Opinion
24A-CR-825
08-23-2024
Axel P. Sundling, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Justin R. Wall Wall Legal Services Huntington, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Wabash Circuit Court The Honorable Robert R. McCallen, III, Judge Trial Court Cause No. 85C01-2209-F4-001081
ATTORNEY FOR APPELLANT
Justin R. Wall
Wall Legal Services
Huntington, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] Axel Sundling twice sold fentanyl to a law enforcement informant in a Walmart parking lot. The State charged Sundling with two counts of dealing in a narcotic drug. Sundling repeatedly moved to dismiss the charging information, arguing that the trial court did not have jurisdiction because he is a sovereign citizen. The trial court denied those motions, and after a jury convicted Sundling as charged, the trial court sentenced him to 11 years of incarceration. Sundling now appeals, raising two issues for our review:
1. Whether the trial court erred in denying Sundling's motions to dismiss for lack of jurisdiction; and
2. Whether Sundling's sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] We affirm.
Facts and Procedural History
[¶3] In June and July 2022, law enforcement, via an informant, conducted two controlled purchases of fentanyl from Sundling in a Walmart parking lot in Wabash County, Indiana. In the first transaction, Sundling sold the informant 1.04 grams of fentanyl. Sundling also gave the informant syringes and Narcan, telling him the drugs were "fire" and warning him they were "dangerous," Tr. Vol. II at 158. In the second transaction, Sundling sold the informant 3.02 grams of fentanyl and para-fluorofentanyl. During this second buy, Sundling told the informant that the drugs were of higher quality than the last ones Sundling had sold him and that the informant "needed to be careful because it was very dangerous, that [Sundling] had to Narcan his wife," Tr. Vol. II at 168. Sundling also instructed the informant on how to dilute the drugs so they would not be as dangerous.
Testing also indicated the presence of acetaminophen and diphenhydramine.
Testing also indicated the presence of xylazine.
[¶4] Based on these two controlled buys, the State charged Sundling with two counts of dealing in a narcotic drug as Level 4 felonies. Prior to trial, Sundling made several written and oral motions to dismiss the charging information based on Sundling's belief that the trial court lacked jurisdiction because Sundling claimed to be a sovereign citizen. The trial court denied all of Sundling's jurisdictional challenges. The jury found Sundling guilty as charged. The trial court imposed a total aggregate sentence of 11 years executed at the Indiana Department of Correction ("DOC"). This appeal ensued.
Ind. Code § 35-48-4-1(a)(1), (c)(1).
Discussion and Decision
1. The Trial Court Did Not Abuse Its Discretion by Denying Sundling's Motions to Dismiss for Lack of Jurisdiction
[¶5] Sundling first argues the trial court erred by denying his motions to dismiss the charging information for lack of jurisdiction. We review a "ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances." State v. Katz, 179 N.E.3d 431, 440-41 (Ind. 2022) (quoting Gutenstein v. State, 59 N.E.3d 984, 994 (Ind.Ct.App. 2016), trans. denied). Jurisdiction is a question of law we review de novo. Boyer v. Smith, 42 N.E.3d 505, 508 (Ind. 2015) (citing LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 965 (Ind. 2006)).
[¶6] We have previously explained subject matter and personal jurisdiction as follows:
Indiana trial courts possess two kinds of jurisdiction: subject matter and personal. K.S. v. State, 849 N.E.2d 538, 540 (Ind.2006). Subject-matter jurisdiction is "the power to hear and determine cases of the general class to which any particular proceeding belongs." Id. An Indiana court obtains subjectmatter jurisdiction through the Indiana Constitution or a statute. In re B.C., 9 N.E.3d 745, 751 (Ind.Ct.App. 2014). Personal jurisdiction "requires that appropriate process be effected over the parties." K.S., 849 N.E.2d at 540 (concluding that personal jurisdiction existed because "K.S. was a Marion County resident who submitted himself to the authority of the court.").Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind.Ct.App. 2016).
[¶7] Sundling specifically argues that the trial court had neither subject matter nor personal jurisdiction because Sundling is "a Sovereign National American State of the Union Citizen." Appellant's Br. at 19. Regarding subject matter jurisdiction, the charges against Sundling were filed in Wabash Circuit Court. According to Indiana Code section 33-28-1-2(a)(1), "[a]ll circuit courts have . . . original and concurrent jurisdiction in all . . . criminal cases." See also I.C. §§ 33-33-85-1 to -3 (Wabash County); Wabash County Local Court Rules; Wabash County Criminal Rules, LR85-CR2.2-1(I)(A) ("All cases wherein the most serious charge filed is a Level 1, Level 2, Level 3, Level 4, or Level 5 felony or murder shall be filed in the Wabash Circuit Court."). Accordingly, Wabash Circuit Court had subject matter jurisdiction over the charges the State brought against Sundling. See Taylor-Bey, 53 N.E.3d at 1231.
Although Sundling asserts on appeal that he is "not claiming to be a Moorish American, nor is he claiming to be a 'sovereign citizen,'" Appellant's Br. at 17, it is clear from the record and his briefing that Sundling is, in fact, claiming to be what we generally refer to as a "sovereign citizen." As we noted in Partee v. State, there exists a "loosely-formed group of citizens who believe that they are sovereign individuals, beyond the reach of any criminal court." 184 N.E.3d 1225, 1227 n.2 (Ind.Ct.App. 2022) (citing Lewis v. State, 532 S.W.3d 423, 430-431 (Tex. Ct. App. 2016)).
These so-called "sovereign citizens" share a common vernacular and courtroom strategy. Courts across the country have encountered their particular brand of obstinacy-not consenting to trial, arguing over the proper format and meaning of their names, raising nonsensical challenges to subject matter jurisdiction, making irrelevant references to the Uniform Commercial Code, and referring to themselves as trustees or security interest holders.Hotep-El v. State, 113 N.E.3d 795, 808 (Ind.Ct.App. 2018) (quoting Lewis, 532 S.W.3d at 430-431), trans. denied; see also Taylor-Bey v. State, 53 N.E.3d 1230, 1232 (Ind.Ct.App. 2016) (quoting United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011)) (noting that "sovereign citizen" and similar arguments are baseless and should be "summarily rejected").
[¶8] As for personal jurisdiction, a defendant need not be a United States citizen for a trial court to have personal jurisdiction over him. Taylor-Bey, 53 N.E.3d at 1232 (citing United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011); United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005)). Because Sundling committed the instant offenses in Wabash County, Indiana, Wabash Circuit Court had personal jurisdiction over him in this case. See id. (citing I.C. §§ 35-41-1-1(b)(1), 35-32-2-1). Therefore, the trial court had both subject matter and personal jurisdiction in this case, so it did not abuse its discretion by denying Sundling's motions to dismiss based on lack of jurisdiction.
2. Sundling's Sentence Is Not Inappropriate Under Appellate Rule 7(B)
[¶9] Sundling contends his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019) (citing Ind. Const. art. 7, §§ 4, 6; McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, after due consideration of the trial court's decision, we find that the sentence is "inappropriate in light of the nature of the offense and the character of the offender." Faith, 131 N.E.3d at 159 (quoting App. R. 7(B)).
[¶10] Sentencing is "principally a discretionary function in which the trial court's judgment should receive considerable deference." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). To overcome this deference, the defendant must present "compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)).
Our role is primarily to "leaven the outliers" and identify "guiding principles" for sentencers, rather than to achieve the "perceived 'correct' result" in each case. Cardwell, 895 N.E.2d at 1225. As such, we "focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Ultimately, we rely on our "collective judgment as to the balance" of all the relevant considerations involved, which include "the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Id. at 1224, 1226.Lane, 232 N.E.3d at 122. In conducting this analysis, "we are not limited to the mitigators and aggravators found by the trial court." Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
[¶11] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494). Here, Sundling was convicted of two Level 4 felonies. "A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years." I.C. § 35-50-2-5.5 (emphasis added). For each of Sundling's Level 4 convictions, the trial court sentenced Sundling to 11 years executed at the DOC, with the two sentences to be served concurrently, resulting in a total aggregate sentence of 11 years of incarceration.
[¶12] Where, as here, the trial court deviated from the advisory sentence, one factor we consider 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." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind.Ct.App. 2011)), as amended (May 26, 2023). We also consider whether the offense was "accompanied by restraint, regard, and lack of brutality." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶13] Here, Sundling twice sold fentanyl, and both times he did so, Sundling demonstrated that he knew just how dangerous fentanyl can be by also giving the informant Narcan and warning the informant that Sundling's own wife had overdosed on the very same fentanyl he had just sold to the informant.
[¶14] In considering the character of the offender, "we engage in a broad consideration of a defendant's qualities," T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g), including whether the defendant has "substantial virtuous traits or persistent examples of good character," Stephenson, 29 N.E.3d at 122.
[¶15] Sundling's criminal history began in 1996 when he was a juvenile and has continued throughout his adult life. Sundling has four prior felony convictions, including convictions for domestic battery with bodily injury to a pregnant woman, unlawful possession of a syringe, possession of a narcotic drug, and dealing in a narcotic drug. Sundling has 11 prior misdemeanor convictions, including convictions for conversion, check deception, operating while intoxicated, resisting law enforcement, and battery resulting in bodily injury. Sundling has also had his probation revoked numerous times. Sundling was found in contempt multiple times during the pendency of this cause, and he refused to cooperate with the probation department during his presentence investigation interview. Additionally, Sundling reported during previous presentence investigations that he had a history of abusing alcohol and drugs, including opiates and pain pills.
[¶16] Based on the serious nature of Sundling's offense and his history of criminal or otherwise deviant behavior, we cannot say that Sundling has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), reh'g denied (Aug. 18, 2023).
Conclusion
[¶17] In sum, the trial court did not lack jurisdiction, so it did not abuse its discretion by denying Sundling's motions challenging jurisdiction. The trial court also did not impose an inappropriate sentence pursuant to Appellate Rule 7(B). We therefore affirm the trial court on all issues raised.
[¶18] Affirmed.
Riley, J., and Kenworthy, J., concur.