I N T H E



# Indiana Supreme Court

Supreme Court Case No. 31S00

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## Kevin Andrew Schuler Appellant (Defendant),



### – v
– 

## State of Indiana Appellee (Plaintiff).

Decided: October 18, 2019 Appeal from the Harrison Superior Court, No. 31D01

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- 508 The Honorable Vicki L. Carmichael, Special Judge

On Direct Appeal

Per Curiam Opinion All Justices concur.Indiana Suprem e Court | Ca se No. 31S00

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### 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 an d 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 in to the home that Asenath Arnold share d 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 s wung 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 aIndiana Suprem e Court | Ca se No. 31S00

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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 a ffirmed 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 r evised o rder 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 o f discretion occurs if, among other things, t he reasons given by the sentencing court ar e 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

. I ndiana’s statute requires only one listed aggravating circumstance for imposition of an LWOP sentence. See I nd. C ode § 35

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- 9(a). But in determining whether to impose LWOP, the trial court must limit th e 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 th is crime w as not minor,” (3) that “twoIndiana Suprem e Court | Ca se No. 31S00

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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 tha t “ the aggravating factor significantly outweighs the only mitigating factor in this case ,” Schuler’s lack of a significant criminal history. The court’s repeated u se of “aggravating factor ” (singular) indicates it relied on only one aggravating circumstan ce

— the one Schuler acknowledges the court properly considered. And no thing in the revised order show s otherwise.
I n Schuler’s first appeal we rejected his argument that the trial court abused its discretion by considering the risk assessment and treatin g 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 tr ial court did not find a non

- statutory aggravator by noting S chuler’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

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- 9(c)(4) ; accord Wisehart v. State , 693 N.E.2d 23, 60 n.61 (Ind. 1998) (“ [T] he t rial 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 t h at Schuler’s participation was “not minor” wa s 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 t ried 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 forIndiana Suprem e Court | Ca se No. 31S00

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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, t hat the victim was a participant in the defendant’s conduct and “[a]ny other circum stances appropriate for consideration.” I.C. § 35

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- 9(c). The references to “ innocence ” and lack of “ excuse or justification ” simply underscore that the court found no mitigati ng circumstance other than Schuler’s lack of a significant criminal history. Concluding the revised order does not rely on non
- statutory aggravating circumstance s to impose LWOP , we affirm.



### All Justices concur.

A T T O R N E Y S F O R A P P E L L A N T Brent Westerfeld Indianapolis, Indiana Andrew J. Borland Indianapolis, Indiana

A T T O R N E Y S F O R A P P E L L E E Curtis T. Hill, Jr. Attorney General of Indiana
Andrew A. Kobe Deputy Attorney General Jesse R. Drum Deputy Attorney General Indianapolis, Indiana