                                                                         FILED
                                                                     Dec 04 2018, 3:24 pm

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court



                          IN THE

  Indiana Supreme Court
        Supreme Court Case No. 31S00-1703-LW-134

                Kevin Andrew Schuler
                     Appellant (Defendant),

                               –v–

                     State of Indiana
                       Appellee (Plaintiff).


    Argued: September 13, 2018 | Decided: December 4, 2018
Appeal from the Harrison Superior Court, No. 31D01-1308-MR-508
        The Honorable Vicki L. Carmichael, Special Judge
                        On Direct Appeal



                   Opinion by Justice David
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice

   Defendant Kevin Andrew Schuler pled guilty to the murder of Asenath
Arnold and to felony murder for the death of Gary Henderson at the
hands of his accomplice Austin Scott. Schuler was sentenced to life
without parole for the murder charge and received a consecutive sixty-
five-year sentence for the felony murder. Schuler raises four issues in this
appeal, arguing a violation of his Miranda rights, insufficient evidence to
support his sentence, that his sentence was inappropriate, and failure of
the trial court to meet certain requirements in its sentencing statement.
We affirm the trial court on each of Schuler’s first three claims but remand
this matter for a new sentencing statement.


Facts and Procedural History
   Asenath Arnold was found dead in her Harrison County farm home on
the morning of August 3, 2013. Arnold, a mostly-bedridden fifty-seven-
year-old woman, had been brutally beaten in her bedroom; her head was
significantly disfigured, and blood was splattered on the walls and pooled
underneath her bed. Gary Henderson, who slept in an upstairs bedroom
in the same home, was also found dead with multiple stab wounds.

   Later that day in adjacent Floyd County, New Albany police officers
responded to a call about gun shots fired in a residential neighborhood.
Police located Austin Scott and Defendant Kevin Schuler shortly
thereafter and placed them under arrest. After Miranda warnings were
given to both individuals, Scott offered that he “killed a man last night”
and that Schuler killed someone as well. (Tr. Vol. 3 at 238, Tr. Vol. 5 at
104, 107). Police confirmed that Harrison County was working a double
homicide and took Schuler to the Floyd County Sherriff’s Department for
further questioning.

   At the police station, interrogators learned that Schuler and Scott were
driving a four-wheeler early that morning and stopped at Arnold and
Henderson’s farmhouse to siphon gas from a tractor. Schuler knew the
home because he had done work on the property a few years earlier.
Schuler admitted to police that he followed Scott into the home where


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 2 of 16
Scott pulled out a knife, went upstairs, and killed Henderson. The two
took several items from the house including rifles and prescription
medication but returned when Schuler realized he left his backpack at the
scene. Schuler and Scott re-entered the home to see if they could find any
more pills. At some point, Schuler found a singletree—a wooden bar
normally used to hold horses together—on the property and carried it into
the house.

   Once Schuler and Scott were back in the house, Arnold called out to the
intruders and started to emerge from her bedroom on the first floor.
Schuler punched Arnold and she stumbled back to her bed. Schuler then
took the singletree and struck Arnold on top of her head. Arnold prayed
and pleaded with Schuler for her life. According to Scott, Schuler swung
the singletree with two hands “like a sledgehammer,” striking Arnold at
least twice and as many as four times. (St. Ex. 30-4 at 47:53-52:00). In
addition to Schuler hitting Arnold with the singletree, Scott also stabbed
her in the face. Although he couldn’t be completely sure whether he or
Scott killed Arnold, Schuler told police, “I’m almost positive I killed her.”
(Tr. Vol. 2 at 250). An autopsy determined Arnold died of multiple blunt
force injuries and sharp force wounds to the head. Schuler and Scott took
Arnold’s rings and medication before leaving the home.

   Schuler was charged with three counts of murder, Class A felony
robbery, Class A felony burglary, and Class D felony theft. The State
subsequently filed a notice of intent to seek the death penalty, alleging
that Schuler intentionally killed Arnold while committing the crime of
robbery. Schuler ultimately pled guilty to Count 1, murder, and Count 2,
felony murder, and in exchange, the State agreed to dismiss its request for
the death penalty and instead requested a sentence of life imprisonment
without parole under Indiana Code section 35-50-2-9. The parties agreed
that the trial court alone would conduct the sentencing hearing to
determine whether life without parole or a term of years would be
imposed. At the sentencing hearing, the trial court verbally gave its
reasons for the ultimate sentence, including a discussion of potential
aggravating and mitigating factors. Schuler was sentenced to life without
parole on Count 1 and sixty-five (65) years on Count 2 to be served
consecutively.


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 3 of 16
   The present appeal ensued, which we accepted under mandatory
review pursuant to Indiana Rule of Appellate Procedure 4(A)(1)(a).
Additional facts will be presented below as necessary.


Discussion and Decision
   Schuler raises four issues on appeal, which we restate as follows: (1)
whether Schuler’s Miranda rights were violated during a custodial
interrogation; (2) whether there was sufficient evidence to prove beyond a
reasonable doubt that Schuler intentionally killed Asenath Arnold; (3)
whether Schuler’s sentence was inappropriate; and (4) whether the trial
court’s sentencing statement complied with Harrison v. State and reflects
appropriate sentencing considerations. We will analyze each issue in
turn.


I. Schuler’s Miranda rights were not violated.
   Schuler first argues that his Miranda rights were violated when police
failed to stop all questioning after he requested his attorney during a
police interrogation. Schuler was interrogated on two separate occasions
by Harrison County Detective Nick Smith: first after Schuler was stopped
and arrested in New Albany and second when Schuler was taken to the
Floyd County Police Department about an hour later. During the second
interrogation, the following interaction took place:

                                            ---

  DET. SMITH: All right. You have the right to remain silent. Anything
you say can and will be used against you in court. You have the right to
consult with an attorney and have that attorney present during
questioning. If you cannot afford an attorney, one will be provided for
you before any questioning at — at no cost. If you choose to answer any
questions we'd ask you now, you still have the right to stop answering
questions at any time, that never changes. Do you understand that?

   MR. SCHULER: Have my attorney now?




Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 4 of 16
   DET. SMITH: It's up to you. If you ask me for an attorney, I can't ask
you no more questions.

   MR. SCHULER: This isn't recorded or nothing.

  DET. SMITH: Everything we do is recorded, buddy. I've got to tell
your story and I've got to tell the truth. I don't want to hide nothing. If
you want an attorney, tell me now, and then I will not ask you any
questions.

  MR. SCHULER: I — I want my attorney, but I’ll answer, you can ask
me questions however.

  DET. SMITH: You got to be specific, buddy. I mean, if you're telling
me you want an attorney, I cannot talk to you any more.

   MR. SCHULER: You — you can go ahead and talk to me, that's fine.

  DET. SMITH: Are you — I can't really even ask you. Are you saying
you want to talk to an attorney before you talk to me?

   MR. SCHULER: No, you can go ahead.

   DET. SMITH: Are you positive?

   MR. SCHULER: Yes.

   DET. SMITH: Okay. So you want to talk to me?

   MR. SCHULER: Yes, sir.

   DET. SMITH: Okay. Did you mean a minute ago that you wanted an
attorney first?

   MR. SCHULER: Oh, no, I have an attorney. I don't know if I'm
supposed to talk to him first or you. It doesn't matter, I'll go ahead and
talk to you.

   DET. SMITH: Only if you want to, buddy.

   MR. SCHULER: Yeah.

                                            ---




Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 5 of 16
(Tr. Vol. 2 at 156-57). In the course of the interrogation that followed this
exchange, Schuler gave details about the two murders and admitted that
he at least played a role in the death of Asenath Arnold—eventually
stating, “I’m almost positive I killed her.” (Tr. Vol. 2 at 244, 250).

   Before entering his guilty plea, Schuler moved to suppress these
statements, arguing that he unambiguously and unequivocally requested
an attorney. Thus, the interview should have stopped, and any statements
made after this invocation of his right to counsel should have been
suppressed. The trial court, however, denied Schuler’s motion and
proceeded to accept his guilty plea.

   Schuler asks our Court to find that his Fifth Amendment right to an
attorney was violated and that his motion to suppress should have been
granted. When a trial court denies a motion to suppress, we review this
denial in a manner similar to other sufficiency issues. Hartman v. State,
988 N.E.2d 785, 788 (Ind. 2013). We do not reweigh evidence and there
“must be substantial evidence of probative value in the record to support
the trial court’s decision.” Id. Within this sufficiency review, we review
all issues of law de novo. Id.

   To the extent Schuler claims his request for an attorney was
unambiguous and unequivocal, we disagree. When a person is
questioned by law enforcement officers after being taken into custody,
that person must first “be warned that he has a right to remain silent, that
any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or
appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694 (1966). Once the accused requests counsel, “the interrogation
must cease until an attorney is present.” Carr v. State, 934 N.E.2d 1096,
1102 (Ind. 2010) (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880,
1883, 68 L.E.2d 378 (1981)). This request, however, must be
“unambiguous and unequivocal.” Carr, 934 N.E.2d at 1102 (citing
Berghuis v. Thompkins, 560 U.S. 370, 379, 130 S.Ct. 2250, 2259, 176 L.E.2d
1098 (2010)).

  Police investigators are not required to stop questioning “if a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 6 of 16
reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel.” Davis v.
United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)
(emphasis in original). If a defendant’s statements are unclear, police may
ask clarifying questions to determine whether the accused has actually
requested counsel. See Bailey v. State, 763 N.E.2d 998, 1003 (Ind. 2002).
However, as Schuler argues, “an accused’s postrequest responses to further
interrogation may not be used to cast retrospective doubt on the clarity of
the initial request itself.” Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490,
495, 83 L.Ed.2d 488 (1984) (emphasis in original). See also Sleek v. State, 499
N.E.2d 751, 754 (Ind. 1986) (“Even if [an accused’s] request was perceived
to be inherently ambiguous, or equivocal in light of the preceding events,
any further questioning should have been narrowly limited to clarifying
whether [the accused] actually wished to have counsel present.”).

   At issue here is Schuler’s statement, “I want my attorney, but I’ll
answer, you can ask me questions however.” In examining courts’ prior
treatment of similar statements, we cannot agree that this statement is an
outlier or even on the bleeding edge of Miranda’s jurisprudence. In Davis,
for example, the Supreme Court of the United States found the
defendant’s statement, “[m]aybe I should talk to a lawyer,” to be
ambiguous and therefore not a request for counsel. 512 U.S. at 462, 114
S.Ct. at 2357. Similarly, in Bailey, 763 N.E.2d at 1003, our Court found the
statement, “I may need a what do you call it … a [sic] appointed … oh
appointed attorney” to be an ambiguous request for counsel, and in Taylor
v. State, 689 N.E.2d 699, 703 (Ind. 1997), the statement, “I guess I really
want a lawyer, but, I mean, I’ve never done this before so I don’t know”
was also found to be an ambiguous request. Schuler’s statement, in light
of the circumstances, was arguably more ambiguous than the statements
made in each of these cases.

   Schuler argues, however, that Detective Smith failed to honor his plain
request for an attorney. In support, Schuler points to Anderson v. State, 961
N.E.2d 19, 26 (Ind. Ct. App. 2012), trans. denied, a case in which our Court
of Appeals found the defendant’s statement, “I really would like to talk to
an attorney or something,” to be an unequivocal invocation of a right to
counsel. The Court of Appeals reasoned that the addition of “or


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 7 of 16
something” to the otherwise clear request for counsel did not make the
statement equivocal. Id. at 27. Rather, the phrase “or something”
appeared to be a habit of speech, and given the reality of an interrogation
room, the court was satisfied that the entire statement was a clear request
for an attorney. Id.

    Schuler’s statement, “I want my attorney, but I’ll answer, you can ask
me questions however” does not carry the same unambiguous tones of the
Anderson statement. A reasonable officer in light of the circumstances
would have found Schuler’s statement to be ambiguous. The phrase “but
I’ll answer, you can ask me questions however” was not a habit of speech;
it was permission to continue questioning. Even so, Detective Smith
confronted the issue directly, asking, “Did you mean a minute ago that
you wanted an attorney?” (Tr. Vol. 2 at 157). Schuler responded, “Oh, no,
I have an attorney. I don’t know if I’m supposed to talk to him first or to
you. It doesn’t matter, I’ll go ahead and talk to you.” (Id. (emphasis added)).
Schuler’s statements, at minimum, show that he was aware of his right to
an attorney but chose to speak with the detective anyway. Furthermore,
we do not think Detective Smith’s clarifying questions injected any
retrospective doubt into Schuler’s ambiguous statement. The detective
acted as any reasonable police officer would in this circumstance and even
made sure Schuler understood that the interview would stop if he was
truly requesting an attorney.

    A defendant’s statement is either “an assertion of the right to counsel or
it is not.” Davis, 512 U.S. at 459 (citation omitted). Here, Schuler’s
statement was not an unambiguous request for counsel. We are satisfied
Schuler’s Miranda rights were honored during this custodial interrogation
and affirm the trial court’s denial of Schuler’s motion to suppress.


II. There was sufficient evidence beyond a reasonable
    doubt that Schuler intentionally killed Arnold.
   Schuler next argues that there was insufficient evidence to support the
aggravating circumstance that made him eligible for a life without parole
sentence. We review the sufficiency of the evidence to support a statutory



Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 8 of 16
aggravating circumstance in the same way we review the sufficiency of
evidence to convict. Krempetz v. State, 872 N.E.2d 605, 609 (Ind. 2007). We
examine only the probative evidence and reasonable inferences
supporting the verdict and do not reweigh the evidence or assess witness
credibility. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We look to see if
the evidence “constitutes substantial evidence of probative value from
which a reasonable trier of fact could find the existence of the aggravator
beyond a reasonable doubt.” Krempetz, 872 N.E.2d at 609 (citing Fleenor v.
State, 622 N.E.2d 140, 151 (Ind. 1993)).

    In general, when the State seeks to impose a sentence of life without
parole for murder, it must allege at least one aggravating circumstance
listed in the life without parole statute. Ind. Code § 35-50-2-9(a). In this
case, the State alleged Schuler committed murder by intentionally killing
Arnold while committing burglary.1 Ind. Code § 35-50-2-9(b)(1). A
person engages in conduct “intentionally” if, “when he engages in the
conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).
Intent to kill may be inferred from the intentional use of a deadly weapon
in a manner likely to cause death or great bodily injury. Landress v. State,
600 N.E.2d 938, 941 (Ind. 1992). A deadly weapon includes “material that
in the manner it … is used … is readily capable of causing serious bodily
injury.” Ind. Code § 35-31.5-2-86(a)(2).

   In the present case, there was substantial evidence beyond a reasonable
doubt that Schuler intentionally killed Arnold during the commission of a
burglary. Although a singletree isn’t generally used as a weapon, the
manner in which Schuler used it was readily capable of causing serious
bodily injury. Schuler admitted as much, noting that he used both hands
to swing the singletree down on top of Arnold’s head and was “almost
positive” that he killed her. (Tr. Vol. 2 at 250). The inference of Schuler’s
intent to kill can be further bolstered by Scott’s statements that he saw
Schuler strike Arnold with the singletree “like a sledgehammer” at least




1Schuler does not contest that this criminal act took place during the commission of a
burglary.



Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018              Page 9 of 16
twice (St. Ex. 30-4 at 48:13–48:23) and a forensic pathologist’s report that
the blunt force injuries directly contributed to Arnold’s death.

   We affirm the trial court court’s finding of the aggravating
circumstance beyond a reasonable doubt that Schuler intentionally killed
Arnold during the burglary of Arnold’s home.2


III. Schuler’s sentence of life without parole is
     appropriate.
   Schuler argues that his sentence is inappropriate and urges us to
exercise our constitutional power to review and revise his sentence. Ind.
Const. Art. 7, § 4. Under our appellate rules, we will revise a sentence
only if we find that it “is inappropriate in light of the nature of the offense
and the character of the offender.” Ind. Appellate Rule 7(B). Our goal in
applying 7(B) review is not to achieve a perceived “correct” sentence, but
rather to leaven the outliers. McCallister v. State, 91 N.E.3d 554, 566 (Ind.
2018). In conducting this review, we “defer to the trial court’s sentence
and impose on the defendant the burden of persuading us that a revised
sentence is warranted.” Id. (citing Rice v. State, 6 N.E.3d 940, 946 (Ind.
2014)).

   Schuler argues the trial court abused its discretion by considering the
Indiana Risk Assessment System (“IRAS”) as an aggravating circumstance
or counterweight to a mitigating circumstance, not giving proper
consideration to his age and brain development, and placing weight on
the victims’ innocence. We disagree and find no abuse of discretion.

  First, courts may properly consider offender assessment instruments
such as the IRAS as supplemental tools during the sentencing phase of a




2Schuler argues that the trial court relied on conjecture that Schuler killed Arnold only
because she recognized him. That argument, however, goes to Schuler’s motive rather than
intent. Even if we were to accept this argument as true, the trial court still could have found
this aggravating circumstance beyond a reasonable doubt based on the way Schuler used the
singletree as a deadly weapon.



Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018              Page 10 of 16
trial. Malenchick v. State, 928 N.E.2d 564, 575 (Ind. 2010). While the IRAS
itself does not serve as an aggravating or mitigating circumstance, it
nevertheless “may be considered by a trial judge in reaching an informed
sentencing decision.” Id. at 574. Although the trial court in this case did
reference the IRAS during sentencing, it did not place any special weight
on the IRAS findings. Instead, the court mentioned it briefly before
moving on to a host of other factors it considered during sentencing.

   Second, Indiana Code section 35-50-2-9(c)(7) allows a court to consider
as a mitigating circumstance whether the defendant was less than
eighteen at the time the murder was committed. Schuler points to Miller
v. Alabama, 567 U.S. 460, 473, 132 S.Ct. 2455, 2465, 183 L.Ed.2d 407 (2012),
arguing “youth matters in determining the appropriateness of a lifetime of
incarceration without the possibility of parole.” While we agree with this
general proposition, Miller dealt with two fourteen-year-old offenders that
received a mandatory life without parole sentence.3 Id. at 465, 132 S.Ct. at
2460. Here, the trial court pointed out that Schuler was eighteen years old
at the time he committed the murder, that the law treats eighteen-year-
olds as adults, and that Schuler seemed to comprehend the consequences
of murder when he asked the detective, “I’m going to spend the rest of my
life in prison, aren’t I?” (Tr. Vol. 7 at 155). It was within the court’s
discretion to not place great weight on Schuler’s age.

   Third, there is a presumption that a trial court that conducts a
sentencing hearing “renders its decision solely on the basis of relevant and
probative evidence.” Veal v. State, 784 N.E.2d 490, 493 (Ind. 2003). There
is no indication here that the trial court placed any significant weight on
victim impact when it mentioned “two innocent victims who will never
have Christmas with their families.” (Tr. Vol. 7 at 156). Schuler fails to
persuade us otherwise.




3In Miller, the Supreme Court of the United States struck down Alabama’s and Arkansas’s
mandatory life without parole statutes for offenders under the age of eighteen, citing the
Eighth Amendment’s ban on cruel and unusual punishment. 567 U.S. at 489, 132 S.Ct. at 2475.



Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018          Page 11 of 16
   Schuler also argues that a term of years is a more appropriate sentence
than life without parole. He argues that his age, troubled family history,
and lack of substantial criminal history should weigh in favor of his
character. While it is true that “a trial court should reserve maximum
sentences for classes of offenses that constitute the worst of the worst,”
Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011), Schuler did not receive
the maximum sentence in this case. Instead of being sentenced to death or
to consecutive life sentences for the murder and felony murder charges,
Schuler received a life without parole sentence and a sixty-five-year
consecutive sentence. We are also not persuaded that Schuler’s sentence
is an outlier. See, e.g., Helsley v. State, 43 N.E.3d 225, 229 (Ind. 2015)
(defendant’s sentence of life without parole was appropriate for the
double murder of two coworkers despite alleging troubled childhood and
lack of criminal history); Krempetz, 872 N.E.2d at 605, 615 (affirming
consecutive life without parole, forty-five year term, and twenty-year term
sentences when an 18-year-old defendant committed intentional murder
during the robbery of a woman where the defendant had no criminal or
juvenile history but admitted to drug use).

   We therefore conclude that Schuler’s sentence was appropriate in light
of the nature of the offense and his character.


IV. The sentencing statement did not comply with
    the dictates of Harrison v. State.
   Schuler’s final argument is that the trial court failed to comply with the
requirements set forth in Harrison v. State and impermissibly considered
nonstatutory aggravators when it sentenced him to life imprisonment
without parole. We review a trial court’s sentencing order for an abuse of
discretion. Rice, 6 N.E.3d at 943 (citing Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007)). An abuse of discretion occurs if a trial court enters a
sentencing statement explaining the reasons for imposing the given
sentence, “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.” Id.


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 12 of 16
   When trial judges exercise discretion over the sentence imposed for the
death penalty or life imprisonment without parole, the court must comply
with the requirements outlined in Harrison v. State, 644 N.E.2d 1243, 1262
(Ind. 1995). See also Rice, 6 N.E.3d at 943 (affirming the use of Harrison
factors when the judge alone makes the sentencing determination after the
defendant enters a guilty plea). Under Harrison, we require that
sentencing findings in capital cases:


      (i) must identify each mitigating and aggravating circumstance
      found, (ii) must include the specific facts and reasons which
      lead the court to find the existence of each such circumstance,
      (iii) must articulate that the mitigating and aggravating
      circumstances have been evaluated and balanced in
      determination of the sentence, and (iv) must set forth the trial
      court’s personal conclusion that the sentence is appropriate
      punishment for this offender and this crime.


Harrison, 644 N.E.2d at 1262 (internal citations omitted). These
requirements are in place to “insure [sic] the trial court consider[s] only
proper matters when imposing [a] sentence…and to enable the appellate
court to determine the reasonableness of the sentence imposed.” Id.

   The trial court in the present case verbally discussed its sentencing
decision from the bench. Examining the trial court’s statements at
sentencing, we can only make out the rough silhouettes of each Harrison
factor, none of which come into clear focus.

   As to the first and second Harrison factors, the trial court clearly
identified the aggravating circumstance of an intentional killing during
the commission of a robbery, but also referenced “other aggravating
circumstances,” none of which are readily identifiable from the court’s
statements. (Tr. Vol. 7 at 156). While the life without parole sentencing
statute requires only one aggravating circumstance, see Ind. Code § 35-50-
2-9(a), we have consistently held that, in the context of life imprisonment
without parole, courts must, “limit the aggravating circumstances eligible
for consideration to those specified in the…statute.” Clippinger v. State, 54
N.E.3d 986, 991-92 (Ind. 2016) (quoting Pope v. State, 737 N.E.2d 374, 383


Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 13 of 16
(Ind. 2000)). Without any clear indication of what “other aggravating
circumstances” the court considered, we cannot ensure only proper
matters were considered.

    Similarly, it is not clear to us that the sentencing statement meets the
third Harrison factor. Although the trial court found that the “aggravating
circumstances outweigh any mitigating circumstances,” (Tr. Vol. 7 at 156),
it is hard to assess how the court balanced the factors without specific
identification of any mitigating factors. While courts are not required to
find mitigating circumstances, see Clippinger, 54 N.E.3d at 992, the court
here at least hinted at several factors it considered in determining
Schuler’s sentence. Without specificity, it is difficult for us as an appellate
court to review the imposition of the sentence.

    As to the final Harrison factor, the court’s statements imply that it came
to the personal conclusion that the sentence was appropriate. At the
beginning of its statement, the trial court noted, “nothing I do here today
is probably going to allow you to see [Schuler] outside of prison walls…I
have to decide whether life in prison or a term of years is appropriate.”
(Tr. Vol. 7 at 152). After discussing the various factors at issue in the case,
the trial court concluded by “impos[ing] a sentence of life without the
possibility of parole for the murder of Asenath Arnold.” (Tr. Vol. 7 at
156). But without clear substance between these two statements, we
cannot say with certainty that “[t]he court’s balancing of the evidence
emphatically displays its discrete, individualized sentencing.” Azania v.
State, 730 N.E.2d 646, 653 (Ind. 2000) (quoting Allen v. State, 686 N.E.2d
760, 790 (Ind. 1997)).

  For these reasons, we do not think the requirements of Harrison have
been met. If a sentencing statement does not meet the requirements of the
law, “we are unwilling to affirm [a] sentence of life without parole.”
Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003). There are three options,
then, that we must consider: “(1) remand the matter to the trial court for
clarification or a new sentencing determination; (2) affirm the sentence if
the error is harmless; or (3) independently reweigh the proper aggravating
and mitigating circumstances.” Id. As a practical matter, we have
previously given trial courts the opportunity to revise a sentencing



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statement if it does not conform to the requirements of Harrison. See, e.g.,
Clippinger, 54 N.E.3d at 987, 991-92 (reweighing aggravating and
mitigating circumstances after an initial remand for a clearer sentencing
statement); Brown, 783 N.E.2d at 1129 (electing to independently evaluate
aggravating and mitigating circumstances after already remanding for a
revised sentencing order). We elect to follow the same course here. As in
Harrison, we must “stand firm and require a clear demonstration that the
essential operations” of the life without parole sentencing process have
taken place. 644 N.E.2d at 1264 (citation omitted).

   We therefore remand this matter to the trial court for a clearer
sentencing statement that complies with the dictates of Harrison.


Conclusion
  For the foregoing reasons, we affirm that Schuler’s Miranda rights were
not violated, there was sufficient evidence beyond a reasonable doubt to
prove the necessary aggravating factor of an intentional killing during the
commission of a robbery, and that Schuler’s sentence is appropriate. We
remand this matter, however, for a more specific sentencing statement
consistent with Harrison.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 15 of 16
ATTORNEYS FOR APPELLANT
Brent Westerfeld
Andrew J. Borland
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Andrew A. Kobe
Jesse R. Drum
Deputy Attorneys General
Indianapolis, Indiana

Joshua Otto Schalk
Harrison County Prosecuting Attorney
Corydon, Indiana




Indiana Supreme Court | Case No. 31S00-1703-LW-134 | December 4, 2018   Page 16 of 16
