Michael Phelps v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN C. LITZ GREGORY F. ZOELLER
Monrovia, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jun 11 2012, 9:51 am
IN THE CLERK
of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA tax court
MICHAEL PHELPS, )
)
Appellant-Defendant, )
)
vs. ) No. 55A01-1108-CR-410
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MORGAN SUPERIOR COURT
The Honorable Christopher Burnham, Judge
The Honorable G. Thomas Gray, Judge
Cause No. 55D01-1104-FA-451
Cause No. 55D02-1103-JD-130
June 11, 2012
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Michael Phelps appeals from his conviction of and sentence for Attempted Murder1 as
a class A felony. Phelps presents the following consolidated and restated issues for our
review:
1. Did the trial court with juvenile court jurisdiction abuse its discretion by
waiving its jurisdiction?
2. Did the trial court with juvenile court jurisdiction err by denying Phelps’s
motion to close the proceedings?
3. Did the trial court commit reversible error by denying Phelps’s motion for
change of venue after jurisdiction had been waived?
4. Is Phelps’s sentence inappropriate in light of the nature of the offense and
the character of the offender, or otherwise in violation of the state and
federal constitutional prohibitions against cruel and unusual punishment?
We affirm.
Phelps began attending Martinsville West Middle School in 2007 upon entering the
sixth grade. During that school year, Phelps accumulated twenty-four disciplinary referrals
from five different staff members. Three involved altercations with other students and
twenty-one were for refusing to cooperate with authority figures. The school attempted to
modify Phelps’s behavior through an array of disciplinary actions.
Phelps was retained in the sixth grade because of his failing grades, which were the
result of a lack of effort rather than an inability to master the content. During his second year
of sixth grade, Phelps had five disciplinary referrals from four different staff members, two
of which were for altercations with other students and three of which were for failure to
cooperate with authority figures.
1
Ind. Code Ann. § 35-42-1-1 (West, Westlaw current through legislation effective May 31, 2012) (murder);
Ind. Code Ann. § 35-41-5-1 (West, Westlaw current through legislation effective May 31, 2012) (attempt).
In the seventh grade, Phelps had thirteen disciplinary referrals, one of which involved
an altercation with other students and twelve of which were for refusal to cooperate with
authority figures. The school repeated its attempt to use a variety of measures such as
student conferences, calling home, meeting with parents, after-school-detention, and in-
school suspension, among others, to correct Phelps’s behavior. Phelps received an out-of-
school suspension and was not allowed on school property for a period of time. The
principal and other school officials communicated with Phelps’s mother numerous times
about her son’s behavior. Phelps did not show a willingness to comply with school rules
after receiving a disciplinary referral.
In the 2010-2011 school year Phelps was in the eighth grade. During that school year
Phelps had eight disciplinary referrals from five different staff members. One of those
referrals was for an altercation with other students and several other referrals were for
refusing to cooperate with authority figures. On October 14, 2010, Phelps received his first
referral to the juvenile system for truancy. He was placed on an informal adjustment for a
period of three months. On November 29, 2010, Phelps made threats and punched another
student in the face.
Two subsequent petitions were filed alleging that Phelps was delinquent for being in
possession of paraphernalia. Phelps was adjudicated a delinquent and was placed on formal
probation for six months. The very next day, Phelps received a disciplinary referral at school
for rude and discourteous behavior. The day after that, Phelps received a disciplinary referral
after he said he was going to blow up the school. Based on these referrals, the probation
department filed a probation violation.
3
Phelps was suspended from school for ten days following his statement that he was
going to blow up the school. The principal informed Phelps that his statement was taken
seriously and they discussed Phelps’s other referrals and his decision not to be a serious
student. Phelps was notified that he was not allowed on school property. The principal
further informed Phelps that school officials were also recommending his expulsion from
school in addition to the period of suspension.
On March 17, 2011, Phelps’s mother contacted the school to withdraw Phelps from
school so that he could begin homeschooling. On March 22, 2011, Phelps’s mother returned
his text books to the school, ensured that he had no pending fines, and completed the
paperwork necessary for withdrawal. The principal informed Phelps’s mother that because
he had withdrawn from school during a pending disciplinary action, Phelps would be
considered a suspended student if he were to reenroll there.
During the period of suspension, Phelps spent time with his friend, Jeff Bunch. Phelps
indicated that he wanted to steal a gun. Phelps subsequently stole a gun from the home of his
former step-father, Andy Flanningan.
Phelps and another student at the middle school, Chance Jackson, did not get along
with one another and had not for some time. Phelps had taunted Jackson on several
occasions, and had attempted to engage him in a fight. Jackson, however, refused to fight
Phelps.
Natalie Arnold had dated both Phelps and Jackson. Two weeks prior to March 25,
2011, Arnold saw Phelps at school. Arnold knew that Phelps was not supposed to be on
school property and asked Phelps what he was doing. Phelps told her that he had some
4
business to take care of and later showed Arnold a firearm. When Arnold inquired why
Phelps had a gun, Phelps told her it was for her protection. On a separate occasion, Phelps
sent a text message to Arnold stating that he wanted to shoot Jackson. Phelps and Arnold
sent several text messages to one another, during one of which, Arnold asked Phelps to
promise that he would not shoot Jackson.
A week to ten days prior to March 25, 2011, Darian Hoskins spoke with Phelps.
Hoskins gave Phelps a hug and felt something in Phelps’s waistband. Hoskins asked Phelps
what was in his waistband and Phelps replied that it was a gun. Phelps pulled out a black and
silver firearm from the front of his pants and displayed it to Hoskins. Phelps also removed
bullets from his pocket and showed them to Hoskins. Hoskins inquired why Phelps had a
gun, and Phelps told him that he was having trouble with a kid at school named Chance.
Phelps told Hoskins that he was going to shoot Chance at school.
On March 25, 2011, when Jeff Bunch arrived at school, Phelps was there and was
asking if anyone had seen Chance Jackson. Phelps and Bunch started to enter the middle
school, but turned around after Phelps indicated that there were too many people in there.
Phelps and Bunch then entered a vestibule area where they found Jackson. Phelps stated to
Jackson, “I hear you’ve been talking shit about me.” Trial Transcript at 36. Jackson replied,
“No, I’ve been trying to avoid you.” Id. at 73. Phelps told Jackson that was not what he had
heard, to which Jackson replied, “Well, you heard wrong.” Id. Phelps said, “So why won’t
you fight me.” Id. Jackson stated that there was no reason to fight and that fighting would
not solve anything. Jackson also told Phelps that he did not want to get kicked out of school.
5
Phelps replied, “Too bad, bitch.” Id. Phelps then pulled out the black and silver firearm and
shot Jackson twice in the abdomen. After the shooting, Phelps ran off, followed by Bunch.
Martinsville Police Officer Brian Chambers arrived at the school, which was at that
time in complete lockdown. Due to the emergency and uncertainty if the assailant or
assailants had additional plans, the children were required to sit on the floor in their
classrooms. All the lights were turned off and the blinds were pulled while the SWAT team
searched the school.
Jackson had sustained two gunshot wounds to his abdomen. Jackson told Officer
Dawn Hoffman of the Martinsville Police Department that Phelps had shot him. Jackson was
then transported via Lifeline to Methodist Hospital in Indianapolis.
Bunch returned to the school and told police officers there that Phelps had tossed the
firearm into a wooded area. Phelps was apprehended by Officer Blake Long near an
elementary school. Phelps tested positive for marijuana when he was admitted to the
detention center.
On March 28, 2011, the State filed a petition alleging that Phelps was a delinquent
child. Thereafter, the State filed a motion to waive juvenile-court jurisdiction. A two-day
hearing was held on the State’s motion at the conclusion of which the trial court took the
matter under advisement. On April 25, 2011, the juvenile court held a hearing, during which
it announced its findings and waived jurisdiction.
On April 26, 2011, the State charged Phelps with one count of attempted murder a
class A felony, one count of aggravated battery as a class B felony, one count of carrying a
handgun without a license on school property as a Class C felony, one count of trespassing
6
on school property as a class D felony, possession of a firearm on school property as a class
D felony, and one count of theft as a class D felony. On May 4, 2011, Phelps filed a motion
for a change of venue, which was ultimately granted by the trial court.
Jury selection was held in Clay County. During voir dire, counsel for Phelps told the
jury that the defense theory of the case was that although Phelps had shot Jackson, he had not
intended to kill him. Several prospective jurors disagreed with the premise that a person
could shoot another person twice without intending to kill the person. Phelps moved for
another change of venue, to which the State objected. The trial court took the matter under
advisement, deferring decision on the motion until further questioning of the prospective
jurors had been completed.
After conferring with Phelps, Phelps’s counsel informed the trial court that Phelps
wished to waive his right to a jury trial. After questioning Phelps, the trial court found that
he was knowingly and voluntarily waiving his right to a jury trial. A bench trial was held on
July 11, 2011, at which time the State dismissed all counts except for the count alleging
attempted murder. The trial court found Phelps guilty of that count and sentenced him to
thirty-five years executed with five years suspended and five years of probation. Phelps now
appeals. Additional facts will be supplied where necessary.
1.
Phelps argues that the trial court having juvenile court jurisdiction abused its
discretion by waiving that jurisdiction. In particular, Phelps contends that the State failed to
establish that Phelps was beyond the rehabilitative resources of the juvenile system. Phelps
7
asserts that he presented uncontroverted testimony that facilities were available that could
address Phelps’s problems yet ensure the safety of the community.
Ind. Code Ann. § 31-30-3-2 (West, Westlaw current through legislation effective May
31, 2012) (the Waiver Statute) provides in relevant part as follows:
Upon motion of the prosecuting attorney and after full investigation and
hearing, the juvenile court may waive jurisdiction if it find that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to
acts against the person than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even
though less serious;
(2) the child was at least fourteen (14) years of age when the act
charged was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system; and
(5) it is in the best interests of the safety and welfare of the community that the
child stand trial as an adult.
We review the sufficiency of a particular waiver order in much the same way we review all
sufficiency cases. We will not weigh the evidence or judge the credibility of witnesses.
K.M. v. State, 804 N.E.2d 305 (Ind. Ct. App. 2004). We look only to the evidence favorable
to the State and the reasonable inferences to be drawn therefrom considering both the record
established in the waiver hearing and the findings of fact stated by the trial court. Id.Juvenile proceedings, unlike criminal proceedings, are civil in nature and the burden is
on the State to establish by a preponderance of the evidence that juvenile jurisdiction should
8
be waived. Id. We review the juvenile court’s decision to waive its jurisdiction for an abuse
of discretion. Id. The juvenile court is entitled to give the evidence before it whatever
weight it deems appropriate. Id.We note at the outset that Phelps claims the trial court abused its discretion by making
reference to the charged counts in addition to attempted murder and aggravated battery in its
finding that Phelps engaged in a repetitive pattern of delinquent acts. Phelps argues that all
of the charges related to the shooting did not constitute the repetitive commission of
delinquent acts. The Waiver Statute, however, requires proof that the child committed an act
that is a felony that is heinous or aggravated or part of a repetitive pattern of delinquent acts.
Phelps agrees on appeal that the crimes of attempted murder and aggravated battery are
especially heinous. Consequently, since the Waiver Statute is written in the disjunctive, and
Phelps does not challenge the heinousness of the crimes with which he was charged, we find
no abuse of discretion on that basis.
Phelps’s main contention is that the trial court abused its discretion in finding that he
is beyond rehabilitation under the juvenile justice system. At the waiver hearing, Phelps
presented the testimony of a psychologist, a minister of a residential facility, and two others
who indicated that Phelps could benefit from programs in the juvenile justice system and that
he was amenable to treatment. The State, on the other hand, presented the testimony of a
juvenile probation officer, Brent Fultz, that Phelps was beyond rehabilitation in the juvenile
justice system. Fultz was not aware of any residential placement facilities that would be
willing to take on the liability of having Phelps placed there. Fultz, who had supervised
9
several thousand juvenile probationers, stated that he assessed the seriousness of Phelps’s
crime as a nine on a scale of one to ten, with ten being the most serious.
The State elicited testimony from the minister of the residential facility that the facility
was not a secure facility and did not accept individuals who had committed crimes of
violence. The minister agreed that Phelps did not qualify for his program. The psychologist
who testified on Phelps’s behalf also stated that Phelps reacts angrily in many different
situations and strikes out in anger when he feels threatened. He also testified that many
people who have dysfunctional, troubled upbringings, such as Phelps’s, do not attempt to kill
someone. The psychologist further testified that there was no significant difference in an
adolescent who was sixteen years old and one who was fifteen years and eleven months old.
We conclude that Phelps’s argument amounts to an invitation to reweigh the evidence
and reassess the credibility of witnesses, tasks our standard of review forbids us from
undertaking. K.M. v. State, 804 N.E.2d 305 (Ind. Ct. App. 2004). “The juvenile court in
holding the waiver hearing is not compelled to give overriding weight to testimony that
supports a finding the juvenile should remain in the juvenile system.” Gerrick v. State, 451
N.E.2d 327, 330 (Ind. 1983).
Phelps also argues that the trial court abused its discretion by finding that Phelps’s
waiver from juvenile court jurisdiction was in the best interests of the safety and welfare of
the community. Again, Phelps points to the testimony of the psychologist who testified on
his behalf during the hearing. The psychologist stated that Phelps had not demonstrated
serious violent tendencies with anyone else, was never violent with females or family, and
was never violent toward adults. The trial court had before it, however, the evidence set
10
forth above outlining Phelps’s pattern of disciplinary problems at school and the school’s
myriad efforts to help Phelps adjust his behavior, all to no avail. We will not reweigh the
evidence or reassess witness credibility. The trial court did not abuse its discretion in finding
that the State had met its burden of establishing this factor.
In sum, we find that the trial court did not abuse its discretion by finding that the State
had met its burden by a preponderance of the evidence of establishing that the juvenile court
should waive its jurisdiction. The challenges presented here on appeal pertain to the weight
of the evidence. There was sufficient evidence before the juvenile court to support its
decision.
2.
Phelps claims that the trial court erred by denying his request that the juvenile waiver
hearing be closed to the public. Phelps asks this Court to clarify the interaction between Ind.
Code Ann. § 31-32-6-3 (West, Westlaw current through legislation effective May 31, 2012)
(Open Proceedings Statute) and I.C. § 31-32-6-4 (West, Westlaw current through legislation
effective May 31, 2012) (Closed Proceedings Statute).
The Open Proceedings Statute provides that a delinquency proceeding in which a
child is alleged to have committed an act that would be murder or a felony if committed by
an adult is open to the public. I.C. § 31-32-6-3. The Open Proceedings Statute, however,
provides for an exception under the Closed Proceedings Statute. Under section 4, upon a
motion by the State, the child, the child’s guardian ad litem, counsel, parent, guardian, or
custodian, the juvenile court may issue an order closing a proceeding during the testimony of
11
a health care provider under certain circumstances. I.C. § 31-32-6-4 (West, Westlaw current
through legislation effective May 31, 2012).
The State contends, and Phelps appears to acknowledge, that since the trial court
denied the request to close the proceedings, and the proceedings remained open to the public,
the question here is moot. There is no relief from the trial court’s ruling that can be afforded
Phelps on appeal. This court will not engage in discussions of moot questions. See
Richardson v. State, 402 N.E.2d 1012 (Ind. Ct. App. 1980) (appellate court does not engage
in discussion of moot questions or render advisory opinions).
That said, we note that the Closed Proceedings Statute provides that the trial court
may issue an order to close the proceeding during a health care provider’s testimony.
Inherent within the statutory language is the discretion provided the trial court in reaching
that decision. The legislature has not spoken on the issue of whether a party may waive the
possibility of closed proceedings by calling a witness to testify as to privileged matters in this
context. We do not offer an opinion on this topic and find no juvenile trial court error in the
exercise of its discretion to keep the waiver proceedings open.
3.
Phelps contends that once jurisdiction was waived, and the jury venire was being
selected, the trial court erred by denying his second motion for change of venue. During voir
dire, Phelps’s counsel advanced the defense theory that although Phelps shot Jackson twice,
he did not intend to kill him. Several of the prospective jurors rejected that premise.
Phelps’s counsel moved for a change of venue, to which the State objected. The trial court
advised counsel that the motion would be taken under advisement. Defense counsel
12
conferred with Phelps and informed the trial court that Phelps was waiving his right to a jury
trial. The trial court questioned Phelps, determined that the waiver was knowingly and
voluntarily made, and proceeded with a bench trial.
Our Supreme Court has held that a trial court has the discretion to postpone ruling on
a motion for change of venue pending voir dire. Davidson v. State, 580 N.E.2d 238 (Ind.
1991). We review a trial court’s decision on a motion for change of venue for an abuse of
discretion. Id. Here, Phelps waived his right to jury trial without allowing the trial court the
opportunity to rule on his motion. As a consequence, Phelps has failed to preserve this issue
for our review. “Error can only be predicated on questions presented to and ruled upon by
the trial court.” Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982). Because the motion for
change of venue was withdrawn from the trial court prior to a ruling thereon, no error has
been preserved for our review.
4.
Phelps asserts that his thirty-five-year sentence for his attempted murder conviction is
inappropriate in light of the nature of the offense and the character of the offender. As such,
he asks this court to revise his sentence under Ind. Appellate Rule 7(B). He also contends
that his sentence is violative of federal and state constitutional prohibitions against cruel and
unusual punishment.
Although framed primarily as an App. Rule 7(B) argument, Phelps appears to argue
that the trial court abused its discretion in the weight given to the aggravating circumstances
and the mitigating circumstance of his remorse for his crime. He also appears to argue that
the trial court failed to find Phelps’s mental health issues as a mitigating circumstance. In
13
addition to the constitutional arguments raised by Phelps we will consider his sentence under
an abuse of discretion standard and inappropriateness standard of review. The sentencing
range for a class A felony conviction is a fixed term of between twenty and fifty years, with
the advisory sentence being thirty years. Ind. Code § 35-50-2-4 (West, Westlaw current
through legislation effective May 31, 2012).
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind.
2007) clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is
“clearly against the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom.” Id. at 490. The trial
court can abuse its discretion by (1) issuing an inadequate sentencing statement, (2) finding
aggravating or mitigating factors that are not supported by the record, (3) omitting factors
that are clearly supported by the record and advanced for consideration, or (4) by finding
factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187 (Ind. Ct. App.
2011).
The trial court identified the following aggravating factors when sentencing Phelps:
(1) The offense occurred in the presence of other children; (2) Phelps shot Jackson twice; (3)
Phelps had stolen a gun before he committed the crime in this case; (4) Jackson’s injuries
were substantial and long-term; and (5) Phelps made a deadly weapon in jail after he was
incarcerated for this crime. Phelps does not dispute the validity of any of the aggravating
factors found by the trial court, but instead argues that only the aggravating circumstance of
Jackson’s substantial injuries should carry significant weight. Because a trial court can no
14
longer abuse its discretion by failing to properly weigh aggravating and mitigating factors,
we find no abuse of discretion in regard to the aggravating circumstances found. See
Anglemyer v. State, 868 N.E.2d 482. (no abuse of discretion in failing to properly weigh
aggravating and mitigating factors).
As for the mitigating factors, Phelps argues that the trial court omitted mitigating
factors including his mental health, Jackson’s role in inducing the offense, and Phelps’s
acceptance of responsibility and remorse for his actions. When the allegation is that the trial
court failed to identify or find a mitigating factor, the defendant is required to establish that
the mitigating evidence in not only supported by the record, but that the mitigator is
significant. Id. Where the trial court does not find the existence of a mitigating factor after it
has been argued by counsel, the trial court is not obligated to explain why it has found that
the factor does not exist. Id.Phelps did not establish a nexus between his mental health issues and the shooting of
Jackson. The psychologist Phelps called to testify about his mental health issues stated that
none of Phelps’s mental health issues affected his ability to control his behavior. Thus, the
trial court did not err by failing to find Phelps’s mental health issues to be a significant
mitigating factor. See Lopez v. State, 869 N.E.2d 1254 (Ind. Ct. App. 2007) (no trial court
error in questioning the extent to which mental illness was in control of the defendant’s
behavior and caused her to commit her crimes).
Phelps argues that Jackson’s role in inducing the offense should have been found as a
mitigating factor. Phelps contended that Jackson spread personal information about Arnold,
who had been the girlfriend of each boy at some period of time. Jackson supposedly used a
15
nickname for Arnold, which directly made reference to that personal information. Phelps
argues that Jackson’s actions in that regard explain Phelps’s anger toward Jackson, and that
the trial court abused its discretion by not finding this mitigating factor. The psychologist
who testified in this trial, however, stated that he had discussed with Phelps the alleged rumor
being spread by Jackson about Arnold, and asked Phelps to what degree that might have
contributed to his shooting Jackson. Phelps indicated that the trouble between Jackson and
Arnold had very little to do with the shooting. He indicated that his own feelings of anger
toward Jackson were the primary basis for the shooting. We cannot say that the trial court
abused its discretion by omitting this proffered mitigating factor.
Phelps also contends that the trial court should have found his remorse to be a
significant mitigating factor. A trial court is under no obligation to accept a defendant’s
alleged remorse as a mitigating circumstance. Manns v. State, 637 N.E.2d 842 (Ind. Ct. App.
1994). The trial court possesses the ability to directly observe a defendant and can best
determine whether a defendant’s remorse is genuine. Mead v. State, 875 N.E.2d 304 (Ind.
Ct. App. 2007). Substantial deference must be given to the trial court’s evaluation of a
defendant’s remorse. Id. We find no abuse of discretion in the trial court’s treatment of this
proffered mitigating circumstance.
Turning now to Phelps’s argument that his sentence is inappropriate, we note that we
have the constitutional authority to revise a sentence if, after careful consideration of the trial
court’s decision, we conclude the sentence is inappropriate in light of the nature of the
offense and character of the offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868
N.E.2d 482. Even if a trial court follows the appropriate procedure in arriving at its sentence,
16
we maintain the constitutional power to revise a sentence we find inappropriate. Hope v.
State, 834 N.E.2d 713 (Ind. Ct. App. 2005). Although we are not required under App. R.
7(B) to be “extremely” deferential to a trial court’s sentencing decision, we recognize the
unique perspective a trial court bring s to such determinations. Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). On appeal, Phelps bears the burden of persuading us
that his sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867.
As for the nature of the offense, we observe that Phelps stole a handgun from his
former step-father, Andy Flanningan. Phelps showed the handgun to others in the period of
time leading up to the shooting. Phelps entered onto school property, from which he had
been banned, and did so just as school was about to begin for the day. Other students were
present at the school then and observed Phelps on school property. Phelps sought out
Jackson and then shot him twice after a brief verbal altercation between the two. Phelps then
fled the scene, discarding his jacket in order to conceal his identity, and discarded the still-
loaded handgun along the way. We cannot say that the slightly enhanced sentence for
attempted murder is inappropriate in light of the nature of the offense.
As for the character of the offender, we observe that Phelps had much difficulty with
complying with the direction of authority figures at his school. He displayed an inability to
control or curb his anger. Phelps, who had the intellectual ability to succeed at school, chose
not to take advantage of those opportunities, especially in light of his substance-abuse-ridden
family setting. Phelps himself suffered from substance-abuse issues. Phelps refused to take
advantage of the rehabilitative efforts offered by people within his school system. We cannot
17
say that the slightly enhanced sentence for attempted murder is inappropriate in light of the
character of the offender.
We now turn to Phelps’s constitutional claims regarding his sentence. Phelps
contends that his sentence of thirty-five years with five years suspended to probation for
attempted murder is cruel and unusual punishment under article 1, section 16 of the Indiana
Constitution and the Eighth Amendment to the federal constitution. A penalty is
disproportional under article 1, section 16 of the Indiana Constitution only when the criminal
penalty is not graduated and proportioned to the nature of the offense. Conner v. State, 626
N.E.2d 803 (Ind. 1993). “The constitutional prohibition against cruel and unusual
punishments proscribes atrocious or obsolete punishments and is aimed at the kind and form
of the punishment, rather than the duration or amount.” Ellis v. State, 736 N.E.2d 731, 736
(Ind. 2000). Here, the record reveals that the trial court took great care in arriving at Phelps’s
sentence. Our Supreme Court has held that a thirty-year sentence imposed for a sixteen-year-
old’s conviction for the crime of attempted robbery did not constitute cruel and unusual
punishment. See Douglas v. State, 481 N.E.2d 107 (Ind. 1985). We find no violation here of
article 1, section 16 of the Indiana Constitution.
The Eighth Amendment of the federal constitution proscribes grossly disproportionate
punishments. Solem v. Helm, 463 U.S. 277 (1983). Our focus is upon whether Phelps’s case
is “the rare case in which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.” U.S. v. Gross, 437 F.3d 691, 692-
93 (7th Cir. 2006), cert. denied, 548 U.S. 913 (2006) (quoting Ewing v. California, 538 U.S.
1811 (2003)). We find nothing unusual about a thirty-five year sentence, with five years
suspended, for a conviction of attempted murder.
Judgment affirmed.
MAY, J., and BARNES, J., concur.
19