A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE A TTORNEY S FOR A MIC I C URIAE

Michael B. Troemel Gregory F. Zoeller [see attachment] Lafayette, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
Pat rick Harrington Tippecanoe County Prosecuting Attorney Lafayette, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 79S02

- 0908

- CR

- 365
A NTHONY M ALENCHIK , Appellant (Defendan t b e low),

v. S TATE O F I NDIANA , Appellee (Plaintiff below).

_________________________________ Appeal from the Tippecanoe Superior Court , No. 7 9D05

- 0711

- FD

- 628

The Honorable Les A. Meade , Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 7 9A02

- 0902

- CR

- 133

_________________________________

June 9 , 2010 Dickson, Justice.

Following his plea of guilty to Receiving Stolen Property, a class D felony, and his a dmission to being a Habitual Offender , the defendant was s entenced to a total of six years, with two years suspended . T he defendant appeals his sentence and presents two claims : (1) the trial
court erroneously considered as an aggravating circumstance the numerical score s reported by the Tippecanoe County Probation Department after it conducted evaluati o n s of the defendant u sing certain offender risk evaluation and assessment instrument s; and (2) his sentence was ina p-2

propriate and should be revised. The Court of Appeals r ejected both claims and affirmed in a memorandum decision. Malenchik v. State , No. 79A02

- 0902

- CR

- 133 (Ind. Ct. App. June 5, 2009). We granted transfer t o address the first claim and invited supplemental briefs of the pa rties and amic i curiae

. As explain ed below, we hold that legitimate offender assessment instr uments do not replace but may inform a trial court's sentencing determinations and that, b e cause the trial court's consideration of the defendant's assessment model score s w as only supplemental
to other sentencing evidence that independently support ed the sentence imposed, we affirm the

se n tence. 1

The pre

- sentence investigation report filed by the Tippecanoe County Probation Depar tment 2 informed the trial court that the department had completed a Level of Service Inventory

Revised (LSI

- R) covering "the areas of Criminal History, Education and Employment, Financial, Family, Accommodations , Leisure and Recre ation, Companions, Alcohol and Drugs, Emotional and Personal I ssues, and Attitudes and Orie ntation , " and on which the defendant "scored a 41" and thus "falls into the High Risk/Needs category." Appellant's Supp. App'x "Green V o lume I" at 8. The report also provided a more detailed breakdown of the evaluation. In addition, the r eport informed the trial court that the defendant had completed a Substance Abuse Subtle Scree ning Inventory (SASSI) that indicated he "has a high probability of hav ing a Substance Depe ndence Disor d er." Id.

On two occasions d uring the sentencing hearing , the judge ref erenced the LSI

- R and the SASSI results: You know I don't think I've seen a 20 year old here with the kind of criminal history you've developed. . . . [Y]ou've been through the system[;] it doesn't seem to make any

1 As to the defendant's claim of sentence inappropriateness and request for appellate sentence r evision, we summarily affirm the decis ion of the Court of Appeals. Ind. Appellate Rule 58(A)(2).

2 One exception to the mandatory statutory confidentiality of a pre

- sentence report is "upon sp ecific authorization by the court and the convicted person." Ind. Code § 35

- 38

- 1

- 13(b). This stat utory confidentiality is referenced by Indiana Administrative Rule 9(G)(1)(viii). But case record information excluded from public access "may be made accessible if the information is declared by a court with juri sdiction over the case to be essential to the resolution of litigation." Ind. Admin. R. 9(G)(3). Because the defendant in this appeal is challenging his sentence and particularly the manner in which the trial court considered information in the pre

- sentence report, we authorize and declare publi cly accessible the defe ndant's pre

- sentence report information discussed in this op i nion.3

changes

. . . . [ Y ] our LSIR score is hi gh. Your SASSI score is high with a high probabil ity of substance dependence disorder. Y our criminal history shows a complete disregard of other people and . . . an unwillingness or inability to change your behavior. Appellant's App'x at 40. You know wh at you're going to have to start climbing out of the hole and that's what we're talking about now. But Anthony, if you want to start climbing you're going to have to start telling the truth to yourself and to others. Once again, that's up to you. If you e xpect people to believe things like this, you know what, nobody is going to believe there is any change. Do you understand? All of this is based upon the character, the risk of rec idivism, which is quite high according to the LSIR and the SASSI we've g ot a number of things that we need to do and frankly when you come out you'll get some treatment in the Department of C orrection and then I want you on supervised probation so that we can move you into pr oviders here in the community. Id . at 67. 3

The defendant contends that it was improper for the trial court to take into consideration the LSI

- R score. He argues that consideration of this score was disapproved in Rhodes v. State , 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008) , trans. not sought , that such models have not been recognized as scientifically reliable so as to qualify for admissibility under Indiana Evidence Rule 702, that the scoring models lack objective reliability , that they are not relevant to statut o ry aggravating circumstances , that they are unfairly discriminatory, that the use of the LSI

- R test in this case impinged upon his right to counsel , that the use of scoring models conflicts with Ind iana 's c onstitutional requirement that the penal code be founded on pri n ciples of reformation and not vindictive justice , and that using such scores may lead to an unwise fu n damental change in Indiana's se n tencing system.

The State urges that an evidence

- based tool such as the LSI

- R may be utilized in the se ntencing process if employed consistent ly with its proper purposes and limitations. The State a sserts that the LSI

- R has wid e spread acceptance, that it is widely recognized as valid and reliable,

3 As literally transcribed, the trial court's statement is somewhat garbled because of the absence of punctuation. It is unclear from the court reporter's transcrip tion whether the judge's sentence ended a f ter "quite high," with a new sentence beginning with "[A]ccording to . . .," or whether it ended with "SASSI," with a new sentence beginning with "[W]e've got a number . . . ." Thus we do not know whet h er the cour t was expressing that the risk of recidivism is "quite high according to the LSIR and the SASSI" or that "a c cording to the LSIR and the SASSI, we've got a number of things that we need to do."4

and that it does not i n trude upon but rather serves as a legitimate and valuable contribution to the
senten c ing process.

W e initially observe that the trial court 's sentencing decision was clearly based on factors apart from the defendant's LSI

- R and SASSI results. In the course of the sentencing colloquy, the judge emphasized th at the defendant ha s a significant criminal history , was on prob a tion at the time of the offense, ha s had two petitions to revoke probation in a prior case, ha s a history of disregarding others, has been unwilling to change his behavior, has a fundamental lack of hone sty, and h as a pattern of blaming circumstances rather than accepting responsibility . Appellant's App'x at 38, 40, 41, 42, 43, 61, 65, 66. The judge stated that he selected a sentencing program that would enable the d e fendant to complete his education in the Depar tment of Correction, then to move from there first to supervised probation "so that we can move you into providers here in the commun i ty," and then into unsupervised probation. Id. at 67. The trial judge did not rely on either the LSI

- R or SASSI as an in dependent aggravating factor in deciding to impose more than the adv i sory sentence.

The remaining issue is whether, and in what manner, a trial judge may consider results from t he LSI

- R , SASSI , or other similar assessment tools . Such instruments , often called "sco ring models , " are examp les of "evidence

- based practice "

-- "professional practices that are su pported by the best research evidence , consisting of scientific results related to intervention strat egies . . . derived from clinically relevant resea rch . . . based on system at ic reviews, reasonable effect si z es, statistical and clinical significance, and a body of supporting evidence." Roger K. Warren, Ev i dence

- Based Sentencing: The Application of Principles of Evidence

- Based Practice to State Senten cing Practice and Policy , 43 U .S.F. L. R EV . 5 85, 597 (2009) (internal quotation marks omitted)

.
To determine the proper role, if any, of evidence

- based practices in the asses s ment and management of penal consequences, we first note that Article 1, Sectio n 18 of the Indiana Co nstitution implores : "The penal code shall be founded on the principles of reformation, and not of vindictive justice." Presumably mindful of this objective, the General Assembly has enacted a sentencing scheme requiring that befo re sentencing a d e fendant in a criminal case, a trial court5

"must conduct a hearing to consider the facts and circumstances relevant to sentencing." I nd. Code § 35

- 38

- 1

- 3. For all felonies except those classified as class D felonies, the court may not
sente nce a convicted defendant until it considers a written pre

- sentence report prepared by a pr obation officer. Ind. Code § 35

- 38

- 1

- 8. Such pre
- sentence reports are also required before a trial court accepts a defendant's guilty plea. Ind. Code § 35

- 35

- 3

- 3; Reffett v. State , 571 N.E.2d 1227, 1229

– 30 (Ind. 1991). Among the information to be included in a pre
- sentence report is "the convicted person's history of delinquency or criminality, social history, employment hi s tory, family situ a tion, economic status, education, and personal habits." Ind. Code § 35

- 38

- 1

- 9 (b)(2)

. In determining what sentence to impose, a trial court is guided by a non

- exclusive statutory list of eleven aggravating and eleven mitigating circumstances. Ind. Code § 35

- 38

- 1

- 7.1 . These c r iteria, however, "do not limit the matters that the court may consider in determining the se ntence." Ind. Code § 35

- 38

- 1

- 7.1 (c). Indiana's statutory sentenc ing scheme pre sc ribes for each criminal offense a maximum and minimum sentence along with an "adv isory" sentence . A court may "impose any sentence within the statutory range without regard to the existence of aggrava ting or mitigating factors," but it must provide a "reasonably d e tailed recitation of the . . . reasons for imposing a particular senten ce." A n glemyer v. State , 868 N.E.2d 482, 489, 490 (Ind. 2007). Trial judges are granted additional criminal sentencing discretion including the authority to i mpose or suspend all or part of a sentence subject to pro bation and to establish the conditions of probation. Ind. Code § 35

- 50

- 2

- 2(a), (c). They also may direct that a person's fixed term of i mprisonment be served with the Indiana Department of Correc tion or permit placement in a co mmunity transition program. See Ind. Code § § 35

- 38

- 1

- 24, 25. 4

4 For the offense involved in the present case, Receiving Stol en Property as a class D fel o ny, the legislature prescribes "a fixed term of between six (6) months and three (3) years, with the advisory se ntence being one and one

- half (1 1⁄2) years," plus a possible fine of up to ten tho u sand dollars. Ind. Code § 35

- 50

- 2

- 7(a). In addition, where such an offender is found to be a h a bitual offender, the sentence will be enhanced by an additional fixed term of not less than the one and one

- half year advisory sentence and not more than four and one

- half years (three times t he adv i sory sentence). Ind. Code § 35

- 50

- 2

- 8(h). In the present case, the trial judge imposed a $500 fine and a sentence of three years for the underlying offense enhanced by three additional years upon determining that the defendant was a habitual offen der, for a t otal of six years, to be e x ecuted in the Indiana Department of Correction with credit for good time, with two years to be suspended with one year of supervised probation and one year of unsupe r vised probation upon specified conditions. Appella nt's App'x at 70.6

T his considerable judicial flexibility permit s the determination and management of penal consequences to be substantially tailored to each offender . While there remain v al id concerns that equivalent o f

fenders and offenses receive equivalent treatment at se ntencing , "Indiana has never adopted a mechanical a p proach to sentencing, and we have not identified any inflexible system that did not raise more problems than it solved." C ardwell v. State , 895 N.E.2d 1219, 1224 (Ind. 2008)

. We have thus expressed disa pproval of "[a]ny effort to force a sentence to r esult from some algorithm based on the number and definition of crimes and various cons equences." Id. But, t his does not diminish the objective that an individualized penal consequence should be efficaciou s in achieving the goal s of reformation and minimiz ing r e cidivism

.
For this goal , the concept of evidence

- based sentencing practices has considerable pro mise. The amicus brief of the Indiana Judicial Center inform s the Court of the growing acce p tance

an d use of evidence

- based practices in seeking to reduce offender recidivism and to improve se ntencing outcomes. In the 1970 s, the Wisconsin Department of Corrections designed the Wisco nsin Assessment and Classification System to measure the relative risk o f offenders and the level of services offenders might need. In the mid

- 1990 s , the Nationa l Institute of Corrections began promoting the use o f offender assessment instruments based on evidence

- based practices to i de ntify the risk of, and to reduce , offend er recidivism. The results of early criminal justice r e search led to the creation of " third

- generation " risk assessment tools such as the LSI

- R and the SASSI. Indiana has favo r ably considered risk assessment tools for the past fifteen years. Since 1995, the Judicial Conference has directed probation departments to assess the risk and needs levels of I ndiana's criminal offenders under their authority to adopt minimum standards and recommend ation s for probation department operations

. Ind

. Code § 11

- 13

- 1

- 8

. Indiana p robation depar tments have utilize d t he Indiana Risk Assessment Instrument and the I n diana Adult Needs A ssessment Instrument , which seek to " provide the trial court with information relevant to the o ffender's potential risk to the community and areas of need, allowing the [trial] court to a d dress treatment services and individualized probation condit ions in the sentencing order." Judicial Center Br. at 3

. 5 S everal local probation departments in Ind i ana recently began using the newer

5 Strong support for expanded use of these instruments is also evident from the April 23, 2010, action of the Board of Directors of the Indiana Judicial Conference in adopting policy recommend a tions for the widespread use of an expande d Indiana Risk Assessment System, as reviewed and a p proved by the Probation Officers Advisory Board and the Probation Committee of the Judicial Conference.7

third

- gener ation scoring tools. Id

. at 4. The J udicial C enter advises that, in comparison to Ind iana's original scoring models, the t hird

- generation risk asses s ment tools allow more adequate identification of criminogenic needs. Id

. By identifying these criminoge nic characteristics, an offender's specific factors can be address ed during his superv i sion or sentence and substantially decrease the likelihood of future criminal activity. Faye S. Taxman , Ph.D. et al ., Tools of the Trade: A G uide to Incorporating Scien ce into Practice , 3

– 4 (2004). T he third

- generation sco ring models are well supported by empirical data and provide target areas to change an individ ual's crim i nal behavior , thereby enhanc ing public safety. Christo pher T. Lowenkamp, Ph.D. & Kristin Bechte l, M.S., The Pr e dictive Validity of the LSI

- R on a Sample of Offenders Drawn f rom the Records of the Iowa Department of Corrections Data Management System , 71 F ED . P ROB ATION 25, 27

– 2 9 (Dec. 2007).

The scoring models at issue in the present case, the LSI

- R and the SASSI, are third

generation assessment tools

. According to the Center for Criminal Justice Research at the Un iversity of Cincinnati, the LSI

- R is currently being utilized within the United States to "guide se ntencing decisions, placement in corr ectional programs, institutional assignments, and release f r o m institutional custody. " Christopher T. Lowenka mp & Edward J. Latessa , Ph.D. , Validating the Level of Service Inventory Revised in Ohio's Community Based Correctional Facilities at 5, http://w ww.uc.edu/CCJR/Reports/ProjectReports/OHIOCBCFLSI

- R.pdf ( last visited June 9 , 2010 ) . Once completed, the LSI

- R produces a summary risk score that is intended to predict an offender's likelihood of recidivism and to provide information useful in determinin g his rehab ilitative needs. Judicial Center Br. at 4

. The LSI

- R has been used throughout Indiana by its community corrections agencies and its pro bation departments to assess an offender ' s risks and dete r mine what services should be provided. Id

. The S ASSI scoring model "is a brief self

report, easily administered psychological screening measure " that includes items " to identify some individuals with alcohol and other drug problems who are unwilling or unable to acknow ledge" substance abuse warning sign s or symp toms. National Institute on Alcohol Abuse and A lcoholism, Assess ing Alcohol Problems: A G uide for Clinicians and Researchers 591, a vailable
at http://pubs.niaaa.nih.gov/publications/Assesing%20Alcohol/InstrumentPDFs/66_SASSI.pdf (last visited Jun e 9 , 2010).8

Current scientific research provides strong support for the proposition that, in contrast to penal incarceration for higher risk offenders, "low

- risk offenders should be excluded, as a gene ral rule, from resid ential programs." Christopher T

. Lowenkamp & Edward J. Latessa, Increa s ing the Effectivene ss of Correctional Programming T hrough the Risk Principle: Identifying Offen ders for Residential Placement , 4 C RIMINOLOGY & P UB

. P OL'Y 263, 284 (200 5 ) (based on a study of 13, 22 1 offenders); see als o D. A. Andrews et al. , Does Correctional Treatment Work? A Clin ically Relevant and Psychologically Informed Meta

- Analysis , 28 C RIMINOLOGY 3 69 , 370 (1990). "[A] cademic literature has demonstrated for decades [that] objective actuarial risk/needs instr ument s more accurately predict risk and identify criminogenic needs than the clinic al jud g ment of officers." Scott VanBenschoten, Risk/needs Asses s ment: Is This the Best We Can Do? 72 F ED

. P ROBATION 38, 38 (Sept. 2008)

. " [ T ] he primary reason to use a risk/nee ds tool is to help offi cers both identify which offenders need intensive intervention and what type of intervention is required." Id. The use of evidence

- based risk instruments in assessing the suitability of senten cing scheme options is receiving strong encouragement. See, e.g. , Roger K. Warren, Evidence

Based Practi c es and State Sentencing Policy: Ten Policy Initiatives to Reduce Recidivism , 82 I ND . L. J. 1307, 1311 (2007). One of these tools, the LSI, "assigns each offender to a risk categ ory, so that an appropriate case management strategy can be put into place." Bren da Vose et al. , The Empi r ical Status of the Level of Service Inventory , 72 F ED

. P ROBATION 22, 2 3 (Dec. 2008)

. The LSI "is a theoretically and empirically based assessment instrument tha t is designed to e nhance the supervision and effective treatment of offenders." Id

. Other authorities describe risk

asses s ment information as "critical in making a number of important sentencing determinations," i n cluding the following: "[1 ] [ the ] offend er's suitability for diversion from prosecution; [ 2 ] [ the ] most appropriate conditions of probation to be imposed; [3 ] [ the ] offender's amenability to treatment; [ 4 ] [ the ] most appropriate treatment or level of supervision to be imposed; [ 5 ] [ the ] most app ropriate sanction or behavioral control mechanism to be imposed; [ 6 ] [ the ] decision whether to revoke probation; and [ 7 ] [ the ] kind of sanction or additional treatment to be ordered upon a violation." Roger K. W arren , Arming the Courts w ith Research: 10 E vidence

- Based Se ntencing Initiatives to Control Crime and Reduce Costs at 3 ( The Pew Charitable Trusts , May 2009).9

The product description for the LSI

- R provides the following description and exp lan a tion regarding intended use: [I t ] is a quantitative s urvey of offender attributes and their situations relevant to level of supervision and treatment decisions. Designed for ages 16 and older, the LSI

- R helps predict parole outcome, success in correctional halfway houses, institutional misconducts, and reci divism. . . . [ It ] can be used by probation and parole officers and correctional workers in jails, detention facilities, and correctional halfway houses to assist in the all ocation of resources, help make decisions about probation and placement, make appro pr iate security level classifications, and assess trea t ment progress."
LS I

- R: Level of Service Inventory

- Revised , Product Description, http://www.mhs.com/product.aspx?gr=saf&prod=lsi

- r&id=overview (last visited June 9 , 2010)

. As explained in the user's m anual, the LSI

- R "is a way of systematically bringing toget h er risk and needs information important to offender treatment planning and for assigning levels of f re edom and supervision." D.A. Andre w s, Ph.D. & James L. Bont a, Ph.D, The Level of Service I nven tory

- R evised User's Manual at 1 (2001) . Administration of the LSI

- R requires the probation officer or other test administrator to make several objective determinations (e.g., information r egarding criminal history, education, and employment) and to make s ubjective evaluations on several areas of inquiry including performance and interactions at work, family and marital situ ation, accommodations stability and the level of crime in the neighborhood, participation in org anized recreational activities and use of time, nature and extent of social involvement with co mpanions, extent of alcohol or drug problems, emotional/psychological status, and personal att itudes. Many of the questions require the assessment administrator to designate whether the o ffender has "no need for improvement," "some room for improvement," "need for i m provement," or " a very clear and strong need for improv e ment

. " Id. at 26

– 27.

While there may be strong statistical correlation of assessment results and the risk or probability of recid ivism, the admi nistrator's evaluation as to each question may not coincide with that of the trial judge 's evaluation based on the information presented at sentencing. The nature of the LSI

- R is not to function as a basis for finding aggravating circum s tan ces , nor does an LSI

- R score constitute such a circumstance. But LSI

- R scores are highly us e ful and important for trial courts to consider as a broad statistical tool to supplement and inform the judge's evalu ation of information and sentencing formulatio n in individual cases. The LSI

- R manual directs that it is not " to be used as a substitute for sound judgment that utilizes various sources of info r-10

mation." Id. at 3. Significantly, the manual explicitly declares: "This instrument is not a co mprehensive survey of mitigating and aggravating factors relevant to criminal san c tioning and was never designed to assist in establishing the just p e nalty." Id.

The SASSI is a screening tool used to help " identify individuals [ with ] a high probability of having a substance dependence disorder. " Franklin G. Miller & Linda E. Lazowski, The SA SSI Manual 2 (2d ed., The SASSI Institute 1999). The SASSI instrument score s provide inform ation regarding the "severity of substance depe n dence, substance abuse, a cknowle d ged substance misuse, the possible need for supervised detoxific a tion, level of acknowledgement, emotional pain, risk of criminal behavior , and focus on others rather tha n self." Id

. at 3. The SASSI Inst itute describes t he information provided by the scores as providing "clinical inform a tion that can be of value in identifying treatment issues and in developing effective treatment plans. " Id

. at 13. But the SASSI is not designed to diagnosis a substance abuse disorder. It only seeks to ide ntify persons with a high probability for substance dependence

. Id

. at 2. The SASSI has been analyzed across various demographics (e.g. education level, employment status, gender, age, ethnicity, marital status ). The SASSI Manual at 3 9

– 50. The analysis show s that in all but one category 6 the SASSI is above 90% accurate despite variations in demographic variables or ind ividual mental functioning. Id

. a t 50.

It is clear that neither the LSI

- R nor the SASSI are intended nor recommended to subst itute for the judicial function of determining the length of sentence appropriate for each offender

. But such evidence

- based assessment instruments can be significant sources of valuable inform ation for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative trea tment facilities or programs, and other such corollary sentencing matters. The scores do not in themselves constitute an aggravating or mit igating circumstance because neither the data sele ction and evaluations upon which a probation officer or other adm inistrator's assessment is made

6 Validity testing of the accuracy of SASSIs conducted in treatment settings has a significant di ff erence across various treatment settings ranging from 85.3% to 98.2% accurate. The results show that the SASSI is highly accurate, averaging 95.2% accuracy, in treatment settings dealing with addictions, general psychiatric disorders, dual diagnosis setti ngs, and vocational rehabilitation settings. But the SASSI accuracy is 85.3% accurate in treatment settings where the individual is receiving trea t ment as a sex offender. The SASSI Manual at 34, Table 11.11

nor the resulting scores are necessarily congruent with a sentencing judge's findings and concl usion regardin g relevant sentencing factors. Having been determined to be statistically valid, rel iable, and effective in forecasting recidivism, the assessment tool scores may, and if possible should, be considered to supplement and enhance a judge's evaluation, weigh ing, and application of the other sentencing evidence in the formulation of an individualized sentencing program a ppropr i ate for each defendant.

But t he legitimacy of sentencing consideration of evidence

- based assessment results has been questioned by the Court of Appeals, not only in the present case but also in Rhodes , which the defendant cites to support his opposition to using the LSI

- R test at sentencing . In Rhodes , the Court of Appeals affirmed the trial court's sentence but opined that the "use of a standardized scoring model, such as the LSI

- R, undercuts the trial court's responsibil i ty to craft an appropriate, individualized sentence" and that "it is an abuse of discretion to rely on scoring models to dete rmine a sentence." 896 N.E.2d at 1195. W e disagree. As noted above, there is a growing body of impressive research supporting the widespread use and efficacy of evidence

- based offender assessment tools. The results of such testing can enhance a trial judge's individualized evalu ation of the se ntencing evidence and selection of the program of penal consequences most appr opriate for the reformation of a particular offender. The fact that numerical results from such tools may reflect factors that are separately shown by other evidence at sentenci ng does not di squalify the test results as duplicative . Sentencing considerations are often shown by the prese ntation of multiple, separate items of evidence or are repeated in the probation department's pre

sentence r e port, but this doesn't render them o bjectionable as duplicative. W e defer to the sound discernment and discretion of trial judges to give the tools proper consideration and a p propriate weight. We disapprove of the resistance to LSI

- R test results expressed by the Court of Appeals in Rhodes

.

The defendant and some of the amici question the admissibility of assessment tool results at sentencing on grounds of alleged lack of scientific reliability under Indiana Evidence Rule 702. The Indiana Rules of Evidence, except with respect to priv ileges , do not apply in trial court sentencing proceedings. Ind. Evid. R. 101(c)(2); Dumas v. State , 803 N.E.2d 1113, 1120

– 2 1 (Ind. 2004); Thacker v. State , 709 N.E.2d 3, 9 (Ind. 1999); Jackson v. State , 697 N.E.2d 53, 5512

(Ind. 1998). As noted by Judge M iller, however, "[t]his provision does not affect the a c cused's due process rights not to be sentenced on the basis of unreliable information." Robert Lowell Miller, Jr., 12 Indiana Practice Series, Indiana Evidence § 101.304, 11

– 12 ( citing State v. Bar kd ull , 708 N.E.2d 58, 59 (Ind. Ct. App. 1999) , trans. not sought ). We explained in Dumas that sentencing proceedings are exempted from the rules of evidence "to provide the trial judge with the widest range of relevant information in reaching an informed de cision. We presume the trial judge is aware of and knows the law, and considers only evidence properly b e fore the judge in reaching a decision." 803 N.E.2d at 1121. See also Yates v. State , 429 N.E.2d 992, 993

– 9 4 (Ind. Ct. App. 1982) , trans. not sought ("A trial judge may consider almost any relevant inform ation in determining what sentence to invoke"). Given the extensive supporting research and o ngoing evaluation as discussed above, we believe that assessment tools such as the LSI

- R and the SASSI are sufficiently reliable to warrant consideration of their resulting scores and/or narr a tive
assessments with the other relevant information presented to a trial court for purposes of senten cing. Such assessment instruments enable a sentencing judge to more effectively evaluate and weigh several express statutory sentencing consideration s such as criminal history, the lik e lihood of affirmative response to probation or short term imprisonment, and the character and attitudes indica t ing that a defendant "is unl ikely to commit another crime." Ind. Code § 35

- 38

- 1

- 7.1(a)(2) , (b)(6)

– (8)

. Furthermore, even apart from these statutory criteria, which " do not limit the ma t ters that the court may consider in determining the sentence , " Ind. Code § 35

- 38

- 1

- 7

. 1 (c) , the of fen der' s scores and/or narrative assessment results may be considered by a trial judge in reaching an informed senten c ing decision

.
Urging the exclusion of the LSI

- R on grounds that it is discriminatory , the defendant a rgues that a person's family dishar mony, economic status, personal preferences, or social circum stances "should never bear any weight with a sentencing judge." Appellant's Supp. Pet. to Tran sfer at 10. C onsiderations such as these, however, are already required by statute to be presented for judicial consideration in every pre
- sentence investigation report. Ind i ana Code § 35

- 38

- 1

- 9(b)(2) mandates that pre
- sentence investigation report s include "the convicted person's hist o ry of delinquency or criminality, social history, employment histor y, family situation, economic status, education, and personal habits." Furthermore, supporting research convincingly shows that offender risk assessment instruments, which are substantially based on such personal and13

sociological data, are effective in pr edicting the risk of recidivism and the amenability to rehab ilitative treatment. See D.A. Andrews et al

. , Does Correctional Treatme n t Work? A Clinically Relevant and Psychologically Info r med Meta

-

Analysis , 28 C RIMINOLOGY 3 69 (1990); Christ opher T. Lowen ka mp & Edward J. Latessa, Increasing the Effectiveness of Correctional Pr ogramming Through the Risk Principle: Identifying Offenders for Residential Placement , 4 C R IMINOLOGY & P UB . P OL'Y 263 (2005) ; Christopher T. Lowenkamp , Ph.D. & Kristin Bechtel , M.S. , Th e Predi c tive Validity of the LSI

- R on a Sample of Offenders Drawn f rom the Records of the Iowa Department of Corrections Data Management System , 71 F ED . P ROB A TION 25 ( Dec. 2007); Brenda Vose et al. , The Empirical Status of the Level o f Service Inventory , 7 2 F ED . P R OBATION 22 ( Dec. 2008) ; but see James Austin, Ph.D. et al. , Reliability and Validity Study of the LSI

- R Risk Assessment Instrument , Final Report submitted to the Pennsylvania Board of Prob ation and Parole ( Institute on C rime, Justice and Correctio ns at George Washington University , Jan. 9, 2003). Because of such established materiality, we discern no impropriety in LSI

- R

scores being considered as a supplemental source of information to assist a trial court in form ulating the manner a s entence is to be served.

The defendant also argues that the use of the test results may impinge upon one's right to counsel because the scoring sheets used in the admin istration of the assessment are not pr o vided to defense counsel prior to the sentencing hearing. A defe n dant is entitled to a copy of the pre
sentence report prior to his sentence being imposed. Ind. Code § 35

- 38

- 1

- 12(a)(2). Thus the d efendant will be aware of any test results reported therein and may seek to diminish the weight to be given such te st results by present ing contrary evidence or by challeng ing the administration or usefulness of the assessment in a particular case

. S uch assessment results may also serve as a basis for a defendant to seek a suspended sentence or other favorable sentenc ing cond i tions. A s noted above , we find that the LSI

- R and SASSI assessment tools and other similar instr u ments employed by probation departments have been sufficiently scrutinized to satisfy the reli a bility requirement for consideration by trial courts i n sentencing procee d ings.

We also reject t he defendant 's claim that the use of such assessment instruments is inco nsistent with Article 1, Section 18 of the Indiana Constitution , which emphasizes the foundational importance of reformation as a goal of our penal code

. We find the opposite. Such instruments14

endeavor to provide us able information based on extensive penal and s o ciological research to assist the trial judge in crafting individual ize d sentencing schemes with a maximum potential for

r e formation

.

We hold that the results of LSI

- R and SASSI offender assessment instruments are appr opriate supplemental tools for judicia l consideration at sentencing. T hese evaluations and their

scores are not intended to serve as aggravating or mitigating circum s t ances nor to determine the gross length of sentence, but a trial court may employ such results in formulating the manner in which a sentence is to be served

.

Conclusion

The results of an LSI

- R or SASSI assessment are not in the nature of, nor do they pr o vide evidence constituting , an aggravating or mitigating circumstance. In conside r ing and weighing aggravating and mitigating circumstances shown by other evidence, however, trial courts are e ncouraged to employ evi dence

- based offender assessment instrume nts , including , where appropr iate , the LSI

- R or SASSI, as supplemental considerations in craft ing a p enal pr o gram tailored to each individual defendant. Neither the LSI

- R nor SASSI results were used by the trial judge as

an aggravating circumstance in thi s case , and t he trial court did not err in cons i dering the LSI

- R and SASSI test results in formulating the defendant's program of penal cons e quences. Judgment

a f firmed.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.A TTORNEYS FOR A MICI C URIAE

I NDIANAPOLIS B AR A SSOCIATION , C RIMINAL J USTICE AND A PPELLATE P RACTICE S E C TIONS
Joel M. Schumm IU School of Law

- Indianapolis Indianapolis, Indiana Bryan H. Babb Bose McKinney & Evans LLP Indianapolis, Indiana
James J. Bell Bingham McHale, LLP Indianapolis, Indiana
Fred R. Biesecker Ice Miller LLP Indianapolis, Indiana
Carol A. Nemeth Price Waicukauski & Riley LLC Indianapolis, Indiana Geoffrey G. Slaughter Taft Stettinius & Hollister LLP Indianapolis, Indiana

I NDIANA P UBLIC D EFENDER C O UNCIL Larry Landis, Executive Director Indiana Public Defender Council Indianapolis, Indiana I NDIANA P ROSECUTING A TTORNEYS C OUNCIL Richard J. Hertel, Chairman Indiana Prosecuting Attorneys Council Versailles, Indiana Stephen J. Johnson, Executive Dir ector Indiana Prosecuting Attorneys Council Indianapolis, Indiana

I NDIANA J UDICIAL C ENTER Jane A. Seigel Jennifer A. Bauer Michelle C. Goodman Indiana Judicial Center Indianapolis, Indiana

P UBLIC D EFENDER OF I NDIANA Susan K. Carpenter Public Defend er of Indiana
Steven H. Schutte Deputy Public Defender Kathleen Cleary Deputy Public Defender Indianapolis, Indiana