Opinion
24A-CR-1847
12-03-2024
Jayson D. Ackenback, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory E. Long Law Office of Gregory E. Long, LLC Columbus, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Alexandria N. Sons 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Bartholomew Superior Court The Honorable Jonathan L. Rohde, Judge Trial Court Cause Nos. 03D02-2106-F6-3040 03D02-2109-F6-5038 03D02-2205-F6-2474 03D02-2403-CM-1592
ATTORNEY FOR APPELLANT Gregory E. Long Law Office of Gregory E. Long, LLC Columbus, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Alexandria N. Sons Deputy Attorney General Indianapolis, Indiana
Judges Bailey and Foley concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] After pleading guilty to two counts of Level 6 felony invasion of privacy, Level 6 felony possession of methamphetamine, Class A misdemeanor resisting law enforcement, and Class A misdemeanor invasion of privacy, Jayson Ackenback was sentenced to an aggregate nine-and-one-half-year term, with seven and one-half years executed in the Department of Correction ("DOC") and two years suspended to probation. On appeal, Ackenback contends that his sentence is inappropriate. Concluding otherwise, we affirm.
Facts and Procedural History
[¶2] Following alleged acts of domestic violence against his sometime girlfriend, T.R., a protective order was issued that prohibited Ackenback from contacting T.R. Despite being aware of the protective order, Ackenback contacted T.R. three times "via video calls" from the Bartholomew County Jail ("the BCJ") on May 23, 2021, using contact information that Ackenback had indicated was for his niece. Appellant's App. Vol. II p. 51. During the first call, Ackenback instructed T.R. not to show her "God d[**]n face[,]" telling her that "you know it's a f[***]ing misdemeanor every time." Appellant's App. Vol. II p. 51. T.R. and Ackenback were also visible on both the second and third calls. In the third call, Ackenback told T.R. "you better watch your mother f[***]ing attitude" and "I told your mother f[***]ing a[**] you was going to regret this s[**]t[.]" Appellant's App. Vol. II p. 52. On June 7, 2021, the State charged Ackenback with Level 6 felony invasion of privacy under cause number 03D02-2106-F6-3040 ("Cause No. F6-3040").
As it relates to these acts, on May 16, 2021, Ackenback was charged with two counts of Level 6 felony domestic violence and one count of Level 6 felony theft under cause number 03D02-2105-F6-2443 ("Cause No. F6-2443"). Cause No. F6-2443 is not a part of the instant appeal.
This charged was elevated to a Level 6 felony due to Ackenback having a previous conviction for Class A misdemeanor invasion of privacy.
[¶3] On August 27, 2021, while the protective order involving T.R. was still in place, Ackenback made "a voice phone call" from the BCJ to Zachariah Gruber. Appellant's App. Vol. II p. 65. Gruber connected T.R. to the call via a "threeway call." Appellant's App. Vol. II p. 65. T.R. and Ackenback had a conversation, which lasted approximately eighteen minutes. On September 27, 2021, the State charged Ackenback with Level 6 felony invasion of privacy under cause number 03D02-2109-F6-5038 ("Cause No. F6-5038").
[¶4] After Ackenback failed to appear for a pretrial hearing involving both Cause No. F6-3040 and Cause No. F6-5038 on May 4, 2022, a warrant was issued for Ackenback's arrest. Ackenback was arrested at a local Walmart store on May 13, 2022. At the time of his arrest, Ackenback was found to be in possession of a black cloth bag containing methamphetamine and marijuana and "a cut-inhalf blue plastic straw" with visible drug residue inside it. Appellant's App. Vol. II p. 87. On May 17, 2022, the State charged Ackenback with Level 6 felony possession of methamphetamine, Class A misdemeanor resisting law enforcement, Class A misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia under cause number 03D02-2205-F6-2474 ("Cause No. F6-2474").
This pretrial hearing also involved three other criminal cases.
[¶5] On October 27, 2022, Ackenback entered into a plea agreement, by the terms of which he would plead guilty as charged under Cause Nos. F6-3040 and F6-5038. He would also plead guilty to Level 6 felony possession of methamphetamine and Class A misdemeanor resisting law enforcement under Cause No. F6-2474. In exchange for Ackenback's guilty plea, the State agreed (1) to dismiss the remaining charges under Cause No. F6-2474 and the charges brought in cause number 03D02-2106-F6-3069; (2) to forgo filing charges "for phone calls between" T.R. and Ackenback that had been recorded on the BCJ's telephone system between July 27, and August 15, 2022; and (3) to forgo filing a habitual-offender enhancement under Cause No. F6-2474. Appellant's App. Vol. II p. 127. Sentencing was left to the trial court's discretion, but the agreement stated that Ackenback "may be released on his own recognizance to Transformational Living Ministries [("TLM")] pending sentencing." Appellant's App. Vol. II p. 127. The trial court took the plea agreement under advisement and released Ackenback to TLM. A warrant for Ackenback's arrest was subsequently issued in Cause Nos. F6-3040, F6-5038, and F6-2474 and Ackenback was arrested after he had failed to appear for a hearing on May 17, 2023.
[¶6] On February 1, 2024, while Ackenback was being held at the BCJ and while there was a valid protective order involving T.R. in effect, Ackenback instructed Mariel Hautman to contact T.R. on his behalf. After providing Hautman with T.R.'s phone number, Ackenback "told Hautman to have [T.R.] give him a different phone number because 'they' have her ([T.R.'s]) phone number." Appellant's App. Vol. II p. 193. Ackenback also instructed Hautman to tell T.R. "that it was not safe to call from her phone number." Appellant's App. Vol. II p. 193. On March 20, 2024, the State charged Ackenback with Class A misdemeanor invasion of privacy under cause number 03D02-2403-CM-1592 ("Cause No. CM-1592").
[¶7] On July 3, 2024, Ackenback entered into a plea agreement, by the terms of which he agreed to plead guilty as charged in CM-1592. In exchange, the State agreed to dismiss two other pending criminal cases. That same day, the trial court accepted the plea agreement resolving Cause No. CM-1592, as well as the plea agreement resolving Cause Nos. F6-3040, F6-5038, and F6-2474.
[¶8] In sentencing Ackenback, the trial court considered his substantial criminal history, which includes eight prior felony convictions, six prior misdemeanor convictions, numerous allegations of delinquent conduct as a juvenile, and three prior probation revocations. Ackenback, who was forty years old at the time of sentencing, admitted that he had been involved with law enforcement every year of his life since the age of thirteen. The trial court found the following aggravating factors:
1.) [Ackenback] has a significant history of criminal or delinquent behavior. [His] criminal history is too lengthy to detail with each individual case, so the Court will reference and incorporate his criminal history as outlined in the presentence investigation report.
2.) [Ackenback] has previously been on probation, and has failed to complete probation as ordered on multiple occasions, including more restrictive forms of probation including, but not limited to, work release. In addition, [Ackenback] has been sentenced to multiple stints in jail and prison and still has not changed his criminal behavior.
3.) [Ackenback] was previously ordered on multiple occasions to obtain substance[-]abuse evaluations as conditions of his probations, giving him the opportunity for treatment, to which he was not successful as indicated by his continued arrests and convictions for substance abuse violations.
4.) The Court reluctantly accepted the plea agreement on October 27, 2022, which called for his release to a transformation living environment to allow him one last opportunity to complete treatment and choose a crime[-]free lifestyle, and he not only did not complete that treatment, but he was arrested multiple times thereafter, and [pled] guilty to one of those allegations today.
5.) [Ackenback] violated a protective order issued against him.
6.) While the Court is not allowed to consider any of the elements of the crime as an aggravator, the Court does find the pain and suffering to the protected person of the protective order as an aggravator, as [Ackenback] repeatedly violated the
protective order, including violations that were dismissed and/or not charged as a result of his plea agreements.Appellant's App. Vol. II p. 209. The trial court found one "slight" mitigating factor, which was Ackenback's partial completion of a program offered by Turning Point Domestic Violence Services. Appellant's App. Vol. II p. 209.
[¶9] Finding that the aggravating factors outweighed the mitigating factor, the trial court sentenced Ackenback to two-and-one-half years in Cause No. F6-3040, all of which was to be executed in the DOC; two-and-one-half years in Cause No. F6-5038, all of which was to be executed in the DOC and served consecutively to Cause No. F6-3040; two-and-one-half years in the DOC for the Level 6 felony and one year in the county jail, suspended to probation, for the Class A misdemeanor in Cause No. F6-2474, with each count to be served consecutively to each other and to Cause Nos. F6-3040 and 5038; and one year in the county jail, suspended to probation, in Cause No. CM-1592, to be served consecutively to the suspended sentence in F6-2474. In total, the trial court sentenced Ackenback to an aggregate term of nine-and-one-half years, with seven-and-one-half years executed in the DOC and two years suspended to probation.
Discussion and Decision
[¶10] Indiana Appellate Rule 7(B) provides that "[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." In analyzing such claims, we "concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character." Paul v. State, 888 N.E.2d 818, 825 (Ind.Ct.App. 2008) (internal quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.Ct.App. 2008).
[¶11] "A person who commits a Level 6 felony _ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2%) years, with the advisory sentence being one (1) year." Ind Code § 35-50-2-7(b). "A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year[.]" Ind. Code § 35-50-3-2. Again, in sentencing Ackenback, the trial court imposed a two-and-one-half-year term for each of Ackenback's three Level 6 felony convictions and a one-year term, all of which was suspended to probation, for each of his two Class A misdemeanor convictions. The trial court ordered that each of the sentences run consecutively to the others, for an aggregate seven-and-one-half-year executed sentence followed by two years suspended to probation.
[¶12] Ackenback concedes that his actions were "admittedly criminal" but claims that they were "not particularly heinous." Appellant's Br. p. 11. Ackenback appears to suggest that his numerous acts of violating the protective order were not "particularly heinous" because T.R. "wanted to have contact with Ackenback." Appellant's Br. pp. 11, 12. "The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation." Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). As it relates to this case, Ackenback was convicted of multiple acts of invasion of privacy, all of which involved violations of protective orders that had been issued for T.R.'s protection and barred Ackenback from contacting her. Ackenback was also convicted of possession of methamphetamine and resisting law enforcement. Prior to his arrest leading to the possession and resisting charges, Ackenback had been aware of his substance-abuse issue but had failed to seek treatment. He had also attempted to flee when approached by officers at the local Walmart following the issuance of an arrest warrant.
[¶13] As for his character, Ackenback, who was forty years old at the time of sentencing, admitted that he had been involved with law enforcement every year of his life since the age of thirteen, a history that reflects poorly on his character. His criminal history included numerous allegations of delinquent behavior as a juvenile, eight prior felony convictions, six prior misdemeanor convictions, and prior probation violations. As a result of the plea agreements at issue in this case, other criminal charges were dismissed by the State, who had also agreed not to seek a habitual offender enhancement. The Indiana Risk Assessment System tool indicated that Ackenback was a "very high" risk to reoffend. Appellant's App. Vol. II p. 172. Ackenback's criminal history and his being a very high risk to reoffend reflect poorly on his character. See Denham v. State, 142 N.E.3d 514, 517-18 (Ind.Ct.App. 2020) (providing that an individual's history of criminal and delinquent behavior reflects poorly on their character), trans. denied. Further, as for his multiple convictions for invasion of privacy, Ackenback attempted to conceal his communication with T.R. by instructing her not to show her face and to use a different telephone number, demonstrating an attempt at deception, which also reflects poorly on his character. See Satterfield v. State, 33 N.E.3d 344, 355 (noting the defendants attempted acts of concealment when concluding that the defendant had failed to convince the Indiana Supreme Court that his sentence was inappropriate in light of his character). We are unpersuaded by Ackenback's claim that "[s]ociety would be better served if the trial court had suspended more of [his] sentence and placed him in a community corrections program." Appellant's Br. p. 13. Because Ackenback has failed to persuade us that his sentence is inappropriate, we affirm. See Sanchez, 891 N.E.2d at 176.
The dispositions of the cases outlining the numerous allegations of delinquent behavior is unclear from the record.
[¶14] The judgment of the trial court is affirmed.
Bailey, J., and Foley, J., concur.