Opinion
Court of Appeals Case No. 20A-CR-1345
03-24-2021
Garry Allen HICKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorneys for Appellant: Phyllis J. Emerick, Christopher C. Erickson, Bloomington, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: Phyllis J. Emerick, Christopher C. Erickson, Bloomington, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Defendant, Garry Allan Hicks (Hicks), appeals his sentence for reckless homicide, a Level 5 felony, Ind. Code § 35-42-1-5, and unlawful possession of a firearm by a serious violent felon, a Level 4 felony, I.C. § 35-47-4-5(c).
[2] We affirm.
ISSUES
[3] Hicks raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in sentencing him; and
(2) Whether his sentence is inappropriate in light of the nature of the offenses and the character of the offender.
FACTS AND PROCEDURAL HISTORY
[4] On January 24, 2019, at approximately 1:00 a.m., officers with the Monroe County Sheriff's Department were dispatched to a possible shooting at a residence. After securing the scene, the officers attempted to aid a man who appeared to have a gunshot wound to his chest. The man, who was later identified as James Troxal (Troxal), died on the scene. Troxal was found lying on the ground in between the residence and a detached garage, and there was a golf ball sized hole in the door of the garage, which the officer believed was caused by a single shot from a shotgun coming from inside the garage. The officers found Hicks, Sandra Ritter (Ritter), and Connie Richardson (Richardson), inside the main residence. Hicks and Ritter resided together in the residence, and Richardson was a friend, visiting Ritter.
[5] Hicks initially informed the police that for the past two weeks Troxal had been living in his garage and that he paid Troxal for doing various kinds of work around his property. Hicks further told officers that earlier that evening, he was working in the garage with Troxal, and at some point, both he and Troxal returned to the residence. Hicks stated that he, Ritter, and Richardson remained in the residence while Troxal went back to the garage and that, when Troxal reached for the garage door, there was a loud bang and Troxal eventually fell to the ground. Hicks claimed that out of fear, he and Ritter locked the door and called 911. Ritter and Richardson also gave similar initial statements. Hicks claimed that he did not own a gun and there were no weapons on the property.
[6] On the same day, at approximately 8:50 a.m., Richardson contacted Detective Andrew Rushing (Detective Rushing) about a shotgun she found in her car. Based on the discovery of the shotgun, officers re-interviewed Richardson, Ritter and Hicks. During subsequent interviews, both Richardson and Ritter stated that they believed Hicks shot Troxal.
[7] At the beginning of Hicks's second interview, the officers observed Hicks’ calm demeanor, and he did not seem confused or complain of any illness or pain. After being questioned several times regarding Troxal's murder, Hicks eventually admitted to shooting Troxal. Hicks explained that prior to the shooting, he and Troxal were in the garage, and while he was working on his motorcycles, Troxal was splitting wood. Hicks stated that at some point, Troxal exited the detached garage to go retrieve water from the residence, and while Troxal was gone, he heard footsteps outside of the garage and became scared because he thought people, whom he referred to as "they" and "them," were coming to get him. (Transcript Vol. I, p. 170). Hicks continued to state that when he heard someone trying to open the garage door, he fired the shotgun. Hicks claimed that Troxal "wouldn't have been attempting to open the door in that way," and when he realized he had shot Troxal, "he panicked." (State's Exh. Vol. I, p. 27). Despite knowing that he was not legally able to carry a firearm due to prior convictions, Hicks admitted to carrying the shotgun around like "a bag of ... potato chips" for weeks prior to committing the offenses. (Tr. Vol. I, p. 46).
[8] On January 25, 2019, the State filed an Information, charging Hicks with murder and possession of a firearm by a serious violent felon. On March 11, 2019, Hicks filed a notice of insanity defense, and the trial court ordered mental-health evaluations. On December 10, 2019, the Sate filed an amended Information, replacing the murder Count with Level 5 felony reckless homicide. Hicks subsequently withdrew his notice of insanity defense and pleaded guilty to Level 5 felony reckless homicide and Level 4 felony unlawful possession of a firearm by a serious violent felon. The plea agreement left sentencing open to the trial court.
[9] On June 18, 2020, the trial court conducted Hicks’ sentencing hearing. Evidence was presented that when Hicks was booked into the county jail his blood sugar level was very high, he likely suffered from mismanaged diabetes, and that Hicks’ medical records indicated that he suffered from a traumatic brain injury in the 1980. Doctor Polly Westcott (Dr. Westcott), a clinical psychologist, testified that she met with Hicks two times after Hicks was arrested to conduct neuropsychological testing. Dr. Westcott explained that high blood sugar levels which remain unaddressed for long periods of time would have adverse effects, especially for someone who has had a brain injury. Dr. Westcott then went on to explain that Hicks's brain capacity and limitations
were because of the old traumatic brain injury on top of the fact that he had an extensive period of time where his glucose levels were very high[,] and he didn't have insulin ... [w]hich directly effects the brain and can lead to confusion and paranoia and over time actually do brain damage in itself.
(Tr. Vol. I, p. 221). Dr. Westcott opined that with proper diabetic treatment and mental health care, Hicks's hallucinations, delirium, and paranoia would subside. Also, the medical staff at the county jail testified that Hicks refused to have his blood sugar monitored, and that Hicks refused to receive his medicine and insulin.
[10] The trial court also heard testimony about Hicks's criminal history. Hicks had several criminal convictions from Florida, Wyoming, and Indiana, for felony and misdemeanor offenses including burglary with assault or battery, driving under the influence, refusal to accept/sign citation, aggravated assault on a person sixty-five years or older, aggravated assault with a deadly weapon without intent to kill, driving under the influence, false informing, and driving while suspended. Hicks had also violated probation and community-corrections placements on several occasions and had been discharged from supervision unsuccessfully.
[11] At the close of the evidence, the trial court found five aggravating circumstances, namely, Hicks’ criminal history, prior probation violations, the use of a firearm in committing reckless homicide, the fact that he had blamed Troxal for opening the garage door, and the likelihood that Hicks would reoffend. The trial court also found several mitigating factors. The trial court noted that Hicks had led a law-abiding life for the past fourteen years since his last criminal offense. However, the trial court gave this little weight because the evidence showed that Hicks carried a shotgun for two weeks prior to the incident, and possession of that shotgun on each of those occasions was a crime. Second, the trial court recognized that Hicks had suffered a traumatic brain injury in 1980, but it gave this limited weight because the evidence showed that Hicks was able to satisfactorily function in his life for twenty to thirty years after the traumatic brain injury, and that Hicks was informed that the traumatic brain injury might worsen with age. Lastly, the trial court found in mitigation that Hicks had shown remorse, however, the trial court gave little weight to that factor because evidence showed that Hicks had initially lied to the officers about what had happened, and he only showed remorse after he admitted to shooting Troxal.
[12] After finding the aggravating and mitigating circumstances, and prior to sentencing Hicks, the trial court addressed several other mitigating circumstances raised by Hicks and gave reasons why it was not finding those circumstances mitigating. The trial court proceeded to sentence Hicks to six years for reckless homicide and twelve years for possession of a firearm, with three years suspended to probation. The trial court ordered Hicks's sentences to run consecutively for a total of eighteen years.
[13] Hicks now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Sentencing
[14] Hicks claims that the trial court abused its discretion at sentencing because the aggravating factors cited were unsupported by the evidence. He additionally argues that the trial court abused its discretion in imposing consecutive sentences.
[15] Sentencing decisions are matters left to the sound discretion of the trial court. Anglemyer v. State , 868 N.E.2d 482, 490, (Ind. 2007), clarified on reh'g , 875 N.E.2d 218 (Ind. 2007). On appeal, we review a trial court's sentencing order only for an abuse of discretion. Id. It is an abuse of discretion if the trial court's "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.’ " Id. (quoting K.S. v. State , 849 N.E.2d 538, 544 (Ind. 2006) ). Our supreme court has determined that in matters of sentencing, a trial court may abuse its discretion by failing to enter a sentencing statement, entering a finding of aggravating and mitigating factors that are unsupported by the record, omitting reasons that are clearly supported by the record and are advanced for consideration, or by including reasons that are improper as a matter of law. Id. at 490-91. If we find that the trial court has abused its discretion, we will remand for resentencing " ‘if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’ " Sandleben v. State , 22 N.E.3d 782, 796 (Ind. Ct. App. 2014) (quoting Anglemyer , 868 N.E.2d at 491 ), trans. denied.
[16] The trial court found the following aggravating factors: Hicks’ criminal history, prior probation violations, the use of a firearm in committing reckless homicide, the fact that Hicks blamed the victim, and the likelihood that Hicks would reoffend.
[17] Although he acknowledges the existence of his vast criminal history and probation violations, Hicks claims that it was an abuse of the trial court's discretion to consider those factors as aggravating because he had led a law-abiding life for the past fourteen years prior to committing the instant offenses. The record indicates that the trial court acknowledged the remoteness of Hicks's previous criminal convictions yet still found his criminal history to be an aggravating factor. It was within the trial court's discretion to do so. See Buchanan v. State , 767 N.E.2d 967, 972 (Ind. 2002) ("The remoteness of prior criminal history does not preclude the trial court from considering it as an aggravating circumstance.").
[18] As for the trial court's finding that Hicks's use of a firearm in committing reckless homicide was an aggravating factor, Hicks claims that he only possessed the firearm for two weeks prior committing the offense. This claim is unavailing because it was his use of the firearm when committing the reckless homicide offense that made that factor aggravating, and not his possession of the firearm. See Garrett v. State, 714 N.E.2d 618, 623 (Ind. 1999) (holding that a defendant's use of a weapon while committing an offense is a proper aggravating factor for sentencing purposes when the use of a weapon is not an element of the offense). Here, the trial court did not err when considering Hicks's use of the firearm as an aggravating circumstance.
[19] Hicks's attempt to shift blame to Troxal was properly considered by the trial court because it was supported by the record. When Hicks confessed to the crimes, he told the police that Troxal "knew better" than to try to open the door the way he did because Troxal "knew he was afraid and that he had a gun." (Tr. Vol. II, p. 222). Hicks argues that the trial court misinterpreted his statement, and the evidence shows that "Troxal was aware of Hicks’ belief that people were out to get him, so he believed that [ ] Troxal would not have been fiddling with the door." (Appellant's Br. p. 28). While Hicks argues that the trial court misinterpreted his own statement to the police, Hicks's own characterization of his statements suggests that Troxal was to blame since Troxal was shot for the way he opened the door. Here, the trial court properly considered this an aggravating factor which was supported by the record.
[20] Hicks additionally contends that the trial court's determination that he posed a risk to the community based on his likeliness to reoffend was unsupported by the record. The fact that a defendant is considered "a high risk to reoffend" is a valid aggravating factor. Shotts v. State , 53 N.E.3d 526, 538 (Ind. Ct. App. 2016), trans. denied; see also Mateo v. State , 981 N.E.2d 59, 74 (Ind. Ct. App. 2012) (stating the "likelihood that a defendant will commit further offenses once released is a crucial factor in determining whether a sentencing court should be lenient with a defendant and whether to offer him probation, an alternate placement, or a fully executed sentence"). Hicks claims that the trial court determined that he was likely to reoffend based only on a statement of Dr. Westcott, who "indicated that due to the condition of Hicks’ brain, if untreated, an incident such as that which he pled guilty [ ] could happen again." (Appellant's Br. p. 28). Hicks indeed concedes that there was evidence in the record to support this aggravating factor. When asked about Hicks's likelihood of committing another crime or even the same exact crime, Dr. Westcott testified without hesitation that without appropriate medical management of Hicks's health issues, he is at risk to reoffend. Therefore, this aggravating factor was supported by the evidence, and the trial court did not abuse its discretion at sentencing.
[21] To the extent that Hicks argues that the trial court abused its discretion when it imposed consecutive sentences, at the sentencing hearing, the trial court found several aggravating and mitigating factors that were supported by the record. Specifically, the trial court identified five aggravators and three mitigators, and only one aggravating factor is needed to enhance a defendant's sentence. Gross v. State , 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied. A trial court may rely on the same reasons to impose a maximum sentence and impose consecutive sentences. Gilliam v. State , 901 N.E.2d 72, 74 (Ind. Ct. App. 2009). Because the trial court here found multiple valid aggravating factors to support enhancing Hicks’ sentence, the trial court did not abuse its discretion when it imposed enhanced, consecutive sentences.
II. Inappropriate Sentence
[22] We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review "should be to attempt to leaven the outliers and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case." Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). " Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State , 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied. Whether a sentence is inappropriate turns on "the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case." Cardwell , 895 N.E.2d at 1224.
[23] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress , 848 N.E.2d at 1081. For his Level 5 felony reckless homicide offense, Hicks faced a sentencing range of one to six years, with the advisory sentence being three. I.C. § 35-50-2-6. For his Level 4 felony possession of a firearm by a serious violent felon offense, Hicks faced a sentencing range of two to twelve years, with the advisory sentence being six years. I.C. § 35-50-2-.5.5. Hicks was sentenced to six years for reckless homicide and to twelve years for possession of the firearm, with three years suspended to probation. The trial court further ordered the sentences to run consecutively for a total eighteen-year sentence, with three years suspended to probation.
[24] As this court has recognized, the nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation. Perry v. State , 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). "When determining the appropriateness of a sentence that deviates from an advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that ‘makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.’ " Moyer v. State , 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State , 950 N.E.2d 803, 807 (Ind. Ct. App. 2011) ), trans. denied. The record shows that several weeks prior to committing the offenses, Hicks had the shotgun in his possession, and he carried it like a "bag of ... potato chips." (Tr. Vol. I, p. 46). Then despite knowing that Troxal was staying in his garage, Hicks fired a shotgun through the closed door striking and killing Troxal.
[25] When considering the character of the offender, one relevant fact is the defendant's criminal history. Johnson v. State , 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence showed that Hicks has an extensive criminal history and has approximately ten criminal convictions from Florida, Wyoming, and Indiana for felony and misdemeanor offenses including burglary with assault or battery, driving under the influence, refusal to accept/sign citation, aggravated assault on a person sixty-five years or older, false informing, battery, violation of domestic violence injunction, and driving while suspended. Hicks has also violated his probation and community corrections placements on several occasions and has been discharged from supervision unsuccessfully. While it had been fourteen years since he had committed any crime thus making his formal criminal history remote in time, the evidence presented showed that Hicks, as a convicted felon, demonstrated a certain carelessness or nonchalance about violating the law when he carried the shotgun like a bag of potato chips two weeks before committing the instant offenses. In sum, we hold that Hicks's character does not warrant a revised sentence.
[26] Hicks’ arguments do not portray the nature of his crimes and his character in "a positive light," which is his burden to overcome under Appellate Rule 7(B). See Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). Hicks has not shown that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We, therefore, affirm the sentence imposed by the trial court.
CONCLUSION
[27] Based on the foregoing, we conclude that the trial court did not abuse its discretion in sentencing Hicks and Hicks’ sentence is not inappropriate in light of the nature of the offenses and his character.
[28] Affirmed.
[29] Mathias, J. and Crone, J. concur