Appeal from the Marion Superior Court, Criminal Division 22, No. 49G22-1106-FA-045521. The Honorable Anne Flannelly, Commissioner. On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1301-CR-77.
ATTORNEYS FOR APPELLANT: Ruth Ann Johnson, Deputy Public Defender; Victoria L. Bailey, Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Andrew Falk, Deputy Attorney General, Indianapolis, Indiana.
Rucker, Justice. Dickson, C.J., and David, Massa and Rush, JJ., concur.
Under terms of a plea agreement defendant was convicted of robbery and criminal deviate conduct. Alleging the trial court abused its discretion in imposing the sentence defendant appealed. We affirm the judgment of the trial court.
Facts and Procedural History
During the late evening to early morning hours of June 22-23, 2011 then eighteen-year-old Joshua Gomillia was spending time with, among others, two of his friends: Lebronze Myles and Wendell Carter. At some point during the night Gomillia consumed several Xanax pills. His friend Carter was gambling and lost a lot of money. So the trio decided to commit a robbery to recoup some of the losses. Carter drove Myles and Gomillia to a residence in Indianapolis that Gomillia selected. The resident, E.K. who was at home at the time, had risen around 5:00 a.m. and was preparing to go to work. Hearing the doorbell ring E.K. opened the door slightly and Gomillia, face covered and armed with a handgun, forced his way into E.K.'s home. Carter followed with his face covered as well. Gomillia demanded money and jewelry, and holding the handgun to E.K.'s temple forced E.K. to perform fellatio on him. Afterwards Carter forced E.K. to do the same. Gomillia then began to force E.K. from the kitchen toward the bedroom threatening to rape her. E.K. attempted to stop any further sexual assault by declaring that she had a pacemaker, to which Gomillia responded, " don't give me a reason to make you use that pacemaker." State's Ex. 1. Thereafter Myles also entered E.K.'s home and encouraged the group to leave--apparently daybreak had begun. The trio ransacked the house taking several items of E.K.'s personal property including an ATM card, two television sets, a laptop computer, and a pair of earrings. Gomillia and Myles then left the house together and later went to a filling station where the ATM card was used to purchase gas and candy. Carter left the house separately in E.K's Saturn automobile and was apprehended shortly thereafter.
On June 28, 2011, the State charged Gomillia, Myles, and Carter with Count I criminal deviate conduct as a class A felony; Count II criminal deviate conduct as a class A felony; Count III robbery as a class B felony; Count IV burglary as a class B felony; Count V criminal confinement as a class B felony; and Count VI auto theft as a class D felony. Thereafter Gomillia entered an agreement with the State in which he agreed to plead guilty to one count of class A felony criminal deviate conduct and class B felony robbery. As a part of the plea agreement the State dismissed the remaining charges. Gomillia also agreed to cooperate with the State in the prosecution of Myles and Carter. Further, the parties agreed the executed portion of the sentence would not exceed forty years.
At the sentencing hearing the trial court took into account, among other things, over twenty letters from friends and relatives written in support of Gomillia. The trial court also heard testimony from Gomillia's mother, father, aunt and uncle essentially attesting to Gomillia's good character, strong family support, and that but for his consumption of drugs and alcohol that night these crimes would never have occurred. In imposing sentence the trial court found as mitigating factors that Gomillia accepted responsibility for his crimes, was remorseful, had no prior convictions, and had cooperated with the prosecution. In aggravation the trial court noted " the circumstances of this crime," Tr. at 60, including the terror Gomillia inspired in the victim. In particular the court observed:
[T]he circumstances of this crime . . . far outweigh the mitigating circumstances in this case. Two young, strong, men force their way into this lady's house. They change her life forever. They are both armed, and that is an element of the crime, so that basically is not an aggravator. But two strong, young, [sic] men force their way into this lady's home with a third colleague out in the car who gets worried about the sun coming up and you had better get out of there. The threats to this lady, the terror that you inspired in her, the whole circumstance of this crime, an aggravator that substantially outweigh the mitigators that I find.
Tr. at 60-61. The trial court also noted Gomillia's leadership role in the events of that night: " [Y]ou basically . . . led this event. You go into that house first. You pick the house. . . . You decide that you want some sex that night and your colleague willingly takes part but you led the whole thing." Tr. at 61. Concluding that the aggravating factors " substantially outweigh" the mitigating factors, Tr. at 61, the trial court sentenced Gomillia to a term of forty-five years for the criminal deviate conduct conviction with five years suspended; and a term of ten years for the robbery conviction to be served concurrently for a total executed term of forty years.
Gomillia appealed contending the trial court abused its discretion in imposing sentence. Specifically Gomillia argued: (1) The trial court improperly relied on evidence outside the record in imposing sentence, and (2) The trial court improperly found as an aggravating factor the " nature and circumstances" of the crime in that " the circumstances articulated by the trial court were essentially elements of the offenses." Br. of Appellant at 4. The Court of Appeals rejected both arguments. On this latter point, the Court of Appeals cited this Court's opinion in Pedraza v. State,887 N.E.2d 77 (Ind. 2008) for the proposition that relying on an element of the offense as an aggravating factor is no longer prohibited. See Gomillia v. State, 993 N.E.2d ...