
    Donald CULPEPPER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 46A04-9508-CR-326.
    Court of Appeals of Indiana.
    March 21, 1996.
    Rehearing Denied May 17, 1996.
    Transfer Denied July 17, 1996.
    
      William S. Kaminski, Donald W. Pagos, David P. Jones, LaPorte County Public Defender's Office, LaPorte, for appellant.
    Pamela Cartér, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Donald Culpepper (Culpepper) appeals following his conviction for possession of cocaine with intent to deliver, a Class A felony.

We affirm in part and remand for resen-tencing.

ISSUES

Culpepper raises the following issues which we restate as:

1. Whether the trial court erred by denying his request for a competency hearing.
2. Whether the trial court erred by denying his motion to suppress evidence.
3. Whether his sentence of 85 years is manifestly unreasonable.

FACTS AND PROCEDURAL HISTORY

On the morning of October 20, 1994, Michigan City Police Officer Steve Westphal attempted to serve an arrest warrant for drug-related charges on Brentae Aldridge, but Aldridge could not be located. Later that evening, Officer Westphal received information from another arrestee that Aldridge was hiding in a motel on the south side of Michigan City and would be registered under a friend's name. Based on this information, Officer Westphal contacted Officers Chamberlain and Bush and Corporal Kanger and the group began checking the local motels' guest registries. When the police arrived at the Dollar Inn they saw Culpepper's name on the registry for room 206. Knowing that Culpepper and Aldridge were acquaintances, Officers Westphal, Bush and Chamberlain went to room 206 to look for Aldridge. The officers knocked on the door and were allowed into the room by Culpepper. Aldridge was not found in the motel room.

Once inside the room, Officer Westphal noticed two pieces of cellophane wrapping paper with white rocky-type residue on it laying on the desk, along with a plastic cup and a white solid rock wrapped in a piece of the cellophane. Officer Westphal immediately recognized the white rock to be cocaine. Officer Westphal also observed a thick smoke in the room, which he did not recognize as cigarette smoke. Officer Westphal then seized the rock cocaine and escorted Culpep-per into the bathroom and questioned him regarding Aldridge's whereabouts. Ultimately, Culpepper did not provide police with any information regarding Aldridge.

Culpepper was told by the officers to gather his belongings because he was being arrested for possession of cocaine. As Culpep-per was being handcuffed, he turned toward a black bag and coat laying on the bed. Officer Bush then seized the bag and searched its contents. Inside the bag was a plastic bag containing 30 individual pieces of crack cocaine and two knives. A walkie talkie and a beeper were found on Culpepper's person and a crack pipe was found in the motel room.

On October 21, 1994, Culpepper was charged by information with possession of cocaine with intent to deliver as a Class A felony. Prior to trial, he filed a motion to suppress evidence which was denied following a suppression hearing. A jury found Culpepper guilty as charged after a two day trial. He received an enhanced sentence of 35 years. Culpepper now appeals.

DISCUSSION AND DECISION

I. Competency Hearing

Culpepper first contends that the trial court erred by failing to grant his request for a competency hearing. On the first morning of trial, Culpepper's counsel made an oral motion for a competency hearing alleging that Culpepper was unable to understand the proceedings and unable to assist in his defense. In support of the motion, Cul-pepper told the court that he wished to fire his attorneys for various reasons and hire new attorneys. The court denied the request for a competency hearing and denied Culpep-per's request to hire his own attorney.

After repeatedly stating to his counsel that he did not want to proceed with them representing him, Culpepper decided not to participate in his trial and refused to come to the courtroom after the morning recess.. Counsel pleaded with the court that although they did not wish to become a party to Culpep-per's attempts to manipulate the process, they felt that it was impossible to render effective assistance of counsel under the circumstances. After lengthy discussion on the record with counsel, Culpepper and Culpep-per's father, the court decided to proceed with the trial without Culpepper.

If a court has "reasonable grounds" for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court then must immediately stop the proceedings and hold a competency hearing. Collins v. State, 643 N.E.2d 375, 379 (Ind.Ct.App.1994), trans. denied. Whether such reasonable grounds exist is a determination to be made by the trial court and will be reviewed only for an abuse of discretion. Id. (citing Brown v. State, 516 N.E.2d 29 (Ind.1987)). The right to a competency hearing is not absolute and a trial judge's observations of a defendant in court are an adequate basis for determining whether a competency hearing is necessary. Id.

The trial and conviction of one without adequate competence is a denial of federal due process and a denial of a state statutory right as well. Brewer v. State, 646 N.E.2d 1382, 1384 (Ind.1995) (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 LEd.2d 815 (1966), Tinsley v. State, 260 Ind. 577, 298 N.E.2d 429 (1973); I.C. 35-86-3-1 (1993). A hearing to determine whether the accused is competent to stand trial is required where the trial court is confronted with evidence that creates a reasonable or bona fide doubt as to the competence of the accused. Brewer, 646 N.E.2d at 1382. The standard for deciding such competency is whether or not the defendant currently possesses the ability to consult rationally with counsel and factually comprehend the proceedings against him or her. Id. (citing Mato v. State, 429 N.E.2d 945, 946 (Ind.1982)). This test has been stated as requiring that the defendant have sufficient present ability to consult counsel with a reasonable degree of rational understanding and to have a rational as well as factual understanding of the proceedings brought against him or her. Brewer, 646 N.E.2d at 1384 (citing Evans v. State, 261 Ind. 148, 157, 300 N.E.2d 882, 887 (1973)). A trial court's determination to grant or deny a competency hearing will not be lightly disturbed. We will reverse only for an abuse of discretion. Anthony v. State, 540 N.E.2d 602, 606 (Ind.1989), reh'g denied.

From the record before us, we see that Culpepper requested a speedy trial, the trial court called a jury and cleared its calendar all in an effort to accommodate the defendant, and then Culpepper decided that he didn't like his attorneys and somehow wanted to hire his own attorneys. However, the court had found Culpepper to be indigent at the initial hearing and had appointed counsel accordingly. Essentially, Culpepper requested a speedy trial, and then refused to be present at his trial because things did not go his way. We see no evidence tending to establish that Culpepper was unable to assist in his defense; rather, he simply chose not to. Culpepper knowingly and voluntarily waived his right to be present during his trial. Culpepper's behavior does not create a bona fide question as to his competency to stand trial. The trial court did not abuse its discretion in denying Culpepper's request for a competency hearing.

II. Motion to Suppress

Culpepper next contends that the trial court erred in denying his motion to suppress. Prior to trial, Culpepper filed a motion to suppress the contents of the black bag seized from the motel room. Following a suppression hearing, the trial court denied the motion.

The Fourth Amendment to the United States Constitution and Article 1, seetion 11 of the Indiana Constitution protect both privacy and possessory interests by prohibiting unreasonable searches and seizures. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh'g denied; Taylor v. State, 659 N.E.2d 535, 537 (Ind.1995). Generally, a judicially issued search warrant is a condition precedent to a lawful search. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 LEd2d 235 (1979); Fair v. State, 627 N.E.2d 427, 480 (Ind.1993). Searches and seizures conducted outside of the judicial process are per se unreasonable under the Fourth Amendment. The burden of proof is on the State to prove that a warrantless search falls within one of the narrow exceptions to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Fair, 627 N.E.2d at 430.

Before reaching the substantive issues, we make the threshold determination that Culpepper had a personal and legitimate expectation of privacy in his motel room. See Ceroni v. State, 559 N.E.2d 372, 373 (Ind.Ct.App.1990), trans. denied (A person's hotel room is a "home" for Fourth Amendment purposes); Accord Covelli v. State, 579 N.E.2d 466, 471 (Ind.Ct.App.1991), trans. denied.

The State contends that the search of Culpepper's black bag falls within the search incident to a lawful arrest exception to the warrant requirement. Incident to a lawful arrest, the arresting officer may conduct a warrantless search of the arres-tee's person and the area within his or her immediate control. Chimel v. California, 395 U.S. 752, 772, 89 S.Ct. 2034, 2045, 23 L.Ed.2d 685 (1969), reh'g denied; Covelli, 579 N.E.2d at 473. The rationale behind this exception to the warrant requirement was set out in Chimel as follows:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control -construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Ceroni, 559 N.E.2d at 375 (quoting Chimel, 395 U.S. at 762-763, 89 S.Ct. at 2039-2040).

Under the search incident to arrest exeeption, the initial arrest must be lawful. Jones v. State, 467 N.E.2d 1236, 1239 (Ind.Ct.App.1984). Probable cause to search or to arrest is still required even though the circumstances fall within a warrant exception. Jones, 467 N.E.2d at 1239. Probable cause for arrest exists where at the time of arrest the officer has knowledge of facts and circumstances which warrant a man of reasonable caution to believe a suspect has committed the criminal act in question. Jones, 467 N.E.2d at 1239.

An officer may seize incriminating evidence without a warrant when two conditions are met. First, the officer must have otherwise complied with the Fourth Amendment. This means that "not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." Taylor, 659 N.E.2d at 538 (quoting Horton v. California, 496 U.S. 128, 137, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990)). Under the plain view doctrine, not only must the initial intrusion be lawful, but the incriminating nature of the evidence must have been immediately apparent. Taylor, 659 N.E.2d at 538 (citing Horton, 496 U.S. at 136-37, 110 S.Ct. at 2307-08).

The law enforcement officers involved in Culpepper's arrest came to the motel in search of Aldridge, who had an outstanding warrant for his arrest. The officers had information that Aldridge would be at a south side motel and registered under a friend's name. Knowing that Aldridge and Culpepper were acquaintances, when the officers saw Culpepper's name on the motel registration, they were justified in going to the room in search of Aldridge. Culpepper voluntarily let the officers into the room, and Officer Westphal immediately spotted the cocaine and other evidence of illegal activity. Officer Westphal's seizure of the cocaine was justified under the plain view exception to the warrant requirement. Culpepper's arrest was based on probable cause and therefore lawful. See Jones, 467 N.E.2d at 1239 (A warrantless arrest is lawful if the arresting officer has probable cause to believe a felony has been committed).

Having determined that the initial intrusion and arrest were lawful, we next decide whether the search incident to the lawful arrest was proper. Culpepper relies on the Ceroni case, in which we declared a search under similar cireumstances unlawful. 559 N.E.2d 3872. While the search in Ceroni took place in a hotel room and the State sought refuge under the search incident to a lawful arrest exception, the similarity ends there. In Ceroni, the defendants were confined to the middle of the hotel room by several police officers and the contraband was in a drawer at least six to eight feet away from the defendants. In finding that the offered rationale for the search was merely a pretext for conducting a search for narcotics, we said that we would not "accept the State's justification that one of the captives could have lunged six to eight feet, opened the desk drawer, removed the satchel, reached into the satchel, and recovered a weapon or destroyed evidence before being apprehended by the five armed police officers in the room." Ceroni, 559 N.E.2d at 375. Ceroni is factually distinguishable from the case before us.

After Culpepper was advised that he was under arrest and instructed to gather his belongings, he gestured toward the black bag. At the time, the black bag was on the bed and Culpepper was standing approximately one to two feet from the bag. The black bag was within Culpepper's immediate control and the officers had a legitimate interest in protecting themselves and preventing the destruction of evidence. Culpepper's search was conducted incident to his lawful arrest and was proper in seope.

III. Reasonableness of Sentence

As Culpepper's final argument, he contends that his aggregate 35 year sentence is manifestly unreasonable. We first note sua sponte that because Culpepper's crimes were committed on October 20, 1994, he should have been sentenced pursuant to the 1994 version of .C. 35-50-24. The amended version of 1.C. 85-50-2-4 became effective July 1, 1994, and was applicable to crimes committed on or after its effective date. The presumptive sentence for a Class A felony under the 1994 version of 1.C. 35-50-2-4 was 25 years, with not more that 20 years added for aggravating cireumstances and not more that 10 years subtracted for mitigating circumstances.

Immediately prior to imposing sentence, the trial court judge solicited a recommendation regarding sentence length from the State. The prosecutor recommended the "presumptive term plus five years." (R. 584). The court then imposed a sentence of 35 years and made the following comments on the record:

The defendant shall be committed to the custody of the Department of Correction for classification and confinement for a period of Thirty-five years. The reasons for the imposition of the sentence are as follows: Court does find aggravating cireum-stances and finds no mitigating cireum-stances. Mr. Culpepper, I also reviewed your presentence report and your history of eriminal and delinquent activity have shown me that you have not learned anything from being involved in the eriminal justice system; there have been repeated rehabilitative attempts for you, and opportunities for you to turn your life around and you have repeatedly rejected those opportunities. And it appears that if you are going to rehabilitate yourself it's gonna take a great deal of time and effort on your part. And I feel that you are in need of correctional and rehabilitative treatment, and that treatment can only be provided by commitment to a penal facility.

(R. 585). The court's sentencing order provides in relevant part that "[the Court finds the defendant, a male, to be 25 years of age, is guilty of Possession of Cocaine, a Class A felony, and finds aggravating cireumstances, and sentences the defendant to the Department of Correction for classification and confinement for a period of Thirty-five (85) years." (R. 178).

Because neither the court's comments on the record nor the court's sentencing order makes clear which portion of the sentence was the presumptive sentence and which portion was added for aggravation, we can only presume that Culpepper was sentenced under the 1998 version of 1.0. 35-50-24. This is even more clear to us in view of the prosecutor's recommendation just prior to the imposition of sentence. If the trial court intended to follow the prosecutor's recommendation, Culpepper's sentence should be reduced to 30 years. This represents the 25 year presumptive sentence under the 1994 version of I.C. 35-50-2-4, plus an additional 5 years for aggravating circumstances. We therefore remand for the trial court to impose sentence following the proper statute.

Culpepper also argues that because he possessed just slightly over three grams of cocaine, his sentence shocks the conscience and is manifestly unreasonable. He further contends that the court's sentencing order is inadequate in that it fails to articulate the aggravating cireumstances on which it relied and fails to mention mitigating cireumstances such as Culpepper's youthful age and the small quantity of cocaine.

We will not revise a sentence authorized by statute exeept where the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind.Appellate Rule 17(B); Brewer, 646 N.E.2d at 1386. If we determine that such manifest unreasonableness may be present, then we must determine whether no reasonable person could find such sentence appropriate to the particular offense and offender. Brewer, 646 N.E.2d at 1386.

When a trial court imposes the presumptive sentence, we presume that the court considered the appropriate factors; however, when the court imposes an aggravated or mitigated sentence, it must include within the record a statement of its reasons for selecting such a sentence. Widener v. State, 659 N.E.2d 529, 533 (Ind.1995). The trial court's statement of reasons must include the following three elements:

(1) it must identify all of the significant mitigating and aggravating circumstances, (2) it must state the specific reason why each cireumstance is considered to be mitigating or aggravating, and (8) it must articulate that the court evaluated and balanced the mitigating cireumstances against the aggravating circumstances to determine if the mitigating cireumstances offset the aggravating cireumstances.

Widener, 659 N.E.2d at 533 (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986), reh'g denied ) (emphasis in original).

The court justified its enhancement of Culpepper's sentence with the following statutory aggravating cireumstances: (1) Culpepper's history of criminal and delinquent activity; and (2) his need for correctional or rehabilitative treatment that can best be provided by commitment to a penal facility. See I.C. 385-88-1-7.1(b)(2)(8) (1995 Supp.). A sentencing court must justify its enhancement of a presumptive sentence with more than a mere list of aggravating cireum-stances. Gregory v. State, 644 N.E.2d 543, 545 (Ind.1994), reh'g denied. The court must also explain the logic and reasoning behind its sentence. Id. Here, the court noted that the repeated rehabilitative attempts for Cul-pepper were unsuccessful and that Culpep-per would need to spend "a great deal of time and effort" in order to rehabilitate himself, We conclude that the court adequately articulated the aggravating cireumstances upon which it relied in enhancing Culpep-per's sentence.

Culpepper also argues that the trial court erred by failing to find mitigating cir-eumstances. Trial courts are under no obligation to find the existence of a mitigating factor, nor are they under an obligation to assign any particular weight to mitigating factors which they do find exist. Hardebeck, 656 N.E.2d at 493; see also Wingett v. State, 640 N.E.2d 372, 373 (Ind.1994) ("[the finding of mitigating factors is not mandatory and rests within the discretion of the trial court.") We find no error.

Considering the trial court's findings on aggravating circumstances and that the court found no mitigating cireumstances, we cannot say that Culpepper's sentence is manifestly unreasonable. The trial court adequately set forth the aggravating cireumstances upon which it relied, and because the trial court is in the best position to determine these factors, we will not override its decision.

CONCLUSION

The trial court did not err in denying Culpepper's motion for a competency hearing nor did it err in denying his motion to suppress the evidence seized incident to his lawful arrest. Furthermore, the trial court sufficiently articulated the aggravating circumstances upon which it relied, and Culpep-per's sentence is not manifestly unreasonable. However, because it appears that the trial court sentenced Culpepper under the 1998 version of 1.C. 85-50-24, we remand for resentencing under the proper statute.

We affirm in part and remand for resen-tencing.

DARDEN and KIRSCH, JJ., concur. 
      
      . IND.CODE 35-48-4-1 (1995 Supp.).
     
      
      . LC. 35-36-3-1(a) provides as follows:
      If at any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two (2) or three (3) competent, disinterested psychiatrists, psychologists endorsed by the Indiana state board of examiners in psychology as health service providers in psychology, or physicians, at least one (1) of whom must be a psychiatrist, who shall examine ... whether the defendant can understand the proceedings and assist in the preparation of the defendant's defense.
     
      
      . Prior to the 1994 amendment, the presumptive sentence for Class A felonies was 30 years. LC. 35-50-2-4 (1993). In 1995, the legislature again amended L.C. 35-50-2-4 to return the presumptive sentence for Class A felonies to 30 years. 1.C. 35-50-2-4 (1995 Supp.).
     