Baysinger v. State ( 2006 )

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Steven L. Bay-singer (Baysinger), appeals his sixty-five year sentence for murder, Ind.Code § 35-42-1-1(1).

We affirm.

ISSUES

Baysinger raises two issues on appeal, which we restate as follows:

(1) Whether Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied, applies retroactively to Baysinger's case, thereby calling into question the trial court's findings of certain aggravating circumstances; and

(2) Whether Baysinger was properly sentenced.

FACTS AND PROCEDURAL HISTORY

In the summer of 1996, Baysinger and Adam Ellis (Ellis) gave money to David Lee (Lee) so that he could purchase drugs for them. Lee did not deliver any drugs to the pair nor did he return the money. Consequently, Baysinger and Ellis conspired to dig a grave in the woods and to kill and bury Lee. On July 5, 1996, some time after Ellis had dug the grave, Bay-singer picked up Lee and drove him to meet Ellis After picking up Ellis, Bay-singer drove the group to the woods. He then shot Lee three times in the head, killing him. Baysinger and Ellis burned Lee's clothes, placed his body in the makeshift grave, covered him with dirt, and left the scene.

In June 1999, almost three years after Baysinger and Ellis murdered Lee, Lee's body was found. Shortly thereafter, on June 23, 1999, Baysinger was charged with Count I, conspiracy to commit murder, 1.C. §§ 35-42-1-1(1), 85-41-5-2, a class A felony, and Count II, murder, LC. § 85-42-1-1(1). On January 23, 2001, Baysinger pled guilty to the murder charge in exchange for the dismissal of the conspiracy charge. His open plea agreement provided for an executed sentence not to exceed sixty-five years.

On March 19, 2001, the trial court conducted a sentencing hearing. It found the following aggravating cireumstances: (1) Baysinger's prior criminal history; (2) the nature and cireumstances of the crime.¹ (8) lack of remorse; (4) need of correctional or rehabilitative treatment best provided by a penal facility; and (5) imposition of a reduced sentence would depreciate the seriousness of the crime.. In addition, the trial court found two mitigating cireum-stances: (1) Baysinger's criminal history consisted of only one prior conviction, and (2) Baysinger pled guilty and confessed to the present offense. In accordance with the plea agreement, the trial court sentenced Baysinger to sixty-five years executed at the Indiana Department of Correction.

Baysinger did not file a direct appeal of the trial court's decision. However, on March 1, 2005, he filed a petition for permission to file a belated notice of appeal under Indiana Post-Conviection Rule 2. The trial court denied the petition, but subsequently on October 6, 2005, we reversed the trial court's order. See Baysinger v. State, 835 N.E.2d 223 (Ind.Ct.App.2005). Then, on November 8, 2005, Baysinger filed this belated notice of appeal, and his case now comes before this court. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Retroactive Application of Blakely

Baysinger first argues that the trial court violated his Sixth Amendment right to have aggravating factors determined by a jury in violation of Blakely v. Washington. He insists that the language of Indiana Post-Conviction Rule 2(1) mandates retroactive application of Blakely under these facts. The Rule provides, in pertinent part, that where a court grants a defendant permission to file a belated notice of appeal that "notice of appeal shall be treated for all purposes as if filed within the prescribed period." Ind. Post-Convietion Rule 2(1). We agree.

We recently analyzed this issue in another belated appeal case and "conclude[d] that Blakely applies retroactively because [the defendant's] case was not yet final when Blakely was decided." Meadows v. State, 858 N.E.2d 1032, 1035 (Ind. Ct.App.2006) (quoting Boyle v. State, 851 N.E.2d 996, 1006 (Ind.Ct.App.2006)). Similarly, we conclude that in Baysinger's case, the availability of appeal via Post-Conviction Rule 2(1) had not yet been exhausted when Blakely was announced, and therefore Blakely must be given retroactive effect. Meadows, 853 N.E.2d at 1085. In reaching this conclusion, we echo the concerns voiced in Boyle, noting that the retroactive application of Blakely is likely to have a "highly detrimental effect on the administration of justice," and that it would wreak "havoc" on trial courts across the country. Id. Because of our Supreme Court's ruling in Blakely, many defendants will pursue a belated appeal and challenge their enhanced sentences "on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced." Id. Accordingly, we reaffirm that "[uJuless and until the U.S. Supreme Court revises or clarifies its rules on retroactivity, however, we are bound to consider the merits of belated Blakely appeals where appropriate." Id.

II. Sentencing

Baysinger next argues that the trial court abused its discretion when it enhanced his sentence. In particular, Baysinger claims the trial court first recognized invalid aggravators pursuant to Blakely and then pronounced a sentence that was inappropriate in light of his character. It is well established that sentencing decisions lie within the discretion of the trial court and will be reversed only for abuse of discretion. White v. State, 846 N.E.2d 1026, 1034 (Ind.Ct.App.2006), trans. denied. Furthermore, we have held that when considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive penalties.² Trial courts may then consider deviation from this presumptive sentence based upon a balancing of the factors, which must be considered pursuant to IC. § 35-388-1-7.1(a), together with any discretionary aggravating and mitigating factors found to exist. Id. For a trial court to impose a sentence, other than the presumptive, it must (1) identify the significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those aggravators and mitigators; and (8) demonstrate that the court has balanced the aggravators with the mitigators. Id. A single aggravating factor is sufficient to support the imposition of an enhanced sentence. Id. Therefore, even if a trial court improperly applies aggravating circumstances, a sentence enhancement may be upheld where there are other valid aggravating cireumstances. Id. In addition, Indiana Appellate Rule 7(B) gives us authority to review and revise sentences to ensure that they are proportionate in light of the nature of the offense and character of the offender.

A. Aggravating Factors

Baysinger relies on Blakely for support in alleging that the trial court relied on aggravating factors not pled and proven beyond a reasonable doubt to the jury. Our reading of the trial court's sentencing statement and sentencing order indicates that the trial court found five aggravators in this case: (1) Baysinger's prior criminal history; (2) the nature and cireumstances of the crime; (8) lack of remorse; (4) the need of correctional or rehabilitative treatment best provided by a penal facility; and (5) the imposition of a reduced sentence would depreciate the seriousness of the crime. Baysinger does not contend that the trial court improperly found the nature and circumstances of his crime as an ag-gravator, so we need not address it further. In addition, the State concedes that the court improperly found that the imposition of a reduced sentence would depreciate the seriousness of the crime because there is no indication in the record that the trial court was considering the imposition of a mitigated sentence. See Ector v. State, 689 N.E.2d 1014, 1016 (Ind.1994), reh'g denied. The three remaining aggra-vators, however, require our attention.

In Apprendi v. New Jersey, 580 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 485 (2000), the United States Supreme Court held "other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Blakely clarified the statutory maximum to mean the maximum sentence a judge may impose solely on the basis of the fucts reflected in the jury verdict or admitted by the defendant. Blakely, 542 U.S. at 303, 124 S.Ct. 2581. In accordance with Blakely, our supreme court recognizes four proper ways for a trial court to enhance a sentence with aggravating circumstances: (1) prior conviction(s); (2) a fact found by a jury beyond a reasonable doubt; (8) facts when admitted by a defendant; and (4) in the course of a guilty plea where the defendant has waived Apprendi rights and stipulated to certain facts or consented to judicial fact finding. Trusley v. State, 829 N.E.2d 928, 925 (Ind.2005).

Here, the trial court properly used Baysinger's prior criminal conviction to enhance his sentence. Baysinger's lone criminal conviction is a misdemeanor possession of marijuana in January 1996. He cites Wooley v. State, 716 N.E.2d 919, 929 (Ind.1999), reh'g demied, for the proposition that ordinarily a single, nonviolent misdemeanor conviction is not a significant aggravator for the crime of murder. We are mindful that the significance of a prior criminal history varies based on the gravity, nature, and number of prior offenses and their similarity to the instant offense. See id.; see also Haas v. State, 849 N.E.2d 550, 556 (Ind.2006). The State points out that Baysinger's prior criminal conviction was drug-related and occurred only six months before he murdered Lee over a drug-related dispute. Citing the reasoning used in Wooley and subsequent holdings on this issue, the State contends that the recency and nature of Baysinger's possession conviction supports the trial court's finding that it constitutes a significant ag-gravator. See, eg., Vasquez v. State, 762 N.E.2d 92 (Ind.2001) (prior misdemeanor convictions for conversion were significant in a murder case where the murder was committed as a result of defendant's plan to rob the victim). We agree with the State and therefore find that it was not an abuse of discretion for the trial court to find Baysinger's prior criminal history to be an aggravator. Therefore, a Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger's prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind.2008) ("Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.") (citing Day v. State, 560 N.E.2d 641, 648 (Ind. 1990)). We therefore decline to remand Baysinger's case for a reevaluation of the sentencing considerations.

B. Appellate Rule 7(B) Analysis

Baysinger's final argument is that his sixty-five-year sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) gives us the authority to revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The presumptive sentence is meant to be a starting point for the trial court's consideration in determining an appropriate sentence. White, 846 N.E.2d at 1036. After due consideration of Baysinger's sentence, we cannot say that it is inappropriate.

First, the nature of this crime supports the sentence imposed. Baysinger and Ellis were angry with Lee for his role in an incomplete drug deal. In a premeditated fashion, they found a section of forest where they could dig a shallow grave for Lee's body. Baysinger picked up Lee first, and then Ellis, and the two men drove their victim near the spot in the woods where they had dug his grave. They led the man from the vehicle into the woods to his grave; then, Baysinger shot him three times in the head. Baysinger and Ellis apparently removed Lee's clothes, burned them, and tossed them in the grave with his body before filling the hole with dirt. The two men then concealed the erime until the body was discovered three years later. Nothing about the nature of this heinous crime persuades us to reduce the sentence imposed on this defendant.

Moreover, we are not persuaded that Baysinger so completely turned his life around in the three years between his commission of this crime and his arrest that we should revise his sentence. It is worth noting that Baysinger was not convicted of any crimes during this period, and he contends that he renounced drug use, sought an education, and led a law-abiding life as a result of his eventual realization that he was headed down a disastrous path. However, the State points out that Baysinger had been dealing drugs around the time of the murder, and we are reminded that he was convicted of possession of marijuana only six months before he killed Lee. Based on the information before us, we cannot say that Bay-singer's character is so redeeming that we should take the unusual step of reducing his sentence under Rule 7(B). According ly, we find his sixty-five-year sentence is appropriate in light of the nature of the offense and his character.

CONCLUSION

Based on the foregoing, we conclude that the trial court properly sentenced Baysinger.

Affirmed.

DARDEN, J., concurs. VAIDIK, J., concurs in result with separate opinion.

1 . In his brief, Baysinger states that the trial court found six aggravators. See Appellant's Br. p. 6-7. Two of the aggravators he cites, however, fall under the "nature and circumstances of the crime" aggravator, i.e., (1) the crime was planned in advance, the victim was shot three times in the head without provocation, and (2) Baysinger assisted in burying the body, burning the victim's clothes, and concealing the murder.

2 . Public Law 71-2005, abolishing "presumptive sentences" in favor of "advisory sentences," is not applicable in the instant case since its effective date was April 25, 2005, whereas the commission of the offense for this case was prior to April 25, 2005. See Richards v. State, 681 N.E.2d 208, 213 (Ind. 1997).