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Justices uphold sentence, clarify previous caselaw

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The Indiana Supreme Court accepted a case to address the proposition that relying on an element of the offense as an aggravating factor when sentencing is no longer prohibited. The justices believe that the Court of Appeals has applied this position too broadly.

Joshua Gomillia, while on drugs, decided with two friends to rob a house to make up some money lost while gambling. Gomillia picked the Indianapolis home and he and Lebronze Myles broke into E.K.’s home, sexually assaulted her and stole property and her car. Gomilla agreed to plead guilty to one count of Class A felony criminal deviate conduct and Class B felony robbery in exchange for his executed sentence being capped at 40 years.

When he was sentenced, the trial court commissioner cited in aggravation the circumstances of the crime and the terror Gomillia inspired in the victim. He received an executed sentence of 40 years. Gomillia argued those two factors cited by the commissioner are essentially elements of the offenses, so they cannot be used to enhance his sentence above the advisory sentence. The Court of Appeals cited Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) in finding that relying on an element of the offense as an aggravating factor is no longer prohibited.

Since Townsend v. State, 498 N.E.2d 1198, 1201 (Ind. 1986), courts have relied upon the rule outlined in it that a material element of an offense may not constitute an aggravating circumstance to support an enhanced sentence. But in Pedraza, the justices said a trial court’s finding of the existence of an aggravating factor to elevate a criminal charge based on the same prior conviction is not an inappropriate double enhancement.

“Citing Pedraza in support several panels of the Court of Appeals have taken the position that trial courts are no longer prohibited from considering material elements of an offense when considering aggravating circumstances at sentencing. We believe this is too broad a reading of
Pedraza,” Justice Robert Rucker wrote.

Double enhancements aside, the justices held Tuesday that the use of a material element of an offense as a reason for the sentence a trial court imposes can be “improper as a matter of law” in some circumstances.

“[W]e have consistently said ‘the advisory sentence [under the current statutory regime] is the starting point the Legislature selected as an appropriate sentence for the crime committed,’” Rucker continued. “… under the current statutory regime the Legislature has determined the appropriate advisory sentence based upon the elements of the offense. Where a trial court’s reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’ Nothing in Pedraza should be understood to alter this basic premise.”
 
But in Gomillia’s case, the nature and circumstances of the crime included the trial court’s discussion of the leadership role he played in the commission of these offenses, as well as the terror the victim suffered. Both are appropriate reasons for justifying a sentence greater than the advisory term, the justices held in Joshua Gomillia v. State of Indiana, 49S02-1408-CR-521.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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