ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent Westerfeld Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
JERRY A. BONDS, )
v. ) 49S00-9902-CR-86
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9708-CF-116824
On Direct Appeal
June 9, 2000
The defendant, Jerry A. Bonds, pleaded guilty to murder
See footnote and conspiracy to commit
robbery as a class A felony.See footnote The trial court sentenced the defendant
to sixty-five years for the murder and twenty years for conspiracy as a
class B felony, to be served consecutively. We deem the defendant's appeal
to present the following two claims: (1) that the trial court improperly
found aggravating circumstances; and (2) that his sentence is manifestly unreasonable.
The defendant contends that the trial court relied on improper aggravating circumstances to
enhance his sentences and to order them served consecutively. The trial court
listed four aggravating circumstances: (1) the defendant recruited others in the planning
and commission of the offense; (2) the defendant's role in the offense was
that he was the one who actually went inside the store and committed
the robbery and the killing; (3) a life was taken during the commission
of the robbery; and (4) the money that was robbed from the store
was obtained for purposes of satisfying a drug debt.
In general, sentencing determinations are within the trial court's discretion and are governed
by Indiana Code section 35-38-1-7.1.
See Thacker v. State, 709 N.E.2d 3,
9 (Ind. 1999); Harris v. State, 659 N.E.2d 522, 527 (Ind. 1995).
We review trial court sentencing decisions only for abuse of discretion, including a
trial court's decisions to increase or decrease the presumptive sentence because of aggravating
or mitigating circumstances and to run the sentences concurrently or consecutively. See
Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997); Smith v. State, 675
N.E.2d 693, 697 (Ind. 1996); Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.
1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).
If a trial court relies upon aggravating or mitigating circumstances to enhance
or reduce the presumptive sentence, it must (1) identify all significant mitigating and
aggravating circumstances; (2) state the specific reason why each circumstance is determined to
be mitigating or aggravating; and (3) articulate the court's evaluation and balancing of
the circumstances. Harris, 659 N.E.2d at 527-28. We have consistently held
that one aggravator alone is sufficient to warrant an enhanced sentence. Fugate
v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). The same circumstance may
be used to both enhance a sentence and to impose a consecutive sentence.
Thacker, 709 N.E.2d at 10; Holmes v. State, 642 N.E.2d 970, 973
(Ind. 1994); Marshall v. State, 621 N.E.2d 308, 322 (Ind. 1993); McCollum v.
State, 582 N.E.2d 804, 817 (Ind. 1991). When a trial court improperly
applies an aggravator, but other valid aggravating circumstances exist, a sentence enhancement may
still be upheld. Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998).
The "nature and circumstances" of a crime is a proper aggravator. See
Ind. Code § 35-38-1-7.1 (the nature and circumstances of a crime shall be
considered in determining what sentence to impose); Thacker, 709 N.E.2d at 10.
While a trial court may not use a factor constituting a material element
of an offense as an aggravating circumstance, Angleton v. State, 714 N.E.2d 156,
160 (Ind. 1999); Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997); Holmes,
642 N.E.2d at 972, a court may look to the particularized circumstances of
the criminal act, Ellis v. State, 707 N.E.2d 797, 804-05 (Ind. 1999); Smith,
675 N.E.2d at 698; Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994);
Williams v. State, 619 N.E.2d 569, 573 (Ind. 1993). Although the particular
manner in which a crime is committed may constitute an aggravating factor, Jackson
v. State, 697 N.E.2d 53, 56 (Ind. 1998); Johnson, 687 N.E.2d at 347;
Widener v. State, 659 N.E.2d 529, 532 (Ind. 1995), a trial court should
specify why a defendant deserves an enhanced sentence under the particular circumstances, Ellis,
707 N.E.2d at 805; Wethington v. State, 560 N.E.2d 496, 510 (Ind. 1990).
The defendant contends that the first aggravating circumstance, that the defendant recruited others,
is not appropriate because the record contains no evidence or information that would
support the finding that the defendant recruited the other participants in the crimes
and because this factor merely restates a material element of the conspiracy offense
and the robbery element of the felony murder offense. We note that
the defendant submitted to the trial court the following account in the "Defendant's
Statement" portion of his Pre-Sentencing Memorandum:
At first it was just me and Cameron, my girlfriend. Later, Bernard
(McGuire) came over and left. He came back about 4:30 or 5:00
p.m. He said he needed some money for a car payment or
car insurance, something like that. I told him I didn't have any,
even though I did. I didn't think he'd pay me back if
I gave it to him. He asked if Bacon (Veronica Spencer) might
have money. I told him he'd have to ask her about that.
So we went to her apartment. It's close to mine.
Bacon told Bernard she couldn't write anymore checks because they wasn't going through
no more. Marilyn was already there. That's when Bacon said she
knew a place we could rob to get some money. When Ahmed
(Bellemy) came over, we asked him if he wanted to help us rob
the Chinese store across the street. He said, "No," but that he'd
look out for us. Bacon said she couldn't come but was going
to send Marilyn over to help as a look out too.
Record at 130-31. The defendant's own statement here indicates that he was
involved in recruiting other participants in the crime. Furthermore, the defendant's recruiting
of other participants is not a material element of murder or conspiracy, but
rather constitutes the nature and circumstances of the crimes. The trial court
did not abuse its discretion.
Regarding the second aggravator, the defendant's role as the primary actor in the
robbery and the killing, the defendant contends that this aggravator is improper because
it merely restates material elements of the offensesthe defendant went inside the store
and committed the robbery and the killing. We note that the record
clearly establishes the defendant's role as the primary actor in that, among the
participants in the conspiracy, the defendant was the one who actually entered the
store, committed the robbery, and killed the victim. The defendant's role as
the primary actor is not a material element of either crime but constitutes
the nature and circumstances of the crimes. The trial court did not
abuse its discretion.
Regarding the third aggravator, a life was taken during the commission of the
robbery, the defendant contends that this aggravator is improper because it merely restates
material elements of the offenses. Killing another person during the commission of
a robbery are material elements of the offense of felony murder by robbery,
and thus the taking of a life cannot be used to enhance the
sentence for murder. As to the conspiracy offense, the defendant entered a
plea of guilty to it as a class A felony, which requires resulting
serious bodily injury to any person other than the defendant. The sentencing
court, after considering the mitigating factors and hearing argument regarding double jeopardy considerations
involving the serious bodily injury element, sentenced the defendant for conspiracy as a
class B felony, which does not require serious bodily injury. The class
B felony sentence was fully enhanced, however. The sentencing court erred in
considering the killing of another person as an aggravating factor.
Regarding the fourth aggravator, that the money taken from the store was obtained
for purposes of satisfying a drug debt, the defendant contends that this aggravator
is inappropriate because this circumstance merely restates a material element of the conspiracy
offense and the robbery element of the felony murder offense. The purpose
for committing this robbery is not a material element of either the murder
offense or the conspiracy offense, but rather constitutes the nature and circumstances of
the crimes and is not improper for this reason.
The defendant also contends that this fourth aggravator is inappropriate because the record
contains no evidence or information that would support the finding that the purpose
of the robbery was to obtain money to satisfy a drug debt.
During its pronouncement of the sentence and explanation of sentencing factors, the sentencing
court declared that it was considering testimony presented during a previous trial before
the same judge involving the defendant's accomplice, Bernard McGuire, and stated that "the
money that was robbed from the mart that day was obtained for purposes
of satisfying a drug debt." Record at 275. The defendant argues
that the trial court erred in considering evidence from the McGuire trial, which
was not presented during the defendant's sentencing proceeding, in violation of his due
process rights under the Fourteenth Amendment to the U.S. Constitution and state statutory
As a general rule, a trial court may not take judicial notice of
its own records in another case previously before the court, even on a
related subject and with related parties.
State v. Hicks, 525 N.E.2d 316,
317 (Ind. 1988); Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985); Kennedy
v. Jester, 700 N.E.2d 1170, 1173 (Ind. Ct. App. 1998); Woods, v. State,
654 N.E.2d 1153, 1155 (Ind. Ct. App. 1995); State v. Peters, 637 N.E.2d
145, 150 n.3 (Ind. Ct. App. 1994); Bane v. State, 579 N.E.2d 1339,
1340-41 (Ind. Ct. App. 1991).
Even if the trial court erred in considering the third and fourth aggravating
circumstances, two valid aggravating circumstances remain: the defendant's recruitment of others in
the planning and commission of the offense, and his role as the primary
actor in committing the robbery and the killing. Because the trial court's
decisions to enhance the felony murder and conspiracy sentences and to impose consecutive
sentences are thus supported by proper aggravating circumstances, we decline to reverse.
Manifestly Unreasonable Sentence
Urging that there are no proper aggravating circumstances surrounding the nature of the
offense and the character of the offender and that the trial court found
six significant mitigating circumstances, which the defendant contends are overwhelming, the defendant argues
that the enhanced sentence of sixty-five years for the murder and the consecutive-running
enhanced sentence of twenty years for the conspiracy to commit robbery are manifestly
Sentencing is normally left to the sound discretion of the trial court.
Elmore v. State, 657 N.E.2d 1216, 1219 (Ind. 1995). Although this Court
is empowered to review and revise criminal sentences, we will not do so
unless the sentence is "'manifestly unreasonable in light of the nature of the
offense and the character of the offender.'" Prowell v. State, 687 N.E.2d
563, 568 (Ind. 1997) (quoting Ind. Appellate Rule 17(B)), cert. denied 525 U.S.
841, 119 S.Ct. 104, 142 L.Ed.2d 83 (1998). Additionally, "'the issue is
not whether in our judgment the sentence is unreasonable, but whether it is
clearly, plainly, and obviously so.'" Thacker, 709 N.E.2d at 10 (quoting Brown
v. State, 698 N.E.2d 779, 783-84 (Ind. 1998)); Prowell, 687 N.E.2d at 568.
The trial court found various mitigating circumstances: the defendant showed acceptance of
responsibility for his criminal conduct and entered a plea of guilty, appeared remorseful
for his conduct, admitted his involvement immediately to the police, lacked a criminal
history, provided testimony at the trial of a co-defendant, and had a strong
history of family support. We consider these along with the valid aggravating
circumstances. Considering the nature of the offenses and the character of the
offender, we are not convinced that the sentence in this case is clearly,
plainly, and obviously unreasonable. We decline to revise the sentence.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J., concurs in
Ind. Code § 35-42-1-1.
Ind. Code § 35-41-5-2; Ind. Code § 35-42-5-1.
Exceptions to this general rule have been recognized. See, e.g., State
v. Hicks, 525 N.E.2d 316, 317-18 (Ind. 1988); Szymenski v. State, 500 N.E.2d
213, 215 (Ind. Ct. App. 1986).