Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
THOMAS W. VANES
Office of the Public Defender
Crown Point, Indiana
Attorney General of Indiana
ANN L. GOODWIN
Special Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE LAKE SUPERIOR COURT
Criminal Division, Room III
The Honorable Diane Ross Boswell, Judge
Cause No. 45G03-0309-FD-191
November 21, 1006
MEMORANDUM DECISION - NOT FOR PUBLICATION
Following remand by our court and re-sentencing by the trial court, Appellant,
Raymond Howard-Lear, challenges his sentence of five years incarceration for his
conviction for Battery as a Class C felony. 1 Upon appeal, Howard-Lear claims that the
trial court abused its discretion upon balancing the aggravators and mitigators in resentencing him.
In reciting the underlying facts in this case, we refer to our earlier decision
remanding this case for re-sentencing, Howard-Lear v. State, No. 45A05-0411-CR-585
(Ind. Ct. App. Aug. 18, 2005):
“The facts are that Howard-Lear and the victim, Joyce Haney, lived
together for more than fifteen years. On September 5, 2003, they were no
longer living together. In fact, at that time, Howard-Lear was then the
subject of a protective order forbidding him from contacting Haney.
Nevertheless, on that day, Howard-Lear appeared at Haney’s residence and
the two began to argue. Howard-Lear grabbed Haney and took her to the
ground. During the ensuing struggle, Haney suffered injuries that caused
The State charged Howard-Lear with two counts of confinement,
one as a class B felony and the other as a class D felony, and two counts of
battery, one as a class [C] felony and the other as a class [A misdemeanor].
[(App. 17-18, 50)]. On May 14, 2004, Howard-Lear pled guilty to a single
charge of battery as a class C felony in exchange for the State’s agreement
to drop all other charges. Following a sentencing hearing, the court
imposed an enhanced, six-year sentence, with three years suspended.” Slip
op. at 2.
On March 29, 2005, Howard-Lear, after serving eighteen months of his six-year
sentence, was released from the Department of Correction and placed on probation.
Ind. Code § 35-42-2-1 (Burns Code Ed. Repl. 2004); Ind. Code § 35-50-2-6 (Burns Code Ed.
On May 8, 2005, Howard-Lear was arrested in Illinois for violating Haney’s 2
protective order against him.
It appears that Howard-Lear met police at Haney’s
mother’s nursing home, where Haney was visiting, and that once there, Howard-Lear
handed the police various papers in an attempt to have them take Haney into custody for
purposes of having her “committed.” Sentencing Tr. at 7. According to Haney, when
she informed the police that she had a protective order against Howard-Lear, they
arrested him. On October 20, 2005, Howard-Lear entered a plea of guilty in Illinois to
violating the protective order and was sentenced to 166 days in the Cook County Jail.
On August 18, 2005, which was subsequent to Howard-Lear’s arrest in Illinois but
prior to his guilty plea on that charge, we determined in his first appeal of the instant case
that the trial court’s consideration of five separate aggravators was erroneous due to the
fact that two of the aggravators constituted elements of Howard-Lear’s offense and two
others ran afoul of Blakely v. Washington, 542 U.S. 296, 301 (2004). We therefore
reversed the sentence and remanded to the trial court for a new sentencing hearing.
On December 1, 2005, the court held a hearing for purposes of re-sentencing
Howard-Lear. Upon re-sentencing him to five years with the Department of Correction,
the court found as a mitigating circumstance Howard-Lear’s lack of criminal history, and
the court found as an aggravating circumstance that Howard-Lear had violated the
protective order. The court also considered Howard-Lear’s risk to re-offend, which it
Haney’s last name is now Turner.
determined was “medium” based upon the fact that he had a GED 3 and had not had a
steady job since 1995. App. at 94.
Upon appeal, Howard-Lear claims that the trial court gave undue weight to the
aggravator of his violating a protective order and that it abused its discretion by allowing
this aggravator to “completely trump” what he claims was the substantial mitigator of his
lack of criminal history. Appellant’s Brief at 7.
Sentencing determinations, including whether to adjust the presumptive 4 sentence,
are within the discretion of the trial court. Ruiz v. State, 818 N.E.2d 927, 928 (Ind.
2004). If a trial court relies upon aggravating or mitigating circumstances to modify the
presumptive sentence, it must do the following: (1) identify all significant aggravating
and mitigating circumstances; (2) explain why each circumstance is aggravating or
mitigating; and (3) articulate the evaluation and balancing of the circumstances. Id.
When a defendant offers evidence of mitigators, the trial court has the discretion to
determine whether the factors are mitigating, and the trial court is not required to explain
why it does not find the proffered factors to be mitigating. Stout v. State, 834 N.E.2d
707, 710 (Ind. Ct. App. 2005), trans. denied. The trial court is not required to give the
same weight as the defendant does to mitigating evidence. Fugate v. State, 608 N.E.2d
At the subsequent December 15, 2005 sentencing hearing, Howard-Lear indicated to the court
that he had not completed his GED.
The amended version of Ind. Code § 35-50-2-6 (Burns Code Ed. Supp. 2006) references the
“advisory sentence,” reflecting the April 25, 2005 changes made to the Indiana sentencing statutes in
response to Blakely. Since Howard-Lear committed the crime in question on September 5, 2003, before
the effective date of the amendments, we apply the version of the statute then in effect and refer instead to
the presumptive sentence. See Ind. Code § 35-50-2-6 (Burns Code Ed. Repl. 2004) (“A person who
commits a Class C felony shall be imprisoned for a fixed term of four (4) years, with not more than four
(4) years added for aggravating circumstances or not more than two (2) years subtracted for mitigating
1370, 1374 (Ind. 1993). A single aggravating circumstance may be sufficient to justify
an enhanced sentence. McNew v. State, 822 N.E.2d 1078, 1082 (Ind. Ct. App. 2005).
After finding Howard-Lear’s violation of Haney’s protective order to be an
aggravator and his lack of criminal history to be a mitigator, the court stated the
following in its sentencing order:
“After considering the pre-sentence investigation report, having read the
transcripts from prior proceedings, and the above factors the Court after
weighing the aggravating and mitigating circumstances, now finds the
defendant guilty of the amended charge of Battery, a Class C Felony. The
Court sentences the defendant to five (5) years in the Indiana Department
of Correction. Imposition of a reduced sentence or granting of probation
would depreciate the seriousness of the crime.” App. at 95.
In explaining its sentence to Howard-Lear, the court later specifically stated, “You have
an aggravated sentence because you violated the protective order.” 5 Sentencing Tr. at 30.
Howard-Lear claims it was an abuse of discretion for the trial court to attribute
such aggravating weight to his violation of the protective order in light of his lack of
criminal history. 6 We find no such abuse of discretion on that basis.
As the trial court found, the aggravator 7 that Howard-Lear had violated Haney’s
protective order merited serious weight because the circumstances indicate Howard-Lear
In a subsequent hearing, the court further clarified that it had decided against placing HowardLear on probation also due to his violation of Haney’s protective order.
Howard-Lear does not challenge the court’s consideration of the “depreciate the seriousness”
factor. We therefore do not address it.
The use of Howard-Lear’s violation of the protective order at the time of the instant crime as an
aggravator does not present Blakely concerns because, as we determined in the first appeal, Howard-Lear
admitted to such violation. Howard-Lear, slip op. at 5.
poses an ongoing threat to Haney. 8 The initial conviction in this case involved HowardLear battering Haney, a crime which at the time was a violation of her protective order
against him. Following Howard-Lear’s conviction, less than two months after his release
from serving eighteen months of his sentence, and while he was still on probation,
Howard-Lear again violated the protective order in what appeared to be a fairly
sophisticated ruse to come into contact with Haney again. For that violation he was
sentenced to 166 days incarceration in Illinois. Yet at the re-sentencing hearing in the
instant case, after serving extensive prison time in both Indiana and Illinois for crimes in
which he had victimized Haney, Howard-Lear nevertheless maintained that his attempts
to contact Haney were for her benefit only and that any fear she had of him was
attributable to her mental health rather than to his malice. Haney testified to her terror of
Howard-Lear, how she feels like a prisoner, and how she fears his coming back to “get”
her, which, she testified, he has proven he will do. Sentencing Tr. 5. We agree with the
trial court that Howard-Lear’s violation of the protective order was indeed a weighty
Further, we must note that although the court appeared to consider Howard-Lear’s
lack of criminal history as a mitigator, by the time Howard-Lear was re-sentenced, he had
There is some confusion as to whether the court considered both of Howard-Lear’s violations of
the protective order, or only the one occurring at the time of the instant offense. As Howard-Lear claims,
the court made the statement that it was aggravating the sentence due to the fact that Howard-Lear
violated the protective order “in order to commit this crime.” Sentencing Tr. at 39. The court made this
statement, however, after being erroneously “corrected” by defense counsel that there was only one
violation of the protective order rather than the actual two violations. Sentencing Tr. at 30. In any event,
the finding of a single violation of a protective order may serve as a proper aggravator. See Mitchem v.
State, 685 N.E.2d 671, 679 (Ind. 1997) (“The nature and circumstances of a crime may be considered an
acquired a criminal history consisting of a conviction in Illinois for again violating
Haney’s protective order, for which he had received a 166-day-sentence in the Cook
County Jail. Upon re-sentencing a defendant whose sentence has been set aside, a court
may take into consideration identifiable conduct by that defendant which occurred after
the imposition of the original sentence. See Ind. Post-Conviction Rule 1(10)(b), cited in
Hicks v. State, 729 N.E.2d 144, 146 (Ind. 2000). 9 While the trial court did not attribute
any criminal history to Howard-Lear, given the evidence of such criminal history and our
ability to consider it, we question the defendant’s position upon appeal that his “lack” of
criminal history merits more weight than the trial court apparently attributed to it. If
anything, we would consider the court’s weighing of this “mitigator” to be noticeably
lenient. It certainly does not weigh heavily counter to the substantial weight of HowardLear’s violation of the protective order.
Having found that the trial court engaged in an appropriate weighing process upon
re-sentencing Howard-Lear, we conclude it did not abuse its discretion by giving him a
five-year sentence with the Department of Correction for his conviction of battery.
The judgment of the trial court is affirmed.
ROBB, J., and BARNES, J., concur.
Indiana Post-Conviction Rule 1(10)(b) has been cited by our Supreme Court with approval in
the direct appeal context. Hicks, 729 N.E.2d at 146, cited in Fields v. State, 852 N.E.2d 1030, 1032 n.2
(Ind. Ct. App. 2006), trans. denied. This rule allows a court to consider such conduct and to impose a
more severe penalty than was originally imposed if the court indicates its reasoning on the record.
Howard-Lear was originally sentenced to six years and was subsequently re-sentenced to five years, so
this rule is applicable to the instant case only insofar as it demonstrates the court’s ability to consider
conduct by the defendant occurring after the imposition of the original sentence.