Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                             FILED
                                                           Sep 07 2012, 8:54 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                            CLERK
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                              GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                ELLEN H. MEILAENDER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DWAYNE RHOINEY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1107-CR-650
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Charles A. Wiles, Senior Judge
                            Cause No. 49G03-0410-PC-182728


                                    September 7, 2012

                OPINION ON REHEARING - NOT FOR PUBLICATION

BARTEAU, Senior Judge
       We issued an opinion in Rhoiney v. State, No. 49A02-1107-CR-650 (Ind. Ct. App.

May 22, 2012), affirming the sentence the trial court imposed upon Dwayne Rhoiney

after remand from a previous appeal. Rhoiney has filed a petition for rehearing, asking

that we reconsider our decision with regard to the weighing of aggravating and mitigating

factors. We grant rehearing for the purpose of clarifying this issue but affirm our original

opinion in all other respects.

       Rhoiney argued in this appeal that the trial court, in resentencing him, failed to

weigh the aggravating factor of multiple victims against the mitigating factors. In our

opinion, we stated that the trial court did not need to weigh aggravating versus mitigating

factors, citing Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218 (2007). Rhoiney, slip op. at 7.

       Rhoiney notes that he committed his crimes prior to the issuance of Anglemyer. In

general, “the law [that is] in effect at the time that the crime was committed is

controlling.” Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied.

Rhoiney committed his crimes in 2004. Consequently, it is necessary to apply a pre-

Anglemeyer standard of sentencing review.        Prior to the issuance of Anglemyer, a

sentencing court’s statement was required to identify all significant aggravating and

mitigating factors, state why each is considered to be aggravating or mitigating, and

weigh the aggravating factors against the mitigating factors. Montgomery v. State, 694

N.E.2d 1137, 1141 (Ind. 1998).




                                             2
          In this case, Judge Charles A. Wiles presided over both the original sentencing

hearing and the resentencing hearing.1 At the original sentencing hearing, Rhoiney raised

as mitigating factors his age (twenty-one at the time of sentencing), difficult childhood,

drug addiction, remorse, and relatively minor criminal history. The trial court was “not

sure” that Rhoiney’s age was a mitigating factor, Original Sentencing Tr. p. 30, but

determined that his remorse was a mitigating factor and that his criminal record was not

“bad,” id. at 31.

          Upon both parties’ request, the resentencing court incorporated the evidence from

the first sentencing hearing into the resentencing hearing. The resentencing court then

stated:

                  [T]he Court is not going to reiterate the aggravators, the mitigators.
          Those were all specifically stated. The impact on the family, criminal
          history or lack of criminal history or whatever, that’s all in the record and
          there’s no sense or no useful purpose for the Court to go through those
          again. The only factor here we seem to be dealing with, as counsel points
          out, is the facts that there were multiple victims involved here and the Court
          didn’t specifically define that as an aggravator and that perhaps is the
          reason the Court of Appeals sent this back.

                 So considering different victims, and I would point out here
          assuming there were multiple murder victims here certainly the Court could
          consider multiple murder victims an enhanced or run the two and sentences
          [sic] consecutively which would have amounted to hundreds of years,
          perhaps.

                So on the resentencing, the Court today on the finding of guilty of
          murder is going to impose the sentence the Court did back several years
          ago of 55 years, which is the advisory sentence. On the criminal
          confinement charge as a Class B felony, the Court is going to sentence Mr.
          Rhoiney to the minimum sentence of six years and run that consecutive.

1
 Judge Wiles assumed senior judge status between the original sentencing hearing and the resentencing
hearing.
                                                 3
       And on the carrying a handgun without charge, the one year sentence is
       going to be run concurrent.

Resentencing Tr. pp. 21-22.

       The only aggravating factor cited by Judge Wiles on resentencing was the

presence of multiple victims. As the original sentencing court, Judge Wiles had the

benefit of previously reviewing Rhoiney’s mitigating circumstances. The resentencing

court did not explicitly state that the aggravating factor of multiple victims outweighed

the mitigating circumstances. Nevertheless, upon review of the transcripts it appears that

the trial court balanced the aggravating and mitigating circumstances. See White v. State,

846 N.E.2d 1026, 1035 (Ind. Ct. App. 2006) (affirming where the record demonstrates

that a balancing of aggravating and mitigating factors occurred even though the trial court

did not explicitly state that it had weighed those factors), trans. denied.

       Thus, under the pre-Anglemyer sentencing scheme, the trial court did not err in

considering aggravating and mitigating factors. Subject to this clarification, our earlier

opinion is affirmed in all respects.

FRIEDLANDER, J., and BAILEY, J., concur.




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