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10/22/87 KENNETH WRAY v. STATE INDIANA

Filed: October 22, 1987.

KENNETH WRAY, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION, ROOM THREE, The Honorable John R. Barney, Jr., Judge, Cause No. CR78-425D

Sullivan, J., Ratliff, C.j., and Shields, P. J.

Author: Sullivan

SULLIVAN, J.

Kenneth Wray appeals the denial of his petition for post-conviction relief.

We affirm.

Wray argues that the trial court failed to state sufficient reasons for enhancing his sentence for voluntary manslaughter to the maximum of 20 years. The trial court made the following findings in sentencing Wray:

"1. Defendant has prior record.

2. Escaped twice from Boy's School.

3. Thirty-two (32) blows to the head of the victim.

4. Fired four (4) shots to the abdomen of the victim.

THEREFORE, the Court finds from these facts that more than the presumptive sentence should be imposed for the following reasons: Anything less would depreciate the seriousness of the crime." Record at 44.

Wray first argues that the trial court's finding that a lesser sentence would depreciate the seriousness of the crime is not a proper aggravating circumstance for imposition of an enhanced sentence. Wray contends that under the language of I.C. 35-38-1-7(b)(4) (Burns Code Ed. Supp. 1987), depreciation of the seriousness of the crime is a proper consideration only when the presumptive sentence is imposed in lieu of a reduced or suspended sentence or probation.

In Evans v. State (1986) Ind., 497 N.E.2d 919, our Supreme Court dealt with an identical argument and held:

"The list of aggravating factors contained in Ind. Code ยง 35-38-1-7 (Burns 1985 Repl.) includes: 'Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.' As appellant suggests, that statutory factor appears to be applicable ...


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