Shawn P. Morrell, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Tippecanoe Circuit Court No. 79C01-1711-F5-151. The
Honorable Donald L. Daniel, Senior Judge
Attorney for Appellant Brian A. Karle Ball Eggleston, PC
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
OPINION ON REHEARING
SHARPNACK, SENIOR JUDGE.
of the Case
Shawn P. Morrell appealed from the sentence imposed by the
trial court after his conviction of one count of domestic
battery. We affirmed the trial court's decision in a
memorandum decision, and later granted Morrell's request
for publication of the opinion. Morrell v. State,
18A-CR-1282, 2019 WL 238136, slip op. at *6 (Ind.Ct.App.
January 17, 2019). Morrell now petitions for rehearing,
contending that this Court's opinion did not address
clearly the issue involving the use of nonadjudicated
juvenile contacts as an aggravating circumstance. On
reflection, we agree and grant the petition for the sole
purpose of clarifying the disposition of that issue.
In our original opinion, we addressed Morrell's argument
that the trial court had abused its discretion by considering
his juvenile history as an aggravating circumstance. He had
argued that the trial court should not have included in his
criminal history aggravator any juvenile contacts with the
justice system not resulting in an adjudication. We agree.
During the trial court's oral sentencing statement, the
court set forth the following as the first aggravating
Conviction having been entered against Shawn Patrick Morrell
on Count 1, Domestic battery, a level 5 felony the court now
finds that an aggravating circumstance is the defendant's
criminal history. The court notes three juvenile
adjudications, two other juvenile contacts, three felony
convictions, two misdemeanor convictions. Seven cases which
have unknown disposition. At least one failure to appear and
two pending petitions to revoke probation.
Tr. p. 88.
In Day v. State, Chief Justice Shepard, writing for
the majority, stated as follows:
In sentencing Day, the trial court relied on prior
convictions and listed all Day's adult convictions and
the "various offenses . . . disposed of . . . while you
were a juvenile" and declared that these all involved
sexual violence against females. While it is possible that
the sentencing judge knew about these juvenile offenses
because he presided over them, the presentence report and the
rest of the record before the trial court neither revealed
any facts about the events constituting Day's juvenile
history nor demonstrated any adjudications.
The trial court's reliance on the available juvenile
record was error. The details of criminal activity may be
used to demonstrate a history of criminal activity when a
juvenile court has determined that those acts were committed.
When a juvenile proceeding ends without a disposition, the
mere fact that a petition was filed alleging delinquency does
not suffice as proof of a criminal history. Indeed, even when
a juvenile court has made a determination of
delinquency, only the acts committed by the juvenile may
constitute a criminal history to support enhancement of a
sentence. An adjudication of delinquency is not a fact that
can be used by a sentencing court to enhance a criminal
sentence. Concurring in denial of rehearing I emphasized that
the adjudication ...