight to a diagnosis of mental illness. That is incorrect. “[D]epending upon the sentencing goals, mental illness can be considered a mitigating factor or an aggravating factor.”

Rawson v. State, 865 N.E.2d 1049, 1057 (Ind. Ct. App. 2007), trans. denied(quoting Scott v. State, 840 N.E.2d 376, 383 (Ind. Ct. App. 2006), trans. denied)(some alteration in the original)

Aggravators from case law: A history of substance abuse and failure to seek treatment

• While we have recognized that a history of substance abuse may be a mitigating circumstance, Field v. State, 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied, we have held that when a defendant is aware of a substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its discretion by rejecting the addiction as a mitigating circumstance. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied.

Hape v. State, 903 N.E.2d 977, 1002 (Ind. Ct. App. 2009), trans. denied

E.g., Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied(citing Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied)(“While [the defendant] recognized that his use of alcohol led to his multiple convictions, he chose not to seek treatment. We therefore conclude that the court did not err in finding [the defendant’s] alcohol abuse and failure to obtain treatment to be an aggravator.”)

See Marley v. State, 17 N.E.3d 335, 341 (Ind. Ct. App. 2014), trans. denied(“While we certainly commend [the defendant] for seeking treatment, the fact that he has a substance abuse problem is not necessarily a factor that weighs in favor of a lesser sentence. This is especially so since [the defendant] never sought treatment until after his arrest for the instant offense.”)

• Indeed, a history of substance abuse is sometimes found by trial courts to be an aggravator, not a mitigator.

Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App. 2002), trans. denied

See Roney v. State, 872 N.E.2d 192, 199 (Ind. Ct. App. 2007), trans. denied, abrogated on other grounds by Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)(“A history of substance abuse may constitute a valid aggravating factor.”)

Aggravators from case law: Failure to pay child support

• [I]t is apparent from [the defendant’s] conviction for possession of a controlled substance, that he elected to direct whatever financial resources he had towards procuring drugs rather than towards supporting his children. In our view, such behavior speaks to the quality of [the defendant’s] character and may properly be considered by the trial court in sentencing. Thus, we conclude that the trial court did not err in relying upon [the defendant’s] failure to pay child support as an aggravator . . . .

Kirby v. State, 746 N.E.2d 440, 443 (Ind. Ct. App. 2001), trans. denied(footnote omitted)

Aggravators from case law: Poor work history

• [The defendant] also challenges that the trial court erred in considering his poor work history as an aggravating circumstance. [The defendant] does not claim that it was improper for the court to consider his work history; rather, he claims that the factor should have been considered as a mitigator because it was indicative of his mental illness. In light of the evidence presented which indicated that [the defendant] had not been able to maintain gainful employment, we cannot say that separate and apart from a mental condition as an explanation for the poor work history, it was improper for the trial court to consider it.

Cox v. State, 780 N.E.2d 1150, 1159-60 (Ind. Ct. App. 2002)(footnote omitted)

Aggravators from case law: Prior unsuccessful attempts to rehabilitate the defendant

• The defendant’s criminal history and a judicial statement that prior attempts to rehabilitate defendant have been unsuccessful can serve as separate aggravating circumstances under Indiana’s advisory sentencing scheme.

See McMahon v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006)

• The trial court may properly rely upon a criminal history and the failure of prior rehabilitative attempts to enhance a sentence.

Westbrook v. State, 770 N.E.2d 868, 870 (Ind. Ct. App. 2002)(citing Brown v. State, 698 N.E.2d 779, 783 (Ind. Ct. App. 2002))

Aggravators from case law: The defendant’s risk of reoffending

• In our view, the likelihood that a defendant will commit further offenses once released is a crucial factor in determining whether a sentencing court should be lenient with a defendant and whether to offer him probation, an alternate placement, or a fully executed sentence. As a result, the trial court properly considered [the defendant’s] high risk to offend as an aggravating factor.

Mateo v. State, 981 N.E.2d 59, 74 (Ind. Ct. App. 2012), trans. denied

Aggravators from case law: Behavior during incarceration

• [A] defendant's behavior during incarceration may be considered as an aggravating factor, as it relates to the risk that the defendant will commit another crime.

Brock v. State, 983 N.E.2d 636, 640 (Ind. Ct. App. 2013), reh’g denied

Aggravators from case law: Lack of remorse

• “A trial court may find a defendant's lack of remorse to be an aggravating factor.”

Gale v. State, 882 N.E.2d 808, 819 (Ind. Ct. App. 2008)(quoting Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003))

Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied(citing Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003))

Shafer v. State, 856 N.E.2d 752, 758 (Ind. Ct. App. 2006), trans. denied(citing Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003))

See Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014)(citing Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002))(“A trial court may consider as an aggravator the defendant's lack of remorse.”)

• A defendant lacks remorse when he displays disdain or recalcitrance, the equivalent of “I don't care.”

Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied(citing Bluck v. State, 716 N.E.2d 507, 513 (Ind. Ct. App. 1999))

See Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014)(quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002))(“A lack of remorse is displayed by a defendant ‘when he displays disdain or recalcitrance, the equivalent of ‘I don't care.’’”)

• This has been distinguished from the right to maintain one's innocence, i.e., “I didn't do it.”

Rogers v. State, 878 N.E.2d 269, 273 (Ind. Ct. App. 2007), trans. denied(citing Bluck v. State, 716 N.E.2d 507, 513 (Ind. Ct. App. 1999))

Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014)(quoting Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002))

• It is improper . . . to rely on a defendant's maintaining his innocence as an aggravator.

Angleton v. State, 686 N.E.2d 803, 816 (Ind. 1997), reh’g denied

• We note that “[a] court may not enhance a sentence for a defendant consistently maintaining his innocence if the defendant does so in good faith.”

Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014)(citing Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002))(alteration in the original)(emphasis added)

Aggravators from case law: When the defendant is an illegal alien

• [B]eing an illegal alien is itself more properly viewed as an aggravator than as a mitigator.

Samaniego-Hernandez v. State, 839 N.E.2d 798, 806 (Ind. Ct. App. 2005), abrogated on other grounds by Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007))

• The trial court found [the defendant’s] illegal alien status reflects disregard for the law. “The defendant is in this country illegally; he gained entrance into this country illegally, and every day he spends here, he is violating the laws of this country.” Based on the language in Samaniego–Hernandez, [the defendant’s] illegal alien status is a valid aggravator.

Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008)(citation to the record omitted)

Aggravators from case law: When the victim is pregnant

• The victim’s pregnancy was a proper aggravating factor, regardless of whether the defendant knew that the victim was pregnant, because the defendant's knowledge of the aggravating circumstance is not necessary for it to qualify as aggravator.

See McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)(“The Court of Appeals also found erroneous the trial court's finding that the victim's pregnancy was an aggravating circumstance. We agree with Judge Vaidik that pregnancy is similar to the infirmity or age of the victim in that the defendant's knowledge of these circumstances is not necessary for them to qualify as aggravating.”)

See also Coleman v. State, 952 N.E.2d 377, 384 (Ind. Ct. App. 2011)(citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001))(“We find McCann to be instructive. There, our supreme court held that the fact of an attempted rape victim's pregnancy was a proper aggravating circumstance, despite the absence of any evidence that the defendant knew the victim was pregnant.”)

Aggravators from case law: Impact on the victim’s family or other persons

• Under normal circumstances, the impact upon family is not an aggravating factor for purposes of sentencing.

Harris v. State, 824 N.E.2d 432, 441 (Ind. Ct. App. 2005)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))

Comer v. State, 839 N.E.2d 721, 727 (Ind. Ct. App. 2005), trans. denied(quoting Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(alteration in the original)(“‘[U]nder normal circumstances the impact upon family is not an aggravating circumstance for purposes of sentencing.’”)

Leffingwell v. State, 793 N.E.2d 307, 309 (Ind. Ct. App. 2003)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“Under normal circumstances, the impact upon family is not an aggravating circumstance for purposes of sentencing.”)

• However, the impact on others may qualify as an aggravator in certain cases.

Harris v. State, 824 N.E.2d 432, 441 (Ind. Ct. App. 2005)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))

Comer v. State, 839 N.E.2d 721, 727 (Ind. Ct. App. 2005), trans. denied(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“The impact on others may qualify as an aggravator in certain cases . . . .”)

Leffingwell v. State, 793 N.E.2d 307, 309 (Ind. Ct. App. 2003)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“The impact upon others may qualify as an aggravator in some situations . . . .”)

• In such cases, the defendant's actions must have had an impact on other persons and must be of a destructive nature that is not normally associated with the commission of the offense in question.

Harris v. State, 824 N.E.2d 432, 441 (Ind. Ct. App. 2005)

Comer v. State, 839 N.E.2d 721, 727 (Ind. Ct. App. 2005), trans. denied(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“[T]he defendant's 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 . . . .”)

Leffingwell v. State, 793 N.E.2d 307, 310 (Ind. Ct. App. 2003)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“[T]he defendant's actions must have had an impact of a destructive nature that is not normally associated with the commission of the offense in question . . . .”)

• In addition, this impact must be foreseeable to the defendant.

Harris v. State, 824 N.E.2d 432, 441 (Ind. Ct. App. 2005)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))

Comer v. State, 839 N.E.2d 721, 727 (Ind. Ct. App. 2005), trans. denied(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“[T]his impact must be foreseeable to the defendant.”)

Leffingwell v. State, 793 N.E.2d 307, 310 (Ind. Ct. App. 2003)(citing Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997))(“[T]his impact must be foreseeable to the defendant.”)

Not aggravators: The trial court’s desire to send a personal philosophical or political message

• It is axiomatic that a trial judge's desire to send a personal philosophical or political message is not a proper reason to aggravate a sentence.

Gibson v. State, 856 N.E.2d 142, 149 (Ind. Ct. App. 2006)(citing Nybo v. State, 799 N.E.2d 1146, 1152 (Ind. Ct. App. 2003))

Not aggravators: Victims’ or their representatives’ sentencing recommendations

• Victims' or their representatives' sentencing recommendations are not mitigating or aggravating factors as those terms are used in the sentencing statute.

Ousley v. State, 807 N.E.2d 758, 764 (Ind. Ct. App. 2004)(citing Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998))

Plea bargains

• Our opinion today does not foreclose the possibility of the Defendant bargaining as to what can and cannot be potential aggravating and mitigating factors. It is well within the purview of contract law, and consequentially, as mentioned above, the law as it relates to plea bargains, for the Defendant to bargain and the State to accept a plea bargain that forecloses the possibility of the trial court using enhancements from the underlying charges that were dismissed, or from the original charges from which a lesser included plea is taken.

Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

• However, if a plea bargain lacks such language, we hold it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them.

Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013)

Sentencing statements: Use of a material element of an offense as a reason for the sentence a trial court imposes

• Where a trial court's reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is “improper as a matter of law.”

Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014)(quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007))

• For more information about sentencing statements, please review Aggravators and Mitigators.

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