FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID A. BROOKS STEPHEN R. CARTER
Valparaiso, Indiana Attorney General of Indiana
Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM R. DIXON, )
)
Appellant-Defendant, )
)
vs. ) No. 75A01-0407-CR-300
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-0308-FA-008
APRIL 28, 2005
OPINION - FOR PUBLICATION
HOFFMAN, Senior Judge
Defendant-Appellant William Dixon appeals the sentence he received for his conviction of two
counts of kidnapping, Class A felonies, Ind. Code § 35-42-3-2; robbery, a Class
B felony, Ind. Code § 35-42-5-1; and resisting law enforcement, a Class D
felony, Ind. Code § 35-44-3-3.
We affirm.
Dixon presents two issues for our review, which we restate as:
I. Whether Dixons sentence was appropriate under Ind. Appellate Rule 7(B).
II. Whether the trial court erred by imposing Dixons sentence consecutive to his
sentence in another county.
Dixon robbed a grocery store in one Indiana county and then fled to
an adjacent county where he entered the victims home to hide from the
police. He then ordered the victim/mother to drive her car while Dixon,
armed with a gun, rode in the trunk with the victim/son. Once
the car was safely through the police roadblock, the victim/mother stopped the vehicle,
and Dixon and the victim/son emerged from the trunk. Dixon left in
the vehicle, and the victims walked until they found help. Dixon was
eventually captured and pleaded guilty to two counts of kidnapping, one count of
robbery, and one count of resisting law enforcement. The trial court sentenced
him to thirty years and thirty-four years on the two counts of kidnapping,
ten years on the robbery, and two and one-half years on the resisting
law enforcement, all served consecutively, for an aggregate sentence of seventy-six and one-half
years. This appeal followed.
Dixon first contends that his sentence is inappropriate in light of the nature
of the offense and the character of the offender. Specifically, Dixon argues
that because no injuries resulted to his victims, his offenses did not merit
the length of sentence that was imposed upon him by the trial court.
Under Article VII, Section 6 of the Indiana Constitution, we have the constitutional
authority to review and revise sentences. However, we will not do so
unless the sentence imposed is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B).
Our review under Appellate Rule 7(B) is extremely deferential to the trial court.
Martin v. State, 784 N.E.2d 997, 1013 (Ind. Ct. App. 2003), rehg
denied. The nature of the offense refers to the statutory presumptive sentence
for the class of crimes to which the offense belongs. Id.
Thus, the presumptive sentence is the starting point in our consideration of the
appropriate sentence for the crime committed. Id.
In the present case, Dixon was convicted of two Class A felonies, a
Class B felony, and a Class D felony. The presumptive sentence for
a Class A felony is thirty years with the minimum sentence being twenty
years and the maximum sentence being fifty years. See Ind. Code §
35-50-2-4. With respect to one of the kidnapping counts, Dixon was sentenced
to the presumptive thirty years. For the second count, the trial court
enhanced the presumptive sentence by a mere four years. Dixon also pleaded
guilty to robbery as a Class B felony which has a presumptive term
of ten years with a minimum sentence of six years and a maximum
of twenty years. See Ind. Code § 35-50-2-5. Here, Dixon was
sentenced to the presumptive sentence for the offense of robbery. Additionally, he
was convicted of the offense of resisting law enforcement as a Class D
felony. The presumptive sentence for a Class D felony is one and
one-half years, with the maximum sentence being three years and the minimum sentence
being six months. See Ind. Code § 35-50-2-7. For this offense,
the trial court sentenced Dixon to an enhanced term of two and one-half
years. In summary, Dixon received two presumptive sentences and two minimally enhanced
sentences for his four offenses. Considering the nature of these offenses, we
find Dixons sentence to be appropriate.
The character of the offender refers to the general sentencing considerations under Ind.
Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind.
Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial
courts discretion under Ind. Code § 35-38-1-7.1(d). Id. Pursuant to Ind.
Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature
and circumstances of the crime committed, whether the victim was less than twelve
years of age, the defendants criminal history and character, and the risk that
the defendant will commit another crime. Here, the nature and circumstances of
the crime are that Dixon entered a home and kidnapped a mother and
her son, who was less than twelve years of age. Armed with
a gun, he ordered the young boy into the trunk of the car
and directed the boys mother to get him through the police roadblock undetected.
He then left them on the side of a road and stole
their car. Testimony at Dixons sentencing hearing revealed the emotional trauma these
events caused for the young boy and his mother. As reflected by
the presentence report and cited by the trial court, Dixon had a lengthy
criminal history, including several felony convictions, and an active warrant from the state
of Michigan. Additionally, the risk that Dixon will commit another crime is high
in that he was given several opportunities at rehabilitation before committing the instant
crime, and his criminal history began when he was a teenager and has
continued steadily throughout his adult years. Thus, based upon the character of
the offender, Dixons sentence is appropriate.
Furthermore, the imposition of consecutive sentences totaling seventy-six and one-half years is not
excessive. Sentencing decisions rest within the discretion of the trial court, and
the court may increase a sentence or impose consecutive sentences if it finds
aggravating factors. Anderson v. State, 798 N.E.2d 875, 879 (Ind. Ct. App.
2003). One valid aggravator alone is enough to enhance a sentence or
to impose it consecutive to another. Id. Moreover, the same factor
may be used both to enhance a presumptive sentence and to justify consecutive
sentences. Id.
The imposition of concurrent and consecutive sentences is governed by Ind. Code §
35-50-1-2.
See footnote Sub-section (c) gives the trial court discretion to determine whether to
impose concurrent or consecutive sentences and allows the court to consider aggravating and
mitigating circumstances in doing so. As we stated previously, the trial court
considered Dixons lengthy criminal history, the fact that one of the victims was
less than twelve years of age, the circumstances of the crimes and the
fact that there was a substantial risk that Dixon would commit further criminal
acts if he were not incarcerated because there had been no rehabilitative effect
shown from his prior incarceration.See footnote Under these facts and circumstances,
we cannot conclude that Dixons aggregate seventy-six and one-half year sentence is inappropriate.
Moreover, we find no merit to Dixons argument that the length of his
sentence was inappropriate because he did not physically harm his victims. We
note:
While the absence of such conduct does not in
any way lessen the
severity of the crimes as such, and thus does not constitute a mitigating
factor justifying a reduction or suspension of the presumptive sentence, the presence of
aggravated brutality distinguishes the defendants who commit such acts and justifies a substantially
aggravated term where it is present. We do not by this observation
debase the seriousness of these crimes themselves. Nor do we suggest that
the absence of collateral brutality prevents the imposition of an enhanced sentence.
Nevertheless, a rational sentencing scheme should punish more severely those who brutalize the
victims of their crimes.
Beatty v. State, 567 N.E.2d 1134, 1138 (Ind. 1991) (quoting Fointno v. State,
487 N.E.2d 140, 148 (Ind. 1986)). Dixon received the presumptive sentence for
two of his four offenses. In addition, he received only slight enhancements
for the remaining two offenses. Dixons sentence falls squarely within a rational
sentencing scheme for these offenses. His sentence was appropriate given the nature
of the offenses and the character of the offender.
Dixon also asserts that the trial court improperly ordered his sentence
to be served consecutive to his sentence in an adjacent county. In
support of this assertion, Dixon cites Lee v. State, 816 N.E.2d 35 (Ind.
2004), and Thompson v. State, 634 N.E.2d 775 (Ind. Ct. App. 1994).
However, Dixons reliance on these two cases is misplaced. First, both cases
deal with a previous version of Ind. Code § 35-50-1-2, the statute at
the heart of the issue in the present case. In addition, Lee
holds that an illegal sentence imposed pursuant to a plea agreement does not
automatically render the entire agreement void, a holding that has no bearing on
the issue in the case at bar.
When interpreting a statute, we look to the express language of the statute
and the rules of statutory construction. Indiana State Teachers Ass'n. v. Board
of School Com'rs of City of Indianapolis, 693 N.E.2d 972, 974 (Ind. Ct.
App. 1998). However, we may not interpret a statute that is clear
and unambiguous on its face. Schafer v. Sellersburg Town Council, 714 N.E.2d
212, 215 (Ind. Ct. App. 1999). Rather, the words of the statute
are to be given their plain, ordinary and usual meaning unless a contrary
purpose is clearly shown by the statute itself. Id. Additionally, the
language employed in a statute is deemed to have been used intentionally.
Id.
Ind. Code § 35-50-1-2(c) provides, in pertinent part:
Except as provided in subsection (d) or (e) [sub-sections mandating consecutive terms of
imprisonment], the court shall determine whether terms of imprisonment shall be served concurrently
or consecutively. The court may consider the aggravating and mitigating circumstances in
IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection.
The court may order terms of imprisonment to be served consecutively even if
the sentences are not imposed at the same time. However, except for
crimes of violence, the total of the consecutive terms of imprisonment, exclusive of
terms of imprisonment under IC 35-50-2-8 [sentencing of habitual offenders] and IC 35-50-2-10
[sentencing of habitual substance offenders], to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not exceed the
presumptive sentence for a felony which is one (1) class of felony higher
than the most serious of the felonies for which the person has been
convicted.
(Emphasis added). As clearly stated by the italicized portion of subsection (c),
the trial court has the discretion to order consecutive sentences even when the
sentences are not contemporaneously imposed. See Jones v. State, 775 N.E.2d 322,
332 (Ind. Ct. App. 2002) (noting the trial courts discretion under subsection (c)).
In the present case, the trial court found it prudent, based upon
the aggravating circumstances listed in Ind. Code § 35-38-1-7.1(b) and the nature of
the case, to order Dixon to serve his sentence consecutively to the sentence
he received in the adjacent county from which he was fleeing after committing
a robbery at the time he entered this county and committed the offenses
here. Thus, under the plain language of the statute, the trial court
neither violated its statutory authority nor abused its discretion by ordering Dixon to
serve consecutive sentences.
Dixons seventy-six and one-half year sentence is appropriate, and the trial court was
properly within its discretion when it ordered Dixon to serve his sentence consecutive
to a sentence he received in another county.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
Footnote:
Ind. Code § 35-50-1-2 provides, in pertinent part:
(a) As used in this section, "crime of violence'' means:
(1) murder (IC 35-42-1-1);
(2) attempted murder (IC 35-41-5-1);
(3) voluntary manslaughter (IC 35-42-1-3);
(4) involuntary manslaughter (IC 35-42-1-4);
(5) reckless homicide (IC 35-42-1-5);
(6) aggravated battery (IC 35-42-2-1.5);
(7) kidnapping (IC 35-42-3-2);
(8) rape (IC 35-42-4-1);
(9) criminal deviate conduct (IC 35-42-4-2);
(10) child molesting (IC 35-42-4-3);
(11) sexual misconduct with a minor as a Class A felony under IC
35-42-4-9(a)(2) or a Class B felony under IC 35-42-4-9(b)(2);
(12) robbery as a Class A felony or a Class B felony (IC
35-42-5-1);
(13) burglary as a Class A felony or a Class B felony (IC
35-43-2-1); or
(14) causing death when operating a motor vehicle (IC 9-30-5-5).
(b) As used in this section, "episode of criminal conduct" means offenses or
a connected series of offenses that are closely related in time, place, and
circumstance.
(c) Except as provided in subsection (d) or (e), the court shall determine
whether terms of imprisonment shall be served concurrently or consecutively. The court
may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c)
in making a determination under this subsection. The court may order terms
of imprisonment to be served consecutively even if the sentences are not imposed
at the same time. However, except for crimes of violence, the total
of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC
35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions
arising out of an episode of criminal conduct shall not exceed the presumptive
sentence for a felony which is one (1) class of felony higher than
the most serious of the felonies for which the person has been convicted.
Footnote: We also note that Dixons sentences for kidnapping and robbery, which are
crimes of violence, were properly ordered served consecutively to each other and to
his sentence for resisting law enforcement, which is not a crime of violence,
even though all of these crimes arose out of the same criminal episode,
because the total sentence for the Class D felony offense of resisting law
enforcement is two and one-half years which is less than the four year
presumptive sentence for a Class C felony.
See Ind. Code § 35-50-1-2
(a) and (c).