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Affirmed sentence in home invasion, sex assault clarifies aggravator standards

August 30, 2013

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.
 
 

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