ILNews

Affirmed sentence in home invasion, sex assault clarifies aggravator standards

Back to TopCommentsE-mailPrintBookmark and Share

An Indianapolis man’s 40-year executed sentence for leading a home invasion and forcing the woman who lived there to perform oral sex at gunpoint wasn’t improper, the Indiana Court of Appeals ruled Friday.

The ruling discarded the convict’s argument that the Marion Superior sentence on convictions of Class A felony criminal deviate conduct and Class B felony robbery improperly referenced the victim’s strength and support system. The appellate panel also found a new standard in which a judge may consider elements of a crime as an aggravator.

“In Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008), our supreme court observed that ‘sentencing used to be a two-step process — imposing of the presumptive sentence, then deciding whether any aggravators or mitigators warranted deviation.’ Since the 2005 modification of the sentencing scheme, however, sentencing ‘consists of only one discretionary determination,’” Judge Michael Barnes wrote for the court.  “‘Thus, a sentence toward the high end of the range is no longer an ‘enhanced sentence’ in the sense that the former regime provided.’”

“According to Pedraza, based on the 2005 changes, the consideration of a material element of crime as an aggravator ‘is no longer an inappropriate double enhancement,’” Barnes wrote in Joshua Gomillia v. State of Indiana, 49A02-1301-CR-77.

“Thus, to the extent the trial court considered an element of the offense as an aggravator, it is no longer an improper double enhancement under the new sentencing scheme.”

The court rejected Gomillia’s other argument that the trial court improperly considered facts outside the record in referring to the victim’s strength and support system.

“The trial court was simply making a statement about the resilience of the victim prior to its assessment of the aggravators and mitigators. Any error in the trial court’s consideration of (the victim’s) testimony at a co-defendant’s trial was harmless because it did not impact the trial court’s determination of Gomillia’s sentence,” Barnes wrote.
 
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT