Robert C. Summers, III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Feb 16 2016, 8:23 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert C. Summers, III, February 16, 2016

Appellant-Defendant, Court of Appeals Case No. 11A05-1509-CR-1617 v. Appeal from the Clay Circuit Court. The Honorable Joseph D. Trout, Judge. State of Indiana, Cause No. 11C01-1508-F5-523 Appellee-Plaintiff.

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 1 of 11  Statement of the Case ^[1] Robert C. Summers III appeals the sentences imposed for his convictions of 1 2 Level 5 felony burglary and Class A misdemeanor theft. We affirm.

Issues ^[2] Summers presents the following issues for our review:

I. Whether the trial court abused its discretion in sentencing Summers; and II. Whether the sentence is inappropriate in light of the nature of the offense and the character of the offender.

Facts and Procedural History ^[3] Early in the morning of August 2, 2015, Summers broke into Mary Girton’s

garage intending to steal a four-wheeler ATV he had observed. Summers

pushed the ATV out of the garage and into the driveway where Girton

confronted him. She telephoned the Clay County Sheriff’s Department

informing dispatch of the situation and giving a description of Summers, who

had abandoned the ATV and was fleeing the premises. Deputy Eric

Oberholtzer responded to the dispatch and observed a male matching

Summers’s description a short distance away from Girton’s home. After

1 Ind. Code § 35-43-2-1 (2013). 2 Ind. Code § 35-43-4-2 (2014).

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 2 of 11  Summers admitted he attempted to steal the ATV, Deputy Oberholtzer

transported Summers to the Clay County jail.

^[4] The State charged Summers with burglary, possession of paraphernalia,

unauthorized entry of a motor vehicle, and theft. At the initial hearing,

Summers, who was acting pro se, was advised of the charges and his rights.

Summers acknowledged that he understood his rights and expressed his desire

to plead guilty. The State indicated that it would not pursue convictions for

possession of paraphernalia and unauthorized entry of a motor vehicle.

^[5] The trial court advised Summers of the rights he would be waiving by pleading

guilty and explained the crimes and possible penalties that could be imposed. A

factual basis was established for Summers’s guilty pleas to burglary and theft,

and the trial court entered judgments of conviction on those counts. The State

formally dismissed the remaining counts. Summers was then remanded to the

Clay County jail pending the preparation of a pre-sentence investigation report.

^[6] Summers appeared pro se at his sentencing hearing, during which the details of

Summers’s pre-sentence report were discussed. Corrections were made to the

report regarding the accurate age of Summers’s child, who was just five weeks

old. Summers did not have regular contact with the child, had not established

paternity of him, and had not been ordered to pay child support. The

investigator found Summers to be a very high risk to reoffend. The emotional

impact of the crimes on Girton were also considered, as was Summers’s lack of

criminal history, and his explanation of his behavior leading up to the crimes.

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 3 of 11 ^[7] The trial court sentenced Summers to the advisory sentence for Level 5 felony

burglary, three years. Ind. Code § 35-50-2-6(b) (2014). He received a

concurrent sentence of one year for his theft conviction. Ind. Code § 35-50-3-2

(1977). Summers now appeals the trial court’s sentencing order.

Discussion and Decision ^[8] Summers appeared pro se at his sentencing hearing. As such, he made no

formal offer of mitigating circumstances. He later obtained counsel who

presented arguments in his favor on his motion to correct error, which the trial

court denied. The issues are presented on that procedural background.

^[9] While sentencing Summers, the trial court found the only mitigating factor was

Summers’s lack of criminal history. The only aggravating circumstance was the

emotional harm to the victim, which was above that necessary to prove the

elements of the crimes. The trial court found the aggravator and mitigator to be

in equipoise and sentenced Summers to the advisory sentence for his burglary

conviction and a concurrent sentence of one year for his theft conviction. Each

of his arguments attack the propriety of the sentence.

I. Abuse of Discretion ^[10] Trial courts are required to enter sentencing statements when imposing a

sentence for a felony conviction. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218. A trial court’s sentencing decisions are

left to the sound discretion of the trial court. Id. “With the exception of our

authority to review sentences under Indiana Appellate Rule 7(B), as long as a

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 4 of 11  defendant’s sentence is within the statutory range, it is reviewed only for an

abuse of discretion.” Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012),

trans. denied. “Circumstances under which a trial court may be found to have

abused its discretion include: (1) failing to enter a sentencing statement; (2)

entering a sentencing statement that includes reasons not supported by the

record; (3) entering a sentencing statement that omits reasons clearly supported

by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law.” Id. But where a trial court has identified

proper aggravating and/or mitigating circumstances, the relative weight

assigned to those properly found circumstances or those which should have

been found is not subject to review for an abuse of discretion. Id.

^[11] Summers argues that the trial court improperly found victim impact as an

aggravating circumstance. Victim impact can be an improper aggravator where

there is nothing in the record to indicate that the impact was different than the

impact generally experienced by victims of the same crime. McElroy v. State,

865 N.E.2d 584, 590 (Ind. 2007).

^[12] The trial court observed that Girton, who had lived in her home for forty-eight

years without fear, possessing a sense of safety in her neighborhood, now

looked around her to ensure she would not find someone in her yard or

buildings. Although most victims of this crime might share Girton’s concern

and fear about finding a stranger on her premises again, the trial court identified

additional components of impact not generally experienced by victims of that

crime. Girton had never feared the dark, but was apprehensive about venturing

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 5 of 11  out at all after dark. She informed the court that Summers had taken her sense

of safety. The trial court characterized the particular impact of the crimes on

Girton as experiencing emotional turmoil above the elements necessary to

establish the offenses. We find no abuse of discretion in finding this aggravator.

^[13] Next, Summers claims that the trial court abused its discretion by failing to find

certain mitigating circumstances. “Although a sentencing court must consider

all evidence of mitigating circumstances offered by the defendant, the finding of

a mitigating factor rests within the trial court’s discretion.” Henderson v. State,

769 N.E.2d 172, 179 (Ind. 2002). “A court does not err in failing to find

mitigation when a mitigation claim is ‘highly disputable in nature, weight, or

significance.’” Smith v. State, 670 N.E.2d 7, 8 (Ind. 1996) (quoting Wilkins v.

State, 500 N.E.2d 747, 749 (Ind. 1986)). “While a failure to find mitigating

circumstances clearly supported by the record may imply that the sentencing

court improperly overlooked them, the court is obligated neither to credit

mitigating circumstances in the same manner as would the defendant, nor to

explain why he or she has chosen not to find mitigating circumstances.”

Henderson, 769 N.E.2d at 179.

^[14] Summers contends that the trial court abused its discretion by failing to

mention or find his guilty plea as a mitigating factor. We have long held that a

defendant who pleads guilty deserves some mitigating weight to be given in

return for the plea. McElroy, 865 N.E.2d at 591. However, a guilty plea does

not automatically amount to a significant mitigating factor. See Sensback v.

State, 720 N.E.2d 1160, 1165 n.4 (Ind. 1999) (plea saved court time, but family

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 6 of 11  contributed detailed letters for pre-sentence investigation report and three

testified at sentencing hearing, thus still traumatized to certain extent in spite of

plea). We have observed that “a guilty plea does not rise to the level of

significant mitigation where the defendant has received a substantial benefit

from the plea or where the evidence against him is such that the decision to

plead guilty is merely a pragmatic one.” Wells v. State, 836 N.E.2d 475, 479

(Ind. Ct. App. 2005), trans. denied.

^[15] We acknowledge the benefit the State received from Summers’s guilty plea at

his initial hearing. However, the evidence against him was overwhelming, so

much so that his decision was more likely a pragmatic one. Summers was

confronted by the homeowner after he had entered her garage early one

morning and attempted to steal her ATV. Summers abandoned that enterprise

when he observed Girton on the telephone with law enforcement. Girton gave

the officers Summers’s description and the direction in which he was

traveling—through her yard and into the woods behind her house.

^[16] Deputy Oberholtzer encountered Summers not far from Girton’s home in the

direction Girton had seen him heading. Summers walked out from the side of a

residential yard onto the road. The officer observed that Summers was

sweating profusely, his shoes and shorts were wet, and he had pieces of grass

stuck to his clothing as if he had walked through tall grass or weeds. Summers

initially denied being involved in the crimes, but ultimately admitted that he

tried to steal Girton’s ATV.

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 7 of 11 ^[17] An inventory of Summers’s backpack revealed a large black knife with a blade

approximately seven inches in length inside a black sheath. The backpack also

contained a small silver pry bar with electrical tape around the handle. A glass

smoking device wrapped inside a white cloth was located in a small inside

pocket. Deputy Oberholtzer also found two sets of keys—one appearing to be

keys to a vehicle, and the other containing approximately twenty keys

containing Honda ATV or motorcycle keys.

^[18] The evidence against Summers was so compelling we find no abuse of

discretion for failing to find his guilty plea to be of significant mitigation.

^[19] Summers also argues the trial court abused its discretion by failing to find

Summers’s remorse as a mitigating factor. A trial court’s determination of

remorse as a mitigating factor is similar to a determination of credibility.

Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). “Without evidence of some

impermissible consideration by the trial court, we will accept its determination

as to remorse.” Johnson v. State, 855 N.E.2d 1014, 1016-17 (Ind. Ct. App.

2006), trans. denied.

^[20] At sentencing, Summers acknowledged his regret about poor decisions he had

made in the past and expressed his desire to turn his life around for his newborn

child. The first reference to remorse for the trauma he caused Girton came in a

letter attached to the pre-sentence investigation report and then later in a letter

to the court. The issue was first raised in Summers’s motion to correct error.

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 8 of 11 ^[21] A trial court is not obligated to accept a defendant’s alleged remorse as a

mitigating circumstance. Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App.

2012). Having observed the defendant, the trial court has the ability to

determine whether a defendant’s remorse is genuine. Id. Accordingly,

substantial deference must be given to the trial court’s evaluation of a

defendant’s remorse. Id. We find no abuse of discretion in the trial court’s

treatment of Summers’s expression of remorse.

^[22] He also claims that the trial court abused its discretion by failing to consider

that his incarceration would result in undue hardship on his newborn child. A

trial court is not required to find that a defendant’s incarceration would result in

undue hardship upon his dependents. Gray v. State, 790 N.E.2d 174, 178 (Ind.

Ct. App. 2003).

^[23] The record reveals that at the time of sentencing Summers’s newborn child was

slightly over eight weeks old. Summers had not yet established paternity and

was not under a court order to support the child. The child lived with his

mother in part because Summers was homeless. We find no abuse of discretion

in the trial court’s decision not to accept this proffered mitigating factor.

II. Inappropriate Sentence ^[24] Summers also claims that his sentence is inappropriate and seeks review under

Indiana Appellate Rule 7(B). Under that review, relief is available if “after due

consideration of the trial court’s decision, the Court finds that the sentence is

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 9 of 11  inappropriate in light of the nature of the offense and the character of the

offender.” Ind. Appellate Rule 7(B).

^[25] The question under Appellate Rule 7(B) review is “not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

2008). “We consider not only the aggravators and mitigators found by the trial

court, but also any other factors appearing in the record.” Johnson v. State, 986

N.E.2d 852, 856 (Ind. Ct. App. 2013). The appellant bears the burden of

demonstrating to us that his sentence is inappropriate. Id.

^[26] “When considering the nature of the offense, the advisory sentence is the

starting point to determine the appropriateness of a sentence.” Id. “One factor

we consider when determining the appropriateness of a deviation from the

advisory sentence is whether there is anything more or less egregious about the

offense committed by the defendant that makes it different from the ‘typical’

offense accounted for by the legislature when it set the advisory sentence.”

Holloway v. State, 950 N.E.2d 803, 806-07 (Ind. Ct. App. 2011).

^[27] When reviewing the sentence with respect to the character of the offender, we

engage in a broad consideration of a defendant’s qualities. Aslinger v. State, 2

N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d

571.

^[28] Here, we find nothing less egregious about the nature of this offense that makes

it different from the type of offense envisioned by the legislature as deserving an

Court of Appeals of Indiana | Memorandum Decision 11A05-1509-CR-1617 | February 16, 2016 Page 10 of 11  advisory sentence. As for the character of the offender, we recognize that

Summers pleaded guilty to the offenses at the earliest opportunity without the

benefit of a plea or the assistance of counsel. However, lacking a criminal

history reduced to conviction, Summers began experimenting with alcohol and

drugs at the age of thirteen, and admitted that he was under the influence of

methamphetamine and marijuana at the time of the offense, an offense he

committed because his feet hurt from walking. Summers’s upbringing was not

idyllic; both parents suffered from substance abuse issues. However, Summers

chose to abuse substances himself, losing several jobs due to his drug abuse, and

in part resulting in his homelessness and lack of job. Summers has not met his

burden of persuading us that his advisory sentence is inappropriate in light of

the nature of the offense and the character of the offender.

Conclusion ^[29] In light of the foregoing, we affirm Summers’s sentence.

^[30] Affirmed.

Robb, J., and Mathias, J., concur.

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