Alonzo C. Kirkwood v. State of Indiana (NFP)

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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: PAUL D. STANKO Appellate Public Defender Crown Point, Indiana STEVE CARTER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ALONZO C. KIRKWOOD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 45A05-0604-CR-208 APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Richard J. Conroy, Judge Cause No. 45G03-9505-CF-120 November 17, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION NAJAM, Judge STATEMENT OF THE CASE Alonzo Kirkwood appeals his sentence following his conviction for Rape, as a Class A felony, pursuant to a plea agreement. He presents a single issue for our review, namely, whether the trial court abused its discretion when it identified and weighed aggravators and mitigators and imposed an enhanced sentence. We affirm. FACTS AND PROCEDURAL HISTORY On September 2, 1994, Kirkwood raped A.G. three times. The State charged Kirkwood with rape, as a Class A felony; criminal deviate conduct, as a Class A felony; robbery, as a Class C felony; confinement, as a Class D felony; and being an habitual offender. Kirkwood ultimately pleaded guilty to rape, as a Class A felony, and the State dismissed the other charges. The plea agreement left sentencing open to the trial court s discretion. The trial court imposed a forty-year sentence and ordered it to run consecutive to Kirkwood s sentence in Cause Number 45G03-9503-CF-00067. In 2006, Kirkwood filed a petition to file a belated notice of appeal, which the trial court granted. This appeal ensued. DISCUSSION AND DECISION Kirkwood contends that the trial court abused its discretion when it imposed an enhanced sentence. In particular, Kirkwood maintains that the trial court erred when it identified as an aggravator that he was on parole at the time of the offense. Kirkwood also contends that the trial court should have assessed more mitigating weight to his 2 guilty plea. He asserts that a proper weighing of the valid aggravators and mitigator should result in the imposition of a lesser sentence. We cannot agree. Sentencing decisions lie within the sound discretion of the trial court and are reviewed only for an abuse of that discretion. Powell v. State, 751 N.E.2d 311, 314 (Ind. Ct. App. 2001). If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B); McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001). At sentencing, the trial court identified the following aggravators: (1) Kirkwood was on parole at the time of the offense; (2) his long history of criminal activity, including five prior felonies; (3) he is in need of correctional treatment; (4) the risk that he will commit another crime; (5) A.G. suffered emotional injury and recommended an aggravated sentence; and (6) the nature and circumstances of the crime, that is, he raped A.G. more than once and forced her to submit to criminal deviate conduct. The trial court identified a single mitigator, namely, his guilty plea. The trial court found that the aggravators outweighed the mitigator and imposed an enhanced sentence of forty years. 1 The trial court ordered that the sentence run consecutive to Kirkwood s forty-year sentence in Cause Number 45G03-9503-CF-00067. Kirkwood first contends that the trial court erred when it considered his parole status as an aggravator. He maintains that the State did not present any evidence that he 1 At the time of the instant offense, the presumptive sentence for a Class A felony was twentyfive years, with up to twenty years added for aggravating circumstances. See Ind. Code § 35-50-2-4 (1994). The statute was amended, effective July 1995, to increase the presumptive sentence to thirty years. 3 was on parole at the time of the offense. But the presentence investigation report shows that he was paroled on July 12, 1993 and that a notice of parole violation was filed on March 5, 1996, the date of the plea agreement in this case. Because there is evidence showing that Kirkwood was on parole at the time of this offense, the trial court did not err when it found that fact aggravating. 2 See, e.g., Ryle v. State, 842 N.E.2d 320, 325 (Ind. 2006) (holding trial court properly considered probationary status at time of offense as indicated in presentence report as aggravator in enhancing sentence), cert. denied, --S.Ct.---, 2006 WL 1523008 (Oct. 2, 2006). Kirkwood also contends that the trial court should have assessed more mitigating weight to his guilty plea. It is well settled that the finding of mitigating circumstances is within the discretion of the trial court. Hackett v. State, 716 N.E.2d 1273, 1277 (Ind. 1999). The trial court is not obligated to explain why it did not find a factor to be significantly mitigating. Chambliss v. State, 746 N.E.2d 73, 78 (Ind. 2001). Here, Kirkwood cannot demonstrate that his guilty plea is entitled to significant mitigating weight because the State expended resources preparing for trial over a ninemonth period. More importantly, Kirkwood received a substantial benefit in that the State dismissed the criminal deviate conduct, robbery, confinement, and habitual offender charges in exchange for his plea. See Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005) (holding guilty plea not worthy of significant mitigation where defendant receives substantial benefit), trans. denied. We cannot say that the trial court abused its discretion when it did not assess more mitigating weight to Kirkwood s guilty plea. 2 Kirkwood does not challenge the validity of any of the other aggravators. 4 In light of the myriad of aggravators the trial court identified, including Kirkwood s extensive criminal history, and given the heinous nature of the offense, we cannot say that the trial court abused its discretion when it imposed a forty-year sentence. In addition, the trial court did not abuse its discretion when it ordered the sentence to run consecutive to the sentence in Cause Number 45G03-9503-CF-00067. See Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006) (noting both sentence enhancement and imposition of consecutive sentences may be dependent upon same aggravators and single aggravator is sufficient to support consecutive sentences). Affirmed. BAKER, J., and DARDEN, J., concur. 5

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