Lewis v. State, No. 45S00-1312-LW-512, ___ N.E.3d ___ (Ind. June 17, 2015).

Massa, J.

….

IV. The Sentencing Order Did Not Contain a Personal Statement that Life Without Parole Was an Appropriate Punishment, in Violation of Harrison v. State and Pittman v. State.

Indiana Code section 35-50-2-9(g) (2014) states, with respect to sentencing after a murder conviction:

If the hearing is to the court alone, . . . the court shall:

(1) sentence the defendant to death; or

(2) impose a term of life imprisonment without parole;

only if it makes the findings described in subsection (l).

Indiana Code section 35-50-2-9(l) requires the State to prove beyond a reasonable doubt that at least one aggravating circumstance exists and that it outweighs the mitigating circumstance(s). This, however, is not the end of the inquiry.

In Harrison v. State, we held that a trial court’s sentencing order imposing a capital sentence must, at a minimum, address the following four issues: (1) “identify each mitigating and aggravating circumstance found”; (2) “include the specific facts and reasons which lead the court to find the existence of each such circumstance”; (3) “articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence”; and (4) “the trial court’s personal conclusion that the sentence is appropriate punishment for this offender and this crime.” 644 N.E.2d 1243, 1262 (Ind. 1995). In 2002, the applicable statute regarding sentences of death or life without parole was revised, such that the trial court no longer made the final sentencing determination in all cases. See Pittman v. State, 885 N.E.2d 1246, 1252–53 (Ind. 2008). We therefore held in Pittman that “under the current statute sentencing orders imposing the death penalty or life imprisonment without parole must comply with Harrison’s requirements only when the trial court sentences without a jury’s findings and recommendation.” Id. at 1253. This is what occurred here, and neither the trial court’s statements at the sentencing hearing, nor its ultimate sentencing order, contain the last Harrison/Pittman factor: a personal conclusion by the judge that life without possibility of parole is the appropriate sentence for Lewis.8 We therefore reverse the sentence of life without possibility of parole, and remand to the trial court for a revised sentencing order consistent with Harrison and Pittman. [Footnote omitted.]

[Footnote 8:] In fact, a fair reading of the sentencing hearing transcript is that the trial court did not agree with the sentence, but believed Indiana Code section 35-50-2-9(g) allowed for no lesser sentence to be imposed. On that point, we believe the trial court erred. Subsection (g) does not require a trial court to impose no less than a sentence of life without possibility of parole if the conditions of subsection (l) are found to exist; rather, it provides that one of those sentences may only be imposed if the subsection (l) conditions are met. The trial court has the same discretion as the jury to impose a lesser sentence, irrespective of the subsection (l) analysis.

….

Rush, C.J., and Dickson, Rucker, and David, JJ., concur.