                                                                                          FILED
                                                                                     Jun 28 2016, 10:29 am

ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE             CLERK
Thomas P. Keller                                       Gregory F. Zoeller             Indiana Supreme Court
                                                                                         Court of Appeals
South Bend, Indiana                                    Attorney General of Indiana         and Tax Court



                                                       Kelly A. Loy
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             In the
                         Indiana Supreme Court
                                     No. 71S00-1510-LW-590

STEVEN CLIPPINGER,
                                                               Appellant (Defendant below),

                                                  v.

STATE OF INDIANA,
                                                               Appellee (Plaintiff below).


           Appeal from the St. Joseph County Superior Court, No. 71D03-1206-MR-8
                              The Honorable Jerome Frese, Judge



                                          On Direct Appeal


                                           June 28, 2016

Massa, Justice.


       Steven Clippinger murdered his brother and sister-in-law and was sentenced to two terms
of life imprisonment without parole, with an additional term of twenty years for his conviction as
a serious violent felon in possession of a firearm, all to be served consecutively. Clippinger appeals
the sentence only, claiming that the trial court was without statutory authorization to impose
consecutive life sentences, and that the trial court’s sentencing order in this case was inadequate.
We agree with Clippinger’s second contention, but find the sentence imposed was proper, and thus
exercise our appellate prerogative to sentence Clippinger to two consecutive terms of life
imprisonment without parole, and affirm the additional consecutive term of twenty years
imprisonment for the firearm possession conviction.




                                 Facts and Procedural History


       Clippinger was first convicted of murder in 1990, at the age of 18, and served twenty years
in prison, being released from parole in 2010. Just two years later, in June 2012, Clippinger’s
brother Matthew took from him a .38 caliber revolver and refused to give it back. Clippinger was
not permitted to possess a firearm due to his prior conviction. Clippinger returned to Matthew’s
home later that night, and shot him in the driveway multiple times, including two crippling shots
in the lower back. And after shooting Matthew, Clippinger repeatedly pistol-whipped him in the
head, causing multiple blunt force injuries. Clippinger then fired at Matthew’s wife Lisa when she
came to the garage to investigate; she then fled back into the house, and Clippinger chased after
her and killed her. Matthew and Lisa’s two children, ages 12 and 20, were present and called the
police. Clippinger fled the scene, running past the then-still-alive Matthew, who later died from
his injuries, but not before reporting to police that he had been shot by “my own brother.” Tr. at
111. Clippinger was apprehended shortly thereafter, in possession of the firearms which killed
Matthew and Lisa.


       After a bench trial, Clippinger was convicted of two counts of murder and of being a serious
violent felon in possession of a firearm. At a separate sentencing phase, the State presented
evidence of two statutory aggravators, including the prior murder conviction, and Clippinger
presented evidence in mitigation. The trial court sentenced Clippinger to serve two life sentences
without parole consecutively; and, after a subsequent sentencing hearing, imposed an additional
20-year sentence for being a serious violent felon in possession of a firearm, also to run
consecutively.




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       On direct appeal, Clippinger did not challenge his convictions, but only the circumstances
of sentencing, claiming: (1) Indiana law did not permit a trial court to impose consecutive
sentences of life imprisonment without parole; (2) the sentencing order was insufficient because it
failed to specifically identify mitigating factors and balance them against the aggravating factors;
and (3) it was improper to conduct a further sentencing hearing after the sentence of life without
parole had already been imposed. Before considering the merits, this Court remanded for a revised
sentencing order in light of its recent decision in Lewis v. State, which affirmed that when
imposing a sentence of life imprisonment without possibility of parole or a sentence of death, the
trial court must make specific findings in accordance with the four factors described in Harrison
v. State, 644 N.E.2d 1243 (Ind. 1995) and Pittman v. State, 885 N.E.2d 1246 (Ind. 2008), and
which also held that the applicable sentencing statute “does not require a trial court to impose no
less than a sentence of life without possibility of parole if [it finds the aggravators outweigh the
mitigators].” 34 N.E.3d 240, 249 n.8 (Ind. 2015) (emphasis in original). The trial court then issued
a Revised Order on remand, containing headings consistent with the requirements of Harrison,
Pittman and Lewis, and ultimately continued to impose all three sentences consecutively, including
the two sentences of life imprisonment without parole. No new argument was made by either party
on remand. The parties were invited to submit supplemental briefing as to any new or different
issues raised by the Revised Order, but declined to do so. Accordingly, we find that the Revised
Order has mooted Clippinger’s third contention on appeal, and shall address the remaining two.




                                       Standard of Review


       “We have long said that sentencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219,
1222 (Ind. 2008). Accordingly, “[a] trial court’s sentencing order will be reviewed for an abuse
of discretion.” Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014) (citing Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007)). If, however, “the issue presented on appeal is a pure question of law, we
review the matter de novo.” State v. Holloway, 980 N.E.2d 331, 334 (Ind. Ct. App. 2012) (quoting
State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997)).


                                                 3
                A Sentence of Life Without Parole Is a “Term of Imprisonment”
                        Pursuant to Indiana Code Section 35-50-1-2(c).


        Clippinger claims that the trial court abused its discretion in imposing consecutive life
sentences under Indiana Code section 35-50-1-2(c) (2014) (“Section 2(c)”), 1 citing our recent
decision in Isom v. State that consecutive death sentences exceed the statutory authority granted
trial courts under Section 2(c) to impose consecutive sentences for “terms of imprisonment”:

                 A “term of imprisonment” is a penalty under which the convict is
                 sent to incarceration for some period (such as two years or five to
                 ten years) and then released after the period has passed. Execution
                 is a penalty of a radically different sort. It features incarceration
                 only while appellate processes persist and does not contemplate a
                 future release into society.

Appellant’s Br. at 11 (quoting Isom v. State, 31 N.E.3d 469, 495 (Ind. 2015) and State v. Price,
715 N.E.2d 331, 332 (Ind. 1999)). Clippinger claims that a life sentence is akin to a death sentence
because it too lacks a “contemplated future release into society,” and the period of incarceration is
for an indefinite term; thus it is not a “term of imprisonment” under Section 2(c). Appellant’s Br.
at 11–12. The State contends, however, that life imprisonment is more akin to a term of years
because incarceration pending execution is merely a tool “to house the person during the appellate
process” whereas life imprisonment is “for a set period of incarceration, i.e. for the duration of the
offender’s life.” State’s Br. at 10.


        Clippinger’s position is not without intuitive merit; indeed, sentences of life without parole
and death are both subject to the same unique trial procedures under our statutory scheme, 2 and




1
 “A trial court cannot order consecutive sentences absent express statutory authority.” Weaver v. State,
664 N.E.2d 1169, 1170 (Ind. 1996).
2
  See, e.g., Ind. Code § 35-50-2-9 (“(a) The state may seek either a death sentence or a sentence of life
imprisonment without parole for murder by alleging, on a page separate from the rest of the charging
instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the


                                                      4
these two criminal sentences are the only kind subject to mandatory appellate review by this
Court. 3 And we demand the same level of particularity in the trial court’s sentencing order for
both life without parole and death sentences. See Pope v. State, 737 N.E.2d 374, 382 (Ind. 2000)
(“A sentence of life without parole is subject to the same statutory standards and requirements as
the death penalty.”).


       Here, however, we are faced with a far narrower question than the existential difference
between life in prison and a death sentence; rather, we are asked to determine the scope of an
applicable sentencing statute, Section 2(c). We begin by noting that it is facially ambiguous
whether a sentence of life without parole constitutes a term of imprisonment because that phrase
is susceptible to more than one reasonable interpretation, and thus Section 2(c) is “open to judicial
construction.” Thatcher v. City of Kokomo, 962 N.E.2d 1224, 1227 (Ind. 2012). “When faced
with an ambiguous statute, our primary goal is to determine, give effect to, and implement the
intent of the Legislature with well-established rules of statutory construction.” Anderson v.
Gaudin, 42 N.E.3d 82, 85 (Ind. 2015). “[W]e assume that the language in a statute was used
intentionally and that every word should be given effect and meaning. . . . And statutes concerning
the same subject matter must be read together to harmonize and give effect to each.” Merritt v.
State, 829 N.E.2d 472, 475 (Ind. 2005) (footnotes omitted).


       The crux of the issue is whether the legislature intended a sentence of life without parole
to fit within the definition of a “term of imprisonment.” The statute under which Clippinger was
sentenced, Indiana Code section 35-50-2-9(g), provides the clearest indication of that intent: “If




sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt
the existence of at least one (1) of the aggravating circumstances alleged.”).
3
 See Ind. Appellate Rule 4(A)(1) (“The Supreme Court shall have mandatory and exclusive jurisdiction
over the following cases: (a) Criminal Appeals in which a sentence of death or life imprisonment without
parole is imposed under Ind. Code § 35-50-2-9 . . . .”).



                                                   5
the hearing is to the court alone . . . the court shall: (1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole; only if it makes the findings described in
subsection (l).” Given that the sentence of life imprisonment without parole is expressly labeled
a “term” of imprisonment, the most logical reading of Section 2(c) is, therefore, that it permits
consecutive life sentences. Indeed, we have tacitly recognized the availability of such consecutive
sentencing, though we have never directly addressed the issue.            See, e.g., Sallee v. State,
No. 03S00-1504-LW-237, 2016 WL 1051588 at *3, *6 (Ind. Mar. 16, 2016) (affirming conviction
where defendant was sentenced to “life without parole for each of the four counts of murder, with
the sentences to run consecutively”); Pope, 737 N.E.2d at 377 (noting that the trial court had
imposed “two consecutive life sentences without parole,” but reversing the sentence and
remanding on other grounds).


       Moreover,     life   imprisonment     without    parole contains      two   related    concepts:
“imprisonment” and “parole.” We therefore think it pertinent to look to our parole statutes for
additional guidance, as statutes concerning the same issue. The statute governing parole for
sentences imposed under our current criminal code states that an inmate may be eligible for parole
when he or she “completes the person’s fixed term of imprisonment.” Ind. Code § 35-50-6-1
(emphasis added). Indiana Code section 11-13-3-2(b) (2014), on the other hand, governs parole
for sentences imposed “for offenses under laws other than IC 35-50,” such as sentences imposed
under the version of the criminal code in effect until 1977, 4 and states in relevant part:

               (3) A person sentenced upon conviction of first degree murder or
               second degree murder to a term of life imprisonment is eligible for
               consideration for release on parole upon completion of twenty (20)
               years of time served on the sentence. A person sentenced upon
               conviction of a felony other than first degree murder or second
               degree murder to a term of life imprisonment is eligible for




4
  See Hannis v. Deuth, 816 N.E.2d 872, 876 (Ind. Ct. App. 2004) (“Offenders sentenced for offenses under
laws other than Ind. Code §§ 35-50 would include those offenders sentenced before the effective date of
Ind. Code § 35-50. See Acts 1976, Pub. L. No. 148, § 8 (eff. Oct. 1, 1977).”).



                                                   6
                consideration for release on parole upon completion of fifteen (15)
                years of time served on the sentence. A person sentenced upon
                conviction of more than one (1) felony to more than one (1) term of
                life imprisonment is not eligible for consideration for release on
                parole under this section. A person sentenced to a term of life
                imprisonment does not earn credit time with respect to that term.

        These statutes support three inferences as to our General Assembly’s intent in crafting our
overall sentencing scheme, each of which supports that Section 2(c) permits consecutive life
sentences without parole. First, the Legislature has differentiated between a “fixed term of
imprisonment” eligible for parole under Indiana Code section 35-50-6-1, and “terms of
imprisonment” more generally under Section 2(c). Accordingly, Section 2(c) can be read to allow
consecutive sentencing even for unfixed terms of imprisonment, which would include sentences
of life without parole. 5     Second, the Legislature has again used the phrase “term of life
imprisonment” in section 11-13-3-2(b)(3), which further supports that life imprisonment, while
indefinite in duration, fits within the definition of a “term” of imprisonment for purposes of both
sentencing and parole. In contrast, there are no Indiana criminal statutes referring to the death
penalty as a “term” of imprisonment. Third, section 11-13-3-2(b)(3) also denies parole to inmates
sentenced to “more than one (1) term of life imprisonment,” in a manner which contemplates those
sentences may run either consecutively or concurrently. See, e.g., Hackett v. State, 661 N.E.2d
1231, 1234–35 (Ind. Ct. App. 1996) (holding that section 11-13-3-2(b)(3) could be constitutionally
applied to deny parole to an inmate serving two life sentences concurrently, because the plain text
is applicable to deny parole “regardless [of] how the sentences are served”) (quoting Bean v. Bayh,
562 N.E.2d 1328, 1329 (Ind. Ct. App. 1990)).




5
  This Court previously rejected a similar argument in Price, as it related to consecutive death sentences
under Indiana Code section 35-50-1-2(d) (1998). 715 N.E.2d at 332. That argument, however, was tied to
Price’s assertion that the phrase “term of imprisonment” should cover “all situations involving
incarceration,” an assertion which the Price Court properly found to be invalid. Id.



                                                    7
        In short, Indiana’s criminal sentencing and parole schemes support reading “terms of
imprisonment” in Section 2(c) to permit the imposition of consecutive life sentences without
parole. To be sure, there are unique considerations when construing ambiguities in the criminal
code, in particular the rule of lenity, which “requires that penal statutes be construed strictly against
the State and any ambiguities resolved in favor of the accused.” Meredith v. State, 906 N.E.2d
867, 872 (Ind. 2009). However, aside from raising the statutory interpretation question, Clippinger
concedes that neither outcome would cause him any harm or prejudice. See Oral Arg. Video at
14:23–30 (“It may not matter to Mr. Clippinger, but as far as precedent, as far as following the
rules, as far as following the statute, it does make a big difference.”); see also Tr. at 795 ([Defense
Counsel]: Your Honor, the Court has already made a determination that Mr. Clippinger will be
sentenced to life without the possibility of parole. The question about whether or not it’s
consecutive or concurrent really has no bearing on any amount of time that Mr. Clippinger will
serve in this case.”). And as we can identify none ourselves, we choose to read these statutes in
harmony, to permit the imposition of consecutive life sentences without parole under Section 2(c).




             Clippinger’s Sentence is Proper Despite the Revised Order’s Error.

        Clippinger also challenges the adequacy of the trial court’s sentencing decision, citing our
precedents demanding particular requirements of our trial judges in imposing a capital sentence.
In Lewis, we recently affirmed these requirements as they relate to sentences of life without parole:

                [A] trial court’s sentencing order imposing a capital sentence must,
                at a minimum, address the following four issues: (1) identify each
                mitigating and aggravating circumstance found; (2) include the
                specific facts and reasons which lead the court to find the existence
                of each such circumstance; (3) articulate that the mitigating and
                aggravating circumstances have been evaluated and balanced in
                determination of the sentence; and (4) the trial court’s personal
                conclusion that the sentence is appropriate punishment for this
                offender and this crime.

34 N.E.3d at 249. The Revised Order contains section headings consistent with these four
elements; however, the content underlying these headings remains inadequate, despite remand for


                                                   8
clarification. In particular, the trial court included at least three paragraphs’ worth of non-statutory
aggravating factors in its discussion of the appropriate sentences for the murders, 6 a practice which




6
  The transcript of the hearing on remand makes clear that, indeed, both parties wished for the new
sentencing order to reflect that the trial court took only statutory aggravating factors into account in
imposing consecutive life sentences, yet the record is, at best, ambiguous on this point.

Compare Revised Sentencing Hr’g Tr. at 12–13:

                [Defense Counsel]: And, Judge, I find myself in the unique position of
                being in complete agreement with the prosecutor here. . . .

                [Prosecutor]: Judge, you can look at every mitigator, and the ones you
                listed you can look at. The only aggravators are he killed somebody in
                1990, I believe, or 1989, and that he killed two people in 2012, I believe.
                That’s it. Not the relationships, not anything else, not the manner in which
                it was done.

                THE COURT: Well, with respect I disagree with you . . . .

with id. at 16–18:

                [Prosecutor]: So I’m asking for the record to be very clear that if the only
                aggravators that you think of right now and back then are that he
                committed a prior murder and he committed—he killed two different
                people, would those and only those as aggravators outweigh the mitigation
                that you’ve just enunciated?

                THE COURT: Personally I believe that anybody on God’s green Earth
                that takes another person’s life and then on another occasion takes two
                other people’s lives separately, those are aggravators per se which
                outweigh the mitigators that I heard in the mitigation phase. . . .

                [Defense Counsel]: So the mitigators, the two statutory aggravators, and
                that it is your personal belief that the sentence was appropriate.

                [Prosecutor]: Yes.

                [Defense Counsel]: That’s what the amended sentencing order will now
                say?

                THE COURT: Yes.

                [Prosecutor]: Very good.



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we have consistently prohibited. See, e.g., Pope, 737 N.E.2d at 383 (“[W]hen the death sentence
is sought, courts must . . . limit the aggravating circumstances eligible for consideration to those
specified in the death penalty statute . . . . The same is true for a sentence of life without parole.”).
“Where we find an irregularity in a trial court’s sentencing decision, we have the option to remand
to the trial court for clarification or new sentencing determination, to affirm the sentence if the
error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently
at the appellate level.” McElfresh v. State, No. 32S01-1511-CR-667, 2016 WL 830921 at *8 (Ind.
Mar. 3, 2016) (quoting Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005)). In this instance, we elect
the last option.


        We find the State proved beyond a reasonable doubt its two alleged statutory aggravating
factors: (1) Clippinger has previously been convicted of murder, Ind. Code § 35-50-2-9(b)(7); and
(2) Clippinger “committed another murder, at any time, regardless of whether the defendant has
been convicted of that other murder,” Ind. Code § 35-50-2-9(b)(8). We also find no statutory
factors in mitigation; however, the court can (and indeed should) consider significant non-statutory
mitigating factors supported by the record in conducting capital sentencing, though the court “is
not obligated ‘to credit or weigh a possible mitigating circumstance as defendant suggests it should
be credited or weighed.’” Trowbridge v. State, 717 N.E.2d 138, 149 (Ind. 1999) (quoting Archer
v. State, 689 N.E.2d 678, 684 (Ind. 1997)). Clippinger has identified several facts which he
believes favor mitigation, such as the abuse he suffered as a child, as well as his exemplary record
during his prior term of incarceration, earning two college degrees, including a minister’s degree.
We, however, believe that these mitigators are insufficient to overcome the statutory aggravators.
We thus find the sentence previously imposed on Clippinger to be proper, and accordingly
sentence him to life imprisonment without parole for the murder of Matthew Clippinger and life




                   [Defense Counsel]: And nothing else.

                   [Prosecutor]: Thank you, your honor.



                                                     10
imprisonment without parole for the murder of Lisa Clippinger, with the terms to run
consecutively. And as Clippinger does not challenge the appropriateness of his twenty-year
sentence for being a serious violent felon in possession of a firearm, we affirm that sentence, to
run consecutive to the life sentences.




                                            Conclusion


       For the foregoing reasons, we impose upon Steven Clippinger two consecutive sentences
of life imprisonment without possibility of parole, and affirm the additional consecutive sentence
of twenty years for being a serious violent felon in possession of a firearm.


Rush, C.J., and Rucker, David, and Slaughter, JJ., concur.




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