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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Aug 12 2009, 9:50 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARK EVERETT WATSON Terre Haute, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
PATSY M. HOFFMAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 84A04-0901-CR-41

APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Michael J. Lewis, Judge Cause No. 84D06-0608-FA-02690

August 12, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Patsy Hoffman appeals her sentence following her convictions for Robbery, as a Class B felony, and Battery, as a Class C felony, pursuant to a plea agreement. She presents several issues on appeal, but we address a single dispositive issue, namely, whether the trial court abused its discretion when it sentenced her. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY On November 3, 2008, Hoffman pleaded guilty, but mentally ill, to robbery, as a Class B felony, and battery, as a Class C felony. The factual basis for the plea was that on August 23, 2006, Hoffman and a friend brutally attacked and robbed Kenny Haynes. Hoffman repeatedly kicked Haynes in the head and stole his television. Haynes sustained serious injuries, including severe brain damage. sentencing open to the trial court's discretion. At sentencing, the trial court identified a single aggravator, namely, the severity of Haynes' injuries. And the trial court identified a single mitigator, namely, the number of months that Hoffman had spent in jail pending her guilty plea. The trial court stated that the aggravator outweighed the mitigator and imposed the following sentence: eighteen years for the Class B felony conviction and six years for the Class C felony conviction to run consecutively, for an aggregate executed sentence of twenty-four years. This appeal ensued. Hoffman's plea agreement left

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DISCUSSION AND DECISION Hoffman contends that the trial court abused its discretion when it sentenced her.1 Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). "An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. (quotation omitted). One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence--including a finding of aggravating and mitigating factors if any--but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record. Id. at 490-91. When, as here, an allegation is made that the trial court failed to find a mitigating factor, the defendant is required to establish that the mitigating evidence is both significant and clearly supported by the record. Id. at 493. Hoffman contends that the trial court abused its discretion when it did not assess any mitigating weight to her mental illness. A finding of mitigating circumstances lies within the trial court's discretion. Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995). The trial court is not obligated to explain why it did not find a factor to be significantly

Hoffman also contends that her convictions violate double jeopardy principles, but, as the State correctly points out, she waived that issue for review on direct appeal when she pleaded guilty to both offenses. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002).

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mitigating. Chambliss v. State, 746 N.E.2d 73, 78 (Ind. 2001). And the sentencing court is not required to place the same value on a mitigating circumstance as does the defendant. Beason v. State, 690 N.E.2d 277, 283-84 (Ind. 1998). Our supreme court has identified four factors "that bear on the weight, if any, that should be given to mental illness in sentencing." Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998) (citing Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)). Those factors are: (1) the extent of the defendant's inability to control his or her behavior due to the disorder or impairment; (2) overall limitations on functioning; (3) the duration of the mental illness; and (4) the extent of any nexus between the disorder or impairment and the commission of the crime. Id. In Archer, our supreme court held in part that: In a case where the court finds that defendant, who is mentally ill but able to distinguish right from wrong and therefore not legally insane, suffers from a serious mental illness, particularly a long-standing illness, or where that defendant's visions or voices led to bizarre behavior and played an integral part in the crime, the court may decide not to impose an enhanced sentence or may decide to otherwise accord significant weight to defendant's mental illness as a mitigating factor. On the other hand, where the mental illness is less severe and defendant appears to have more control over his thoughts and actions, or where the nexus between defendant's mental illness and the commission of the crime is less clear, the court may determine on the facts of a particular case that the mental illness warrants relatively little or no weight as a mitigating factor. 689 N.E.2d 678, 685 (footnotes omitted). Here, Hoffman documented for the trial court a significant history of mental illness. She submitted reports of two psychological examinations, one in 2007, by Dr. Michael Murphy, and a second examination in 2008, by Dr. Howard Wooden. In

addition, Hoffman submitted records of treatment she has undergone for her mental illness at the Hamilton Center. Those records reveal the following: in 2000, Hoffman
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was diagnosed with major depression, recurrent, severe, and without psychotic features, and she was prescribed Paxil and Xanax to treat her symptoms; in 2003, an annual assessment report shows that Hoffman continued to experience psychosis and severe depression, which had worsened since 2000, and she was prescribed Risperdal, Klonopin, and Wellbutrin; in 2004, Hoffman was diagnosed with psychotic disorder, and the psychologist noted that Hoffman's symptoms were consistent with that of a chronic mental illness; in 2006, Hoffman was diagnosed with schizoaffective disorder, polysubstance dependence, major depressive disorder, and opiate and benzodiazepine withdrawal, and Hoffman was admitted for detoxification; upon her discharge in 2006, Hoffman was prescribed Celexa and Abilify to treat auditory hallucinations and depression. In his report, Dr. Murphy concluded that Hoffman has "significant limitations in terms of her overall abilities" given her "borderline range of intelligence." Id. at 49. Hoffman's IQ is sixty-eight. Further, Dr. Murphy observed that Hoffman lacks a Dr. Murphy noted that Hoffman's

capacity for self-assertion and self-direction.

psychiatric history and description of symptoms are consistent with schizophrenia. Dr. Wooden's report includes the following summary and recommendations: Ms. Hoffman is a 35 year old female who shows evidence of fairly significant limitations in regard to intellectual capacity. She shows evidence of impaired and compromised judgment and tends to be the type of individual who is easily manipulated. Her deficits cognitively, however, are further compromised by her long-term history of polysubstance abuse which has in turn had a negative effect on her entire lifestyle. Individuals such as Ms. Hoffman, due to their poor self-concept, are easily led into a life of drug abuse and criminal activity and certainly these factors should be considered as far as sentencing is concerned for this individual. Very importantly, Ms. Hoffman has been incarcerated now for the past twenty5

six months which has serendipitously given her an opportunity to remain drug free and essentially heal herself from her long-term methamphetamine addiction. I feel that this is a very positive indicator for her. Ms. Hoffman does appear to be extremely well motivated to make changes in her life and no doubt her current twenty-six months of incarceration has been a wakeup call for her. Additionally, since Ms. Hoffman does face the potential of a fairly lengthy prison sentence, this too will serve, in my opinion, as a strong motivator for her to make positive changes in her life. Id. at 79 (emphasis added). As Justice Sullivan observed in Salyers v. State, 862 N.E.2d 650, 655 (Ind. 2007) (Sullivan, J. dissenting), our Supreme Court has regularly found that the mitigating weight attributable to guilty-butmentally-ill defendants warrants imposition of a presumptive sentence. See Crawford v. State, 770 N.E.2d 775, 782-83 (Ind. 2002) (reduction of defendant's 65-year sentence to the presumptive 55 years in part due to the "significant mitigating circumstance" of defendant's mental illness); Weeks v. State, 697 N.E.2d 28, 31 (Ind. 1998) (reduction of defendant's 60-year sentence to the presumptive sentence of 50 years due to defendant's mental illness); Gambill v. State, 675 N.E.2d 668, 677-78 (Ind. 1996) (defendant's mental illness was a substantial mitigator calling for the imposition of the presumptive sentence); Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind.1996) (finding an abuse of discretion where the trial court failed to consider defendant's mental illness as a mitigator; remanded for imposition of presumptive sentence); Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995) (finding a relationship between defendant's mental illness and the commission of the crime; remanded for imposition of presumptive sentence). Here, Hoffman pleaded guilty but mentally ill, and, despite the thorough documentation of Hoffman's significant history of mental illness, the trial court declined to identify her mental illness as a mitigator and imposed a twenty-four-year sentence. We hold that the trial court's failure to identify this substantial mitigator constitutes an abuse of discretion. See Anglemyer, 868 N.E.2d at 490-91 (holding trial court abuses its discretion if sentencing statement omits reasons that are clearly supported by the record
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and advanced for consideration). The first three factors of the Weeks test are clearly supported by the evidence here, and with respect to the fourth factor, a reasonable inference can be made that a nexus exists between her mental illness and the commission of the crimes. Regardless, the Weeks factors are guidelines that a court should consider at sentencing. There is no requirement that a defendant satisfy all four factors to justify mitigation based on mental illness. We recognize that Hoffman committed a particularly heinous crime. Haynes sustained severe, permanent injuries as a direct result of Hoffman's criminal conduct, and Haynes' life has changed forever. However, we follow the guidance of our Supreme Court in Archer, where the court held with respect to the circumstances in that case: [a]lthough there are several aggravating circumstances which the court properly found, and although we agree that the facts in this case are "egregious," defendant's mental illness should warrant at least some offset to these aggravating circumstances. We conclude that, because defendant's mental illness is well-documented and long-standing and because it apparently limits his ability to function, it is entitled to some mitigating weight and warrants a reduction of defendant's total sentence. 689 N.E.2d at 686 (emphasis added).2 Likewise, here, we conclude that Hoffman's documented history of mental illness warrants a reduction in her sentence. In light of Hoffman's low IQ, her well-documented history of mental illness, and her lack of criminal history,3 we reverse and remand to the trial court with instructions to impose the following sentence: fourteen years for the B

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In Archer, our Supreme Court reduced the defendant's total sentence from 165 years to 125

years. Hoffman has no juvenile history, and, while she had three misdemeanor charges as an adult, all three charges were dismissed.
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felony conviction, and the advisory sentence of four years for the C felony conviction. See, e.g., Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996) (holding trial court abused its discretion when it failed to consider defendant's mental illness as a mitigator where two psychiatrists testified defendant was mentally ill at time of offense and jury found defendant guilty but mentally ill; remanded for imposition of presumptive sentence); Biehl v. State, 738 N.E.2d 337, 340 (Ind. Ct. App. 2000) (reducing defendant's sentence from thirty years to twenty years for involuntary manslaughter; holding trial court's failure to assign any mitigating weight to defendant's complete lack of criminal history and severe and longstanding mental illness resulted in manifestly unreasonable sentence). Those sentences shall run concurrently, for a total aggregate term of fourteen years.4 See Ind. Appellate Rule 7(B). On remand, the trial court shall not conduct another hearing, but shall enter an order and make any other record entries necessary to impose the revised sentence. Reversed and remanded with instructions. KIRSCH, J., concurs. BARNES, J., concurs and dissents with separate opinion.

Hoffman also contends that the trial court abused its discretion when it did not identify other proffered mitigators, but we find the issue of her mental illness dispositive and do not address the other proffered mitigators.

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IN THE COURT OF APPEALS OF INDIANA
PATSY M. HOFFMAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 84A04-0901-CR-41

BARNES, Judge, concurring and dissenting

I concur with the majority that the trial court abused its discretion in completely failing to mention Hoffman's mental illness as a possible mitigating circumstance. There was ample evidence of such illness that I believe the trial court was required to at least acknowledge it on the record. However, unlike the majority, I would remand to the trial court for further proceedings. Remanding to the trial court for it to reconsider a sentence in light of an overlooked mitigator always is an option. See, e.g., Anglemyer, 868 N.E.2d at 491. I would provide the trial court with that opportunity in this case, particularly given that the facts here clearly would seem to have supported a conviction for Class A felony robbery
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resulting in serious bodily injury and a presumptive thirty-year sentence that would have entailed. Thus, I dissent from the majority's decision to revise Hoffman's aggregate sentence to fourteen years.

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