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Morrell v. State

Court of Appeals of Indiana

March 21, 2019

Shawn P. Morrell, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

          OPINION ON REHEARING

          SHARPNACK, SENIOR JUDGE.

         Statement of the Case

         [¶1] 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.

         Discussion and Decision

         [¶2] 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.

         [¶3] During the trial court's oral sentencing statement, the court set forth the following as the first aggravating circumstance:

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.

         [¶4] 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 ...

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