                                                                                  FILED
      OPINION ON REHEARING                                                   Mar 21 2019, 9:07 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brian A. Karle                                            Curtis T. Hill, Jr.
      Ball Eggleston, PC                                        Attorney General of Indiana
      Lafayette, Indiana
                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Shawn P. Morrell,                                         March 21, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1282
              v.                                                Appeal from the Tippecanoe
                                                                Circuit Court
      State of Indiana,                                         The Honorable Donald L. Daniel,
      Appellee-Plaintiff.                                       Senior Judge
                                                                Trial Court Cause No.
                                                                79C01-1711-F5-151



      Sharpnack, Senior Judge.


                                       Statement of the Case
[1]   Shawn P. Morrell appealed from the sentence imposed by the trial court after

      his conviction of one count of domestic battery. We affirmed the trial court’s

      decision in a memorandum decision, and later granted Morrell’s request for

      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1282 | March 21, 2019                 Page 1 of 4
      publication of the opinion. Morrell v. State, 18A-CR-1282, 2019 WL 238136,

      slip op. at *6 (Ind. Ct. App. January 17, 2019). Morrell now petitions for

      rehearing, contending that this Court’s opinion did not address clearly the issue

      involving the use of nonadjudicated juvenile contacts as an aggravating

      circumstance. On reflection, we agree and grant the petition for the sole

      purpose of clarifying the disposition of that issue.


                                    Discussion and Decision
[2]   In our original opinion, we addressed Morrell’s argument that the trial court

      had abused its discretion by considering his juvenile history as an aggravating

      circumstance. He had argued that the trial court should not have included in

      his criminal history aggravator any juvenile contacts with the justice system not

      resulting in an adjudication. We agree.


[3]   During the trial court’s oral sentencing statement, the court set forth the

      following as the first aggravating circumstance:


              Conviction having been entered against Shawn Patrick Morrell
              on Count 1, Domestic battery, a level 5 felony the court now
              finds that an aggravating circumstance is the defendant’s criminal
              history. The court notes three juvenile adjudications, two other
              juvenile contacts, three felony convictions, two misdemeanor
              convictions. Seven cases which have unknown disposition. At
              least one failure to appear and two pending petitions to revoke
              probation.


      Tr. p. 88.


[4]   In Day v. State, Chief Justice Shepard, writing for the majority, stated as follows:
      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1282 | March 21, 2019   Page 2 of 4
        In sentencing Day, the trial court relied on prior convictions and
        listed all Day’s adult convictions and the “various offenses . . .
        disposed of . . . while you were a juvenile” and declared that
        these all involved sexual violence against females. While it is
        possible that the sentencing judge knew about these juvenile
        offenses because he presided over them, the presentence report
        and the rest of the record before the trial court neither revealed
        any facts about the events constituting Day’s juvenile history nor
        demonstrated any adjudications.


        The trial court’s reliance on the available juvenile record was
        error. The details of criminal activity may be used to
        demonstrate a history of criminal activity when a juvenile court
        has determined that those acts were committed. When a juvenile
        proceeding ends without a disposition, the mere fact that a
        petition was filed alleging delinquency does not suffice as proof
        of a criminal history. Indeed, even when a juvenile court has
        made a determination of delinquency, only the acts committed
        by the juvenile may constitute a criminal history to support
        enhancement of a sentence. An adjudication of delinquency is
        not a fact that can be used by a sentencing court to enhance a
        criminal sentence. Concurring in denial of rehearing I
        emphasized that the adjudication does play an important role in
        establishing a history of criminal behavior as a juvenile: The
        adjudication indicates that the history is correct. It elevates that
        history from allegation to fact.


560 N.E.2d 641, 643 (Ind. 1990) (internal footnote, citations, and most

quotations omitted). In the footnote, the Supreme Court stated “We save for

another day the question of whether, in the absence of an adjudication, the

prosecution might establish a history of criminal acts committed as a juvenile

through independent evidence offered during the sentencing hearing for an

adult offense. Id. n.1.

Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1282 | March 21, 2019   Page 3 of 4
[5]   To the extent the trial court here may have considered any of Morrell’s juvenile

      contacts with the justice system not reduced to an adjudication as part of the

      criminal history aggravator of his sentence, which the court appears to have

      done based upon the oral sentencing statement, the trial court abused its

      discretion. However, the factors used to support the aggravating circumstance

      of Morrell’s criminal history other than the nonadjudicated charges amply

      support the sentence imposed. Morrell had amassed juvenile adjudications,

      adult convictions, and admitted to the use of illicitly or illegally obtained illicit

      substances beginning at the age of fourteen. We will not remand for

      resentencing where we are confident that the trial court would not reach a

      different sentence. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (“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.”). We are confident here.


                                                Conclusion
[6]   For the reasons stated above, we affirm our prior opinion in this matter, but

      grant rehearing for the limited purpose of clarifying this portion of the review of

      the trial court’s sentencing decision.


      Bailey, J, and Bradford, J., concur.




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