Thomas Tracy v. State of Indiana
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FOR PUBLICATION
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN
Lawrenceburg, Indiana
STEVE CARTER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS TRACY,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 15A04-0409-CR-498
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James Humphrey, Judge
Cause No. 15C01-0311-FA-010
November 16, 2005
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Thomas Tracy appeals his five convictions, including attempted murder, stemming
from his actions that culminated in the shooting of an on-duty police officer. Because
battery as a Class C felony is neither inherently nor factually included in attempted
murder as charged in this case, the trial court did not err by refusing to instruct the jury
on battery. In addition, Tracy has forfeited his Blakely challenge by not objecting in the
trial court. In any event, the trial court did not err in enhancing Tracy’s sentences
because of his prior convictions. Finally, Tracy’s 107-year sentence is not inappropriate
given his extensive criminal history and his leading of police officers on a high-speed
chase on city streets during a high-traffic time and firing of multiple shots, one of which
struck an officer in the thigh. We therefore affirm the trial court.
Facts and Procedural History
On November 22, 2003, the Indiana State Police issued a dispatch that Tracy was
wanted for offenses in Marion County, that he was armed and dangerous, and that he
might be traveling to Dearborn County. The dispatch included a physical description of
Tracy as well as the possible vehicles in which he might be traveling.
Officer Joshua Daugherty of the Aurora Police Department heard the dispatch and
was sitting in his patrol car watching traffic on U.S. 50 in Dearborn County when he
observed Tracy drive by in one of the described vehicles. Without activating his siren or
lights, Officer Daugherty pulled in behind Tracy, confirmed the license plate number
with dispatch, and requested back up. In the meantime, Tracy pulled over to the side of
the road and motioned for Officer Daugherty to pass him. Believing it was an ambush,
2
Officer Daugherty exited his car with his weapon drawn and ordered Tracy to show his
hands. Tracy sped off. By that time, two other police officers had arrived on the scene,
and they pursued Tracy. Officer Daugherty ran back to his car and joined the pursuit.
During the course of the pursuit, Tracy abruptly turned into a parking lot, but the
two other police officers could not turn in time and drove on past. Officer Daugherty,
who was farther behind them, was able to make the turn. As Tracy was maneuvering his
vehicle out of the parking lot, he made eye contact with Officer Daugherty, stuck his arm
out the window, and fired several gunshots at him. One of the shots passed through the
driver’s side door of Officer Daugherty’s patrol car, striking him in the left thigh. Officer
Daugherty and the other officers continued pursuing Tracy, reaching speeds of up to 100
miles per hour, until Tracy drove across stop sticks, which deflated his tires. Tracy then
fled on foot with his gun. Officer Daugherty and the other officers pursued Tracy on foot
until he eventually surrendered.
The State charged Tracy with Count I: Attempted Murder, a Class A felony; 1
Count II: Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B
felony; 2 Count III:
Resisting Law Enforcement as a Class D felony; 3 Count IV:
Resisting Law Enforcement as a Class D felony; 4 and Count V: Auto Theft as a Class D
1
Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a).
2
Ind. Code § 35-47-4-5.
3
4
Ind. Code § 35-44-3-3(a)(3), (b)(1)(B).
Id.
3
felony. 5 The State also alleged that Tracy was a habitual offender. 6 A jury trial was then
held. During the course of the trial, Tracy tendered an instruction on Battery as a Class C
felony as a lesser-included offense of attempted murder, which the trial court refused to
give. The jury found Tracy guilty as charged, except it found him guilty of Criminal
Conversion, a Class A misdemeanor, 7 as a lesser-included offense of auto theft. The jury
also found him to be a habitual offender. Finding five aggravators and no mitigators, the
trial court sentenced Tracy to the maximum term for each of his felony convictions,
ordered all the sentences to be served consecutively, and enhanced his sentence by thirty
years for the habitual offender finding, for an aggregate term of 107 years. Tracy now
appeals.
Discussion and Decision
Tracy raises three issues on appeal. First, he contends that the trial court erred in
refusing to give his tendered instruction on battery as a lesser-included offense of
attempted murder. Second, Tracy contends that the trial court enhanced his sentences in
violation of Blakely. Last, he contends that his 107-year sentence is inappropriate. We
address each issue in turn.
5
Ind. Code § 35-43-4-2.5(b).
6
Ind. Code § 35-50-2-8.
7
Ind. Code § 35-43-4-3.
4
I. Battery as a Lesser-Included Offense of Attempted Murder
Tracy contends that the trial court erred by refusing to give his tendered
instruction on battery as a Class C felony as a lesser-included offense of attempted
murder. In Wright v. State, 658 N.E.2d 563 (Ind. 1995), the Indiana Supreme Court
developed a three-part test that trial courts should perform when called upon by a party to
instruct a jury on a lesser-included offense of the crime charged. First, the trial court
must compare the statute defining the crime charged with the statute defining the alleged
lesser-included offense to determine whether the alleged lesser-included offense is
inherently included in the crime charged. Fisher v. State, 810 N.E.2d 674, 678 (Ind.
2004). Second, if the trial court determines that an alleged lesser-included offense is not
inherently included in the crime charged under step one, then the court must determine
whether the alleged lesser-included offense is factually included in the crime charged. Id.
If the alleged lesser-included offense is neither inherently nor factually included in the
crime charged, then the trial court should not give an instruction on the alleged lesserincluded offense. Id. Third, if the trial court determines that an alleged lesser-included
offense is either inherently or factually included in the crime charged, then the court must
look at the evidence presented in the case by both parties to determine whether there is a
serious evidentiary dispute about the element or elements distinguishing the greater from
the lesser offense and if, in view of this dispute, a jury could conclude that the lesser
offense was committed but not the greater. Id. It is reversible error for a trial court not to
give an instruction, when requested, on an inherently or factually included offense if
there is such an evidentiary dispute. Id.
5
Battery as a Class C felony is not an inherently included offense of attempted
murder. Edwards v. State, 773 N.E.2d 360, 364 (Ind. Ct. App. 2002), trans. denied.
Determining whether battery is a factually included offense of attempted murder
“involves comparing the statute defining the alleged lesser[-]included offense with the
charging information in the case.” Noble v. State, 725 N.E.2d 842, 846 (Ind. 2000);
Means v. State, 807 N.E.2d 776, 783-84 (Ind. Ct. App. 2004), trans. denied; see also
Edwards, 773 N.E.2d at 364-65 (comparing charging information for attempted murder
with elements of alleged lesser-included offense of battery as a Class C felony).
Battery as a Class C felony is defined by statute as a knowing or intentional
touching of another person in a rude, insolent, or angry manner by the use of a deadly
weapon. Ind. Code § 35-42-2-1(a)(3). The charging information for attempted murder
alleged in pertinent part that “Tracy did engage in conduct that constituted a substantial
step toward commission of murder, to-wit: did fire a loaded gun at Joshua Daugherty
while Daugherty was engaged in his official duties.” Appellant’s App. p. 16-17. A
comparison of the elements of battery with the charging information for attempted
murder reveals that battery requires a touching but the charging information for attempted
murder does not allege one. As charged in this case, attempted murder can be proved
without proving that a battery occurred; in other words, the State only had to prove that
Tracy shot at Officer Daugherty but did not actually shoot him. Because the act as
alleged in the charging information for attempted murder does not establish all of the
elements of battery as a Class C felony, battery is not a factually included offense of
attempted murder in this case. Cf. Edwards, 773 N.E.2d at 365 (concluding that battery
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as a Class C felony was factually included in the offense of attempted murder because the
charging information for attempted murder alleged that the defendant stabbed “at and
against” the victim). Because battery as a Class C felony is neither inherently nor
factually included in attempted murder as charged in this case, the trial court did not err
by refusing to give Tracy’s instruction on battery.
II. Blakely
Tracy next contends that the trial court enhanced the sentences for his felony
convictions in violation of Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied, by
relying on aggravators not found by a jury beyond a reasonable doubt. Specifically, the
trial court found the following aggravators: (1) Tracy’s substantial criminal history; (2)
the nature and circumstances of the crime; (3) Tracy’s complete lack of remorse; (4)
Tracy is likely to commit future crimes; and (5) Tracy is in need of correctional treatment
that can best be provided by commitment to a penal facility. In Smylie v. State, 823
N.E.2d 679 (Ind. 2005), petition for cert. filed (U.S. Jun 02, 2005) (No. 04-10472), our
supreme court held that Blakely applies retroactively to all cases on direct review at the
time that Blakely was announced even if a defendant failed to object to his sentence in the
trial court. Clark v. State, 829 N.E.2d 589, 590 (Ind. Ct. App. 2005).
The United States Supreme Court issued Blakely on June 24, 2004, and Tracy’s
sentencing hearing was held on August 11, 2004, almost two months later. Further, the
record shows that Tracy did not object to his sentence at any time before the trial court.
Because the record shows that Tracy failed to object to his sentence in the trial court,
Tracy has forfeited this issue for appellate review. See id.; see also Gornick v. State, 832
7
N.E.2d 1031, 1033-34 (Ind. Ct. App. 2005), trans. denied; but see Muncy v. State, 834
N.E.2d 215, 218 (Ind. Ct. App. 2005) (Barnes, J., concurring in part and dissenting in
part) (“With respect to defendants sentenced before Smylie was decided [on March 9,
2005], I do not agree that there is waiver or forfeiture of a Blakely claim for failing to
object to the trial court.”).
Notwithstanding this forfeiture, Tracy still cannot prevail. A single aggravating
circumstance can justify the imposition of an enhanced sentence. Powell v. State, 769
N.E.2d 1128, 1135 (Ind. 2002), reh’g denied; see also Morgan v. State, 829 N.E.2d 12,
15-16 (Ind. 2005).
Under Blakely, prior convictions may be used to enhance a
defendant’s sentence without a finding of additional facts by a jury. Williams v. State,
830 N.E.2d 107, 113 (Ind. Ct. App. 2005), trans. denied. The record shows that Tracy
has eight prior convictions and three probation violations in three different states. 8
As for the aggravators that Tracy is likely to commit future crimes and that he is in
need of correctional treatment that can best be provided by commitment to a penal
facility, our supreme court has recently observed that a defendant’s Sixth Amendment
rights “are not implicated when the language of an aggravator is meant to describe the
factual circumstances, not to serve as a fact itself.” Morgan, 829 N.E.2d at 17. Giving as
an example the aggravator “failed to rehabilitate” or “failed to deter,” the court noted that
“[s]uch observations merely describe the moral or penal weight of actual facts. The ‘fact’
8
Tracy’s Pre-Sentence Investigation Report details the following convictions: Possession of
Marijuana in 1982; Malicious Destruction of Personal Property in 1982; Attempted Third Degree
Criminal Sexual Conduct in 1983; Delivery of Marijuana in 1984; Robbery in 1985; Vehicle Theft in
1989; Disorderly Conduct in 1991; and Possession of a Controlled Substance in 1994. It appears that five
of these are felonies. The PSI also reports probation violations in 1983, 1984, and 1991.
8
of being undeterred is not established by a statement to that effect, but rather by the
underlying fact of prior convictions.” Id.
The court concluded that “the use of such
underlying factors to support an aggravator does not require the independent judicial factfinding at issue in Blakely.” Id. Rather, it reflects the efforts of a judge to concisely
describe what the underlying facts mean and why they demonstrate that a particular
defendant deserves an enhanced sentence. Id. at 17-18. Accordingly, the court held as
follows:
Because the use of underlying facts to support an enhanced sentence does
not violate the Sixth Amendment requirements of Blakely by allowing
impermissible independent judicial fact finding, we hold that sentences
enhanced by aggravators whose language is not specifically found by a jury
or admitted by the defendant, are not necessarily impermissible so long as
the aggravator in question was 1) supported by facts otherwise admitted or
found by a jury and 2) meant as a concise description of what the
underlying facts demonstrate and therefore relies upon a legal
determination otherwise reserved as a power of the judge.
Id. at 18.
Here, Tracy’s sentences were enhanced in part because the trial court concluded
that he is likely to commit future crimes and that he is in need of correctional treatment
that can best be provided by commitment to a penal facility, neither of which was found
by the jury or admitted by Tracy. However, these are not impermissible considerations
because they are supported by Tracy’s prior convictions and were meant as a concise
description of what his prior convictions demonstrate. Although “[t]hey cannot serve as
separate aggravating circumstances,” Morgan, 829 N.E.2d at 17, the trial court properly
considered Tracy’s likelihood to commit future crimes and the fact that he is in need of
correctional treatment that can best be provided by commitment to a penal facility
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because they are legitimate observations about the weight to be given to Tracy’s criminal
history. See id.; see also Neff v. State, 832 N.E.2d 1006, 1011 (Ind. Ct. App. 2005)
(concluding that the risk that the defendant will reoffend is not a separate aggravator but
a “legitimate observation[] about the weight to be given to [the defendant’s] criminal
history”), trans. pending. The trial court did not err in enhancing the sentences for
Tracy’s felony convictions. 9
III. Appropriateness of Sentence
Tracy last contends that his 107-year sentence is inappropriate. This Court “may
revise a sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). Although appellate
review of sentences must give “due consideration” to the trial court’s sentence because of
“the special expertise of the trial bench in making sentencing decisions,” Bennett v. State,
787 N.E.2d 938, 949 (Ind. Ct. App. 2003), trans. denied, Appellate Rule 7(B) is “an
authorization to revise sentences when certain broad conditions are satisfied.” Neale v.
State, 826 N.E.2d 635, 639 (Ind. 2005).
9
Tracy also argues that “the rule of Lenity prohibits” the trial court from enhancing his sentences
based on his prior convictions. Appellant’s Br. p. 12.
Specifically, Tracy asserts that his prior
convictions were used to prove him to be a habitual offender and to prove him to be a serious violent
felon. Therefore, Tracy’s argument continues, the trial court should not have used his prior convictions a
third time to enhance his sentences. The record shows that only one of Tracy’s prior convictions was
used to prove him to be a serious violent felon and that four or five convictions were used to prove him to
be a habitual offender although only two are required. Tracy’s criminal history consists of more than this;
rather, it consists of eight convictions and three probation violations. In addition, Tracy has pointed to no
authority that provides that a trial court cannot use a defendant’s prior convictions to enhance his sentence
when all or some of those convictions have already been used to prove a defendant to be a serious violent
felon and to be a habitual offender. We decline to hold that the Rule of Lenity prohibits such use.
10
The nature of Tracy’s offenses are that law enforcement authorities in Dearborn
County were alerted to be on the lookout for Tracy, who was wanted for crimes in
Marion County and who was considered to be armed and dangerous. Indeed, Tracy told
Lucinda Updike two days before that if he encountered the police, “[h]e would kill
them.” Tr. p. 288. When Officer Daugherty spotted Tracy driving on U.S. 50 in
Dearborn County, he followed him and eventually ordered him to show his hands.
However, Tracy sped off, and a high-speed chase ensued. Tracy weaved in and out of
traffic in a heavily congested area of Dearborn County, putting citizens at risk. He also
fired several gunshots, one of which struck Officer Daugherty in the thigh. Indeed, Tracy
had multiple loaded weapons in his vehicle, including a sawed-off shotgun.
After
shooting Officer Daugherty, Tracy continued to lead the police officers on the high-speed
chase. And when the stop sticks deflated Tracy’s tires, he exited his vehicle and fled on
foot with his gun.
Tracy’s character is best evidenced by his lengthy criminal history, which spans
three states and includes approximately eight convictions and three probation violations.
Tracy also had several charges, including murder, pending in Marion County.
In
addition, after the shooting, Tracy made statements to the news media that his mistake in
this case was having poor aim.
Tracy also made derogatory statements to Officer
Daugherty upon leaving the courtroom following his conviction.
11
After due consideration of the trial court’s decision, we cannot say that Tracy’s
107-year sentence is inappropriate in light of the nature of his offenses and his character.
As such, we decline his invitation to reduce his sentence. 10
Affirmed.
SULLIVAN, J., and FRIEDLANDER, J., concur.
10
Tracy also argues that his sentence violates Article I, Section 16 of the Indiana Constitution,
which provides, “All penalties shall be proportioned to the nature of the offense.” However, Tracy has
waived this argument for failure to present a cognizable argument. See Ind. Appellate Rule 46(A)(8)(a).
12
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