Lockard v. State , 600 N.E.2d 985 ( 1992 )

STATEMENT OF CASE

RATLIFF, Judge.

Steven Eugene Lockard appeals from his convictions for seven (7) counts of Confinement,² Class C felonies. We affirm.

ISSUES

We restate the issues on appeal as:

1. Was the forty-nine (49) year sentence imposed by the trial court manifestly unreasonable?

2, Did the trial court err in imposing consecutive sentences?

8. Did the trial court err in denying Lockard's motion to enforce the plea agreement?

FACTS

Lockard was charged with seventeen (17) counts of child molesting, seven (7) counts of confinement, and eight (8) counts of intimidation. Pursuant to a plea agreement, Lockard pleaded guilty to the confinement charges. Under the terms of the plea agreement, Lockard was required to give a clean-up statement and "pass a polygraph examination." Record at 80.

Lockard gave two clean-up statements. Record at 287-88. On February 14, 1992, Lockard submitted to a polygraph examination administered by Officer Roy Gross of the Tippecanoe County Sheriff's Office. Lockard was required to close his eyes during the examination. Lockard failed the polygraph examination and Officer Gross opined that Lockard had not told the complete truth. Record at 296-98. The trial court found: "that the defendant [Lockard] did not pass the polygraph; that he was deceptive; and the Court is not bound under paragraph two of the plea agreement which had a cap [on sentencing]." Record at 184. The trial court judge sentenced Lockard to seven (7) years on each of the seven (7) counts with one (1) year each suspended, such sentences to be served consecutively. Lockard now appeals.

DISCUSSION AND DECISION

Issue One

Lockard argues that the trial court's imposition of a forty-nine (49) year sentence for his convictions of seven (7) counts of confinement was manifestly unreasonable. We find no abuse of the trial court's discretion.

In reviewing a sentence, we will not reverse a sentence authorized by statute unless it is found to be manifestly unreasonable. Kail v. State (1988), Ind.App., 528 N.E.2d 799, 810, trans. denied. A sentence is manifestly unreasonable only if no reasonable person could find the sentence appropriate to the nature of the offense and the character of the offender. Id. Further, it is within the trial court's discretion to increase or decrease the presumptive sentence based on aggravating or mitigating circumstances. Wilson v. State (1984), Ind., 465 N.E.2d 717, 721. The presumptive sentence for a Class C felony under IND.CODE § 35-50-2-6 is four (4) years' imprisonment with not more than four (4) years added for aggravating circumstances or two (2) years subtracted for mitigating circumstances.

Lockard was sentenced to seven (7) years for each of the Class C felony convictions. Hence, Lockard's sentences are authorized by statute. In enhancing Lockard's sentences from the presumptive four (4) years' imprisonment, the sentencing transcript shows that the trial court carefully considered both aggravating and mitigating circumstances. See Record at 315-20. As mitigating, the trial court considered that Lockard had been molested as a child; that he had worked regularly; and that he was remorseful. Record at 315. However, the trial court also found several aggravating factors. The court considered admissions in Lockard's clean-up statements and the presentence report that he repeatedly molested his step-daughters and threatened them. Record at 98-94 and 316-18. The court found that Lockard needed correctional or rehabilitative treatment which could best be provided by a penal institution. Record at 819. The court also considered the likelihood of reoccurrence and that the imposition of a reduced sentence would depreciate the seriousness of the crime. Record at 818-19.

Lockard improperly argues that evidence of the child molestings should not have been considered. A sentencing judge does not err in considering prior criminal conduct which has not been reduced to conviction and evidence of prior uncharged crimes. Hensley v. State (1991), Ind.App., 573 N.E.2d 913, 917. Lockard's admission of child molesting was appropriately considered by the trial court in determining his sentence. Lockard has failed to show that the trial court abused its discretion or that his total sentence was manifestly unreasonable. See Stewart v. State (1988), Ind., 531 N.E.2d 1146, 1150 (one aggravating cireum-stance will support sentence enhancement).

Issue Two

Lockard also contends that the trial court committed an error of law in ordering his sentences to be served consecutively. We disagree.

A trial court is vested with wide discretion to determine whether the presumptive sentence will be enhanced because of aggravating factors involving the particular defendant or crime, and whether the terms of imprisonment stemming from multiple convictions shall be served concurrently or consecutively. Shippen v. State (1985), Ind., 477 N.E.2d 903, 905. Therefore, a trial court may, on consideration of relevant facts and information, enhance the basic penalties, impose consecutive sentences, or both. Id. The decision to enhance the presumptive sentence or to impose consecutive sentences may be based upon the same aggravating circumstances. Maynard v. State (1987), Ind., 513 N.E.2d 641, 648. As we have previously noted, the trial court properly considered various aggravating factors, including Lockard's admission of child molesting and his prior criminal record. See Issue One.

Lockard's contention that the trial court erred in failing to consider his lack of prior history of criminal activity as a mitigating factor is meritless. As we explained in Issue One, a court does not err in considering as aggravating circumstances prior criminal conduct which has not been reduced to conviction and evidence of prior uncharged crimes. See Hensley, 573 N.E.2d at 917. Lockard by his own admission was previously "arrested for writing bad checks and for arguing with his wife." Appellant's Brief at 14. A criminal charge of invasion of privacy was pending against him. See Record at 85. Moreover, Lock-ard had been originally arrested and charged with seventeen (17) counts of child molesting and eight (8) counts of intimidation besides the seven (7) counts of confinement. Contrary to Lockard's assertion, he did, in fact, have a history of criminal activity properly considered by the trial court as an aggravating circumstance. There was no abuse of discretion in the trial court's imposition of consecutive sentences.

Issue Three

Finally, Lockard argues that the trial court erred in denying his motion to enforce the plea agreement. He contends the reliance on the polygraph examiner's opinion that he failed the examination was improper and not sufficient to invalidate the plea agreement.

A plea agreement should not be lightly disregarded. Spivey v. State (1990), Ind.App., 553 N.E.2d 508, 509. However, if a court is to enforce the agreement, a defendant must honor his obligations under the agreement. Id. at 510. Here, the plea agreement specifically required Lockard to pass a polygraph examination to demonstrate his truthfulness in his clean-up statement before the State would be bound by the sentence offer in the agreement. Record at 80-81. At the sentencing hearing Officer Gross, the polygraph examiner, stated that Lockard had failed the examination because Lockard was not completely truthful. Record at 296-98. Since it was a requirement that Lockard take and pass a polygraph examination, the trial court did not err in denying Lockard's motion. Lockard failed to meet his obligations under the plea agreement and should, therefore, not receive the benefits from it. See Spivey, 558 N.E.2d at 508.

Affirmed.

ROBERTSON, J., concurs. SULLIVAN, J., concurs with separate opinion.

2 . IND.CODE § 35-42-3-3.