
ATTORNEY FOR APPELLANT

Bruce R. Snyder
P. Stephen Miller
Fort Wayne, Indiana




ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Kathryn Janeway
Deputy Attorney General

Indianapolis, Indiana




      IN THE

      SUPREME COURT OF INDIANA



RICKY WARLICK,                    )
                                  )
      Appellant (Defendant Below),      )
                                  )
            v.                          )     Indiana Supreme Court
                                  )     Cause No. 02S00-9810-CR-539
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )



      APPEAL FROM THE ALLEN SUPERIOR COURT
      The Honorable John Surbeck, Jr., Judge
      Cause No. 02D04-9606-CR-259


      ON DIRECT APPEAL


                              January 27, 2000

BOEHM, Justice.
      Ricky Warlick pleaded guilty to murder  and  burglary  as  a  Class  A
felony.  The State sought a sentence of life  imprisonment  without  parole,
alleging that Warlick intentionally  killed  while  committing  a  burglary.
Warlick was sentenced to life imprisonment  without  parole  on  the  murder
count, to be served concurrently with a thirty year sentence  for  burglary.
In this direct appeal of that sentence, Warlick contends that (1) the  trial
court considered non-statutory aggravators; (2) the trial  court  failed  to
consider mitigating circumstances clearly supported by the record;  and  (3)
the  trial  court  improperly  weighed  the   aggravating   and   mitigating
circumstances.  We affirm the trial court.

                      Factual and Procedural Background

      At approximately 6:00 a.m. on June 13, 1996, Annie Warlick  was  lying
on the sofa of her sister’s home where she  had  been  staying  for  several
weeks.  She was holding her infant daughter,  Tekia,  and  her  brother  was
sitting at the other end of the sofa.  Warlick, Annie’s  estranged  husband,
entered the home, put a gun to Annie’s head, and fired two  shots.   Warlick
then turned and walked out of the house.  He drove away, threw the  gun  out
the car window, and went to his  aunt’s  home  where  he  told  her  of  the
killing and asked her to take him to the police department.  Warlick’s  aunt
called his father, who upon his arrival told her  to  call  911,  which  she
did.
      Warlick was charged with murder, burglary as a  Class  A  felony,  and
criminal recklessness as a Class D felony.  The State initially  sought  the
death penalty, alleging that Warlick had intentionally  killed  Annie  while
committing or attempting to commit  burglary.   See  Ind.  Code  §  35-50-2-
9(b)(1)(B).  That count was later dismissed at the request of  the  victim’s
family and replaced with a request for life without  parole,  based  on  the
same aggravator.
      On February 5, 1998, Warlick pleaded guilty to all  counts  without  a
plea agreement. After the penalty phase hearing, the trial court found  that
Warlick intentionally killed Annie during the commission of a burglary.   It
found Warlick’s remorse as the sole mitigating circumstance, found that  the
aggravating  circumstance  “substantially   outweigh[ed]”   the   mitigating
circumstance, and imposed a sentence of life without parole  on  the  murder
count, to be served concurrently  with  a  term  of  thirty  years  for  the
burglary count.  The State dismissed the criminal recklessness count.

                        I. Non-Statutory Aggravators

      Warlick contends that  the  trial  court  erred  in  considering  non-
statutory aggravating circumstances in imposing a sentence of  life  without
parole.  In Bivins v. State, 642 N.E.2d 928, 955  (Ind.  1994),  this  Court
held that trial courts, in deciding whether to impose a sentence  of  death,
are limited by the aggravating circumstances specified in the death  penalty
statute.  See Ind. Code § 35-50-2-9(b).   The  same  rule  applies  to  life
imprisonment without parole.  See Farber  v.  State,  703  N.E.2d  151,  153
(Ind. 1998); Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998)  (“The  statute
provides that life without parole is imposed under the  same  standards  and
is subject to the same requirements.”).
      Warlick points to three alleged aggravators that he contends the trial
court  impermissibly  considered.   First,  he  quotes  the  trial   court’s
statement at the sentencing hearing that he “forced his way into  the  house
contrary to a protective or restraining order . . .  .”   He  contends  that
the use of the word “force” was impermissible because the  evidence  at  the
guilty plea hearing was that he “just walked up the step,  opened  the  door
and walked in the house.”  The word “force” does not  appear  in  the  trial
court’s sentencing order, which states that Warlick  “without  authority  or
invitation,  entered  the  residence  of  Annie  Warlick   contrary   to   a
restraining or protective  order.”   The  trial  court’s  use  of  the  word
“force” at the sentencing hearing, if error at all, is harmless  because  it
was not included in the sentencing order.  See Prowell v. State, 687  N.E.2d
563, 565 (Ind. 1997).
      Second, Warlick asserts “since the violation of a protective order was
not alleged, considering it as an aggravator was  also  impermissible.”   As
this Court observed in Prowell, a death penalty case,
      the circumstances of the crime often provides an  appropriate  context
      for  consideration  of  the   alleged   aggravating   and   mitigating
      circumstances.  Inclusion of  the  nature  and  circumstances  of  the
      offense in a trial  court’s  sentencing  order  does  not  necessarily
      compel a conclusion that such matters were improperly  considered  and
      weighed as aggravating circumstances.


Id. at 567.  Similarly, in Holmes  v.  State,  671  N.E.2d  841,  850  (Ind.
1996), this Court found that
      the trial judge’s references in the sentencing order to premeditation,
      deliberation, moving intently from one killing to the  next,  and  the
      use of extreme force and torture, makes i[t] perfectly clear that  she
      was considering the manner in which the aggravators occurred  for  the
      sole  purpose  of  giving  an  appropriate  weight  to  those   proved
      aggravators.


Cf. Stevens v. State, 691 N.E.2d 412, 437 (Ind. 1997) (“Even  if  the  facts
articulated in the judge’s surplus statement indicate some influence on  his
decision, they appear mostly to be restatements of facts  which  would  fall
within the charged aggravating factors.”).  In light of  these  authorities,
we find no error in  the  trial  court’s  mention  of  the  violation  of  a
restraining or protective order.[1]  The court  was  merely  describing  the
nature of the  offense  and  restating  facts  necessary  to  determine  the
appropriate weight to be given  to  it,  not  finding  a  separate  improper
aggravator.
      Finally, Warlick argues that it was improper for the  trial  court  to
consider that the killing was “with total  disregard  for  the  minor  child
held by the victim Annie P. Warlick . . . .”  He contends that this was  not
part of the burglary alleged as a statutory aggravator and  that  the  facts
show that he did not know until after the shooting that his daughter was  in
Annie’s arms.  As explained above, trial courts are given some  latitude  in
describing the nature of the statutory aggravating circumstance in order  to
determine the appropriate weight to give it.  The trial court’s  observation
was supported by the evidence.  Although Warlick stated at the  guilty  plea
hearing that he “didn’t even notice my daughter laying there  till  after  I
shot,” when asked if he had taken “any concern if anybody was with Annie  at
all,” he responded that he had not.  In sum, there was an  adequate  factual
basis for this statement in the  trial  court’s  sentencing  order  and  its
mention did not violate Bivins.

              II. Failure to Consider Mitigating Circumstances

      The trial  court  found  Warlick’s  remorse  as  the  sole  mitigating
circumstance.  Warlick contends that the trial court should have also  found
as mitigating circumstances his lack of criminal history and “acceptance  of
responsibility” by surrendering to police.
      The  allegation  that  the  trial  court  failed  to  find  mitigating
circumstances requires Warlick to establish that the mitigating evidence  is
both significant and clearly supported by the record.  See Carter v.  State,
711 N.E.2d 835, 838 (Ind. 1999).  We review the  trial  court’s  finding  of
mitigating circumstances for an abuse of discretion.  See Penick  v.  State,
659 N.E.2d 484, 488 (Ind. 1995).
      As to the first of these, Warlick points to the following  comment  by
the State:  “The only possible mitigator that I could see here  is  that  he
has a lack of significant criminal history.  Not  a  lack  of  any  criminal
history but a lack of a significant criminal history . .  .  .”[2]   One  of
Warlick’s attorneys later argued as mitigation that Warlick’s
      crimes have all been misdemeanors prior to this time and  they’ve  all
      involved his former wife, Annie Warlick.  The only  place  that’s  not
      100% true is that he had a reckless driving and  he  had  a  resisting
      arrest involving an assault back in  Tennessee  when  he  was  roughly
      twenty-nine years old.


Nevertheless,  the  trial   court   rejected   this   proffered   mitigating
circumstance,  observing  that  Warlick’s  criminal  history  “certainly  is
significant and I suppose as a matter of  hindsight  it’s  what  led  up  to
where we are today, a series of domestic batteries, invasion  of  privacies,
all involving  domestic  type  of  matters.”   This  was  not  an  abuse  of
discretion.[3]
      Nor did the trial court  abuse  its  discretion  by  failing  to  find
Warlick’s surrender to the police to be mitigating.  Warlick shot  Annie  in
plain view of her brother who was sitting a  few  feet  away.   Had  he  not
surrendered, he would  no  doubt  have  been  apprehended  in  short  order.
Compare Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997)  (“[D]efendant’s
eventual capture and arrest were nigh unavoidable, and we  cannot  say  that
the trial court abused its discretion in failing to find that his  voluntary
statement  to  police  was  a  mitigating  circumstance  entitled   to   any
significant weight.”) with Brewer v. State,  646  N.E.2d  1382,  1386  (Ind.
1995) (“[A]ppellant had clearly succeeded  in  escaping  responsibility  for
the heinous crime that he had committed nearly fifteen  years  before.   His
surrender  and  subsequent  confession  provided  a  major  benefit  to  the
community; that benefit to society  should  be  reflected  in  the  sentence
imposed.”).

         III. Weighing the Aggravating and Mitigating Circumstances

      As a final point, Warlick  argues  that  the  trial  court  failed  to
properly weigh the aggravating and mitigating  circumstances.   He  concedes
that the trial court has discretion in determining what weight to assign  to
these factors, but nonetheless contends that the trial court gave  too  much
weight to  the  aggravating  circumstance  and  not  enough  weight  to  the
mitigating  circumstances.    His   argument   regarding   the   aggravating
circumstance relies on Justice DeBruler’s concurring opinion in Matheney  v.
State, 583 N.E.2d 1202, 1210  (Ind.  1992):   “[W]here  the  intent  of  the
burglary is the intent to kill, the weight  of  the  aggravator  is  greatly
diminished, for the mind had formed but a  single  felonious  intent.”   The
majority opinion did not embrace this view but rather  held:   “The  General
Assembly could  reasonably  have  determined  that  a  murder  committed  by
breaking and entering a dwelling in the place where a person should be  able
to feel secure, merited the death penalty.”   Id.  at  1208.   Although  the
aggravating circumstance here, and in Matheney, may not  be  the  weightiest
one, the trial court was certainly allowed to give it considerable weight.
      Warlick also argues that the trial court did not  give  enough  weight
to the mitigating circumstances.  However, as explained in Part II.,  supra,
the trial court did not abuse its discretion by failing  to  find  Warlick’s
criminal   history   or   acceptance   of   responsibility   as   mitigating
circumstances.  Therefore, what  remains  is  Warlick’s  remorse  after  the
offense as the sole  mitigating  circumstance  to  be  weighed  against  his
intentional killing  of  Annie  during  the  course  of  a  burglary  as  an
aggravating  circumstance.   The   trial   court   concluded   that   “[t]he
aggravating circumstance of the intentional killing by the defendant,  Ricky
P. Warlick, Sr. of the victim, Annie Warlick, during  the  commission  of  a
felony burglary, substantially outweighs the mitigating circumstance of  the
defendant[’]s remorse.”
      Although this Court has the constitutional  authority  to  review  and
revise sentences, Ind. Const. art. VII, ' 4, it will not do  so  unless  the
sentence imposed is Amanifestly unreasonable in light of the nature  of  the
offense and the character of the offender.@  Ind. Appellate  Rule  17(B).[4]
This Court=s review under Rule  17(B)  is  very  deferential  to  the  trial
court: A[T]he  issue  is  not  whether  in  our  judgment  the  sentence  is
unreasonable, but  whether  it  is  clearly,  plainly,  and  obviously  so.@
Prowell v. State, 687 N.E.2d 563,  568  (Ind.  1997).   The  nature  of  the
offense, the premeditated killing of one’s estranged wife  by  shooting  her
at close range  without  provocation,  is  severe  and  troubling.   Weighed
against the character of the offender, a man who showed  remorse  after  the
fact but had a history of misdemeanor domestic offenses against the  victim,
does not lead us to conclude that a sentence of  life  imprisonment  without
parole is manifestly unreasonable.

                                 Conclusion

      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
      SULLIVAN, J., concurs in result.
-----------------------
[1]  Although Warlick’s principal brief merely asserts that the violation
of a protective order was not alleged, his reply brief adds that “[t]he
only evidence of a restraining order at the penalty phase was the mention
of a ‘restraining order’ the terms of which were not discussed and the
existence of which was never formally determined.”  He further points out
that its existence “was based solely on hearsay.”  However, Warlick did not
object to this testimony and the “[f]ailure to object at trial waives any
claim of error and allows otherwise inadmissible hearsay evidence to be
considered for substantive purposes and to establish a material fact at
issue.”  Allen v. State, 686 N.E.2d 760, 775 (Ind. 1997).
[2]  The death penalty statute lists “[t]he defendant has no significant
history of prior criminal conduct” as a mitigating circumstance.  Ind. Code
§ 35-50-2-9(c)(1) (1998).  This language differs from the non-capital
sentencing statute which provides as a mitigating circumstance that the
defendant “has no history of delinquency or criminal activity, or the
person has led a law-abiding life for a substantial period before
commission of the crime.”  Id. § 35-38-1-7.1(c)(6).  In the non-capital
context, a single conviction or juvenile adjudication may negate this
mitigating circumstance.  See, e.g., Bufkin v. State, 700 N.E.2d 1147, 1153
(Ind. 1998).  In the capital context, however, the language of the statute
suggests that something more is required to constitute a “significant”
criminal history.
[3]  As we recently observed in reviewing a sentence in a non-capital case,
“[s]ignificance varies based on the gravity, nature and number of prior
offenses as they relate to the current offense.”  Wooley v. State, 716
N.E.2d 919, 929 n.4 (Ind. 1999).  Here, Warlick was convicted of murdering
the same woman against whom he had committed other domestic offenses.
[4]  Warlick points to Article I, § 16 of the Indiana Constitution.
However, the prohibition against cruel and unusual punishment is “aimed at
the kind and form of punishment, rather than the duration and amount.”
Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998) (quoting Wise v. State,
272 Ind. 498, 502, 400 N.E.2d 114, 117 (1980)).  See also Lawrence v.
State, 268 Ind. 330, 339-40, 375 N.E.2d 208, 213-14 (1978) (sentence of
life imprisonment does not violate Article I, § 16).

