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Price v. State3/16/2000
On Direct Appeal
The defendant-appellant, Kerrie Price, was convicted of dealing in cocaine, a class A felony; possession of cocaine, a class C felony; dealing in marijuana, a class D felony; possession of marijuana, a class D felony; dealing in cocaine, a class B felony; and possession of cocaine, a class D felony. After the jury returned the verdicts, the defendant pled guilty to a habitual offender charge. At sentencing, the trial court found that the three possession charges were included within the related dealing charges and sentenced the defendant to 35 years for dealing in cocaine as a class A felony, 20 years for dealing in cocaine as a class B felony, and 3 years for dealing in marijuana as a class D felony, to be served consecutively. The trial court enhanced the sentence for the class A felony by 30 years based upon the habitual offender finding. The defendant appeals, claiming erroneous sentencing and erroneous exclusion of two eligible jurors based upon their age.
Sentencing
The defendant claims that the trial court erroneously considered two improper aggravators and failed to state reasons for its decision to run the sentences consecutively. The defendant argues that, although the trial court did consider other aggravators, the weight of those aggravators would not support the enhancement and that the trial court would probably have sentenced the defendant differently if those improper aggravators were not considered. At sentencing, the trial court found the following six aggravators: (1) that the defendant was on probation at the time of the offense; (2) that the defendant had a history of criminal activity that includes violence; (3) that the defendant was in need of correctional or rehabilitative treatment that can best be provided in a penal facility; (4) that imposing a reduced sentence or suspending the sentence and imposing probation would depreciate the seriousness of the crime; (5) that the offense was "designed to affect the public and directed at the public at large"; and (6) that the offense "occurred in a neighborhood that is depressed." Record at 432.
Sentencing lies within the discretion of the trial court. Battles v. State, 688 N.E.2d 1230, 1235 (Ind. 1997). We review trial court sentencing decisions only for abuse of discretion, including decisions to increase the presumptive sentence or to run sentences consecutively due to aggravating circumstances. Trowbridge v. State, 717 N.E.2d 138, 149 (Ind. 1999).
The defendant first claims that the trial court erroneously considered the aggravator that imposition of a reduced sentence, suspension of the sentence, or probation would depreciate the seriousness of the crime. The defendant argues that this aggravator is only appropriate when the trial court is considering imposing a sentence lower than the presumptive sentence, which the defendant argues the trial court never did in this case. We have previously found it improper for a trial court to find as an aggravating factor that the imposition of a reduced sentence, suspension of the sentence, or probation would depreciate the seriousness of the crime. Garrett v. State,714 N.E.2d 618, 622 (Ind. 1999) (citing Jones v. State, 675 N.E.2d 1084, 1088 (Ind. 1996)); Sweeney v. State, 704 N.E.2d 86, 109 (Ind. 1998).
Second, the defendant claims that the trial court erred in finding that the defendant was in need of correctional treatment that would best be provided by a correctional facility. The defendant, citing Battles v. State, 688 N.E.2d 1230 (Ind. 1997), contends that the trial court failed to support this with a specific statement establishing the defendant's needs for the treatment. We agree that it is impr
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