                                                               FILED
                                                          Oct 18 2019, 12:15 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).


                   Decided: October 18, 2019

Appeal from the Harrison Superior Court, No. 31D01-1308-MR-508
       The Honorable Vicki L. Carmichael, Special Judge
                       On Direct Appeal



                     Per Curiam Opinion
                      All Justices concur.
Per curiam.

   After remand in Schuler v. State, 112 N.E.3d 180 (Ind. 2018), the trial
court entered a revised order sentencing Kevin Andrew Schuler to life
imprisonment without parole (“LWOP”) for his conviction for murder
and to sixty-five years for felony murder. Schuler appeals the revised
order and argues the LWOP sentence must be vacated because the trial
court impermissibly relied on non-statutory aggravating circumstances.
Finding no error, we affirm.


Facts and Procedural History
   The facts are set out in greater detail in Schuler. Briefly stated, the
evidence showed Schuler and Austin Scott broke into the home that
Asenath Arnold shared with Gary Henderson, Scott fatally stabbed
Henderson, and Schuler intentionally killed Arnold during a burglary of
the home. Specifically,


      Schuler punched Arnold and she stumbled back to her bed.
      Schuler then took the singletree [a wooden bar normally used
      to hold horses together] 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.

Id. at 184 (quoting St. Ex. 30-4 at 47:53-52:00). Although Scott stabbed
Arnold in the face, Schuler would later tell police, “I’m almost positive I
killed her.” Id. (quoting Tr. Vol. 2 at 250). Arnold’s head was significantly
disfigured in the attack, and an autopsy revealed Arnold died from
multiple blunt force injuries and sharp force injuries to the head. Id.

    Schuler pled guilty to Count 1, the murder of Arnold, and Count 2, the
felony murder of Henderson, and in exchange the State agreed to dismiss
its request for the death penalty and instead to request LWOP. The parties
agreed the court alone would determine whether to impose LWOP or a


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term of years. Id. at 185. After a hearing, the court orally stated its reasons
for sentencing Schuler to LWOP on Count 1 and sixty-five years on Count
2 to be served consecutively. Id.

   Schuler raised four issues in his first appeal. We affirmed on the first
three issues but on the fourth remanded for a clearer sentencing statement
that satisfies Harrison v. State, 644 N.E.2d 1243 (Ind. 1995). On remand, the
trial court issued a revised order sentencing Schuler to LWOP on Count 1
and sixty-five years on Count 2. Schuler appeals the revised order.


Discussion and Decision
   This Court reviews a sentencing order for an abuse of discretion.
Schuler, 112 N.E.3d at 190. An abuse occurs only if the decision is clearly
against the logic and effect of the facts and circumstances before the court,
or the reasonable, probable, and actual deductions to be drawn therefrom.
Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014). An abuse of discretion occurs if,
among other things, the reasons given by the sentencing court are
improper as a matter of law. Schuler, 112 N.E.3d at 190. This Court
presumes that a court that conducts a sentencing hearing renders its
decision solely on the basis of relevant and probative evidence. Id. at 189.

   Indiana’s statute requires only one listed aggravating circumstance for
imposition of an LWOP sentence. See Ind. Code § 35-50-2-9(a). But in
determining whether to impose LWOP, the trial court must limit the
aggravating circumstances eligible for consideration to those specified in
the statute. Schuler, 112 N.E.3d at 191. The court may not consider non-
statutory aggravating circumstances when imposing LWOP. Holsinger v.
State, 750 N.E.2d 354, 362 (Ind. 2001).

   Schuler acknowledges the trial court “did properly find and consider
the charged statutory aggravator,” Appellant’s Supp. Br. at 5, the
intentional killing of Arnold during a burglary. But he argues the court
erred by also considering the following as non-statutory aggravating
circumstances: (1) the Presentence Investigation Report’s risk assessment,
(2) that Schuler’s “participation in this crime was not minor,” (3) that “two




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innocent victims were killed,” and (4) that “there is no excuse or
justification for those killings[.]” Revised Sentencing Order.

   The revised order clearly states, “The aggravating factor the Court
relies on in sentencing the Defendant is the intentional killing of Asenath
Arnold while committing a Burglary.” It adds that “the aggravating factor
significantly outweighs the only mitigating factor in this case,” Schuler’s
lack of a significant criminal history. The court’s repeated use of
“aggravating factor” (singular) indicates it relied on only one aggravating
circumstance—the one Schuler acknowledges the court properly
considered. And nothing in the revised order shows otherwise.

   In Schuler’s first appeal we rejected his argument that the trial court
abused its discretion by considering the risk assessment and treating it as
an aggravating circumstance. Schuler, 112 N.E.3d at 189. That holding is
the law of the case, and Schuler identifies no extraordinary circumstances
warranting a different result here. See Hopkins v. State, 782 N.E.2d 988, 990
(Ind. 2003).

  The trial court did not find a non-statutory aggravator by noting
Schuler’s “participation in this crime was not minor.” That language could
explain either how the court weighed the intentional-killing aggravator or
why the court was not finding as a mitigating circumstance that “[t]he
defendant was an accomplice in a murder committed by another person,
and the defendant’s participation was relatively minor.” I.C. § 35-50-2-
9(c)(4); accord Wisehart v. State, 693 N.E.2d 23, 60 n.61 (Ind. 1998) (“[T]he
trial court did consider all the mitigation evidence presented by Wisehart,
but found none of the circumstances to be mitigating,” where trial court
had found, among other things, that “the defendant's participation was
not minor.”), reh’g denied. Finding that Schuler’s participation was “not
minor” was particularly appropriate after Schuler’s counsel argued at the
sentencing that Schuler did not intentionally kill Arnold and that Scott
was charismatic and manipulative, was more culpable than he admitted to
police, and tried to shift blame away from himself and onto Schuler. (Tr.
Vol. 7 at 133-40.)

   Finally, there is no error in the revised order’s statement that “two
innocent victims were killed, and there is no excuse or justification for


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those killings[.]” Because the court was also imposing a term of years for
the felony murder of Henderson, reference to the number of victims was
appropriate. See Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008)
(“Consecutive sentences reflect the significance of multiple victims.”);
Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (same), trans.
denied. Moreover, the statute includes as mitigating circumstances, among
others, that the victim was a participant in the defendant’s conduct and
“[a]ny other circumstances appropriate for consideration.” I.C. § 35-50-2-
9(c). The references to “innocence” and lack of “excuse or justification”
simply underscore that the court found no mitigating circumstance other
than Schuler’s lack of a significant criminal history.

  Concluding the revised order does not rely on non-statutory
aggravating circumstances to impose LWOP, we affirm.


All Justices concur.



ATTORNEYS FOR APPELLANT
Brent Westerfeld
Indianapolis, Indiana

Andrew J. Borland
Indianapolis, Indiana

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

Andrew A. Kobe
Deputy Attorney General

Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana




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