Opinion
24A-CR-1123
12-03-2024
Richard Hoke, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Maya L. Stirm Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vigo Superior Court The Honorable Charles D. Johnson, Judge Trial Court Cause No. 84D01-2305-F3-1601
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Maya L. Stirm Certified Legal Intern Indianapolis, Indiana
Judges Mathias and Brown concur.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Richard Hoke pleaded guilty to Level 3 felony resisting law enforcement and admitted he was a habitual offender. The trial court sentenced him to the Indiana Department of Correction ("DOC") for fifteen years for the resisting law enforcement conviction, enhanced by ten years for being a habitual offender. Hoke appeals his sentence, claiming it is inappropriate in light of the nature of his offense and his character. We affirm.
Ind. Code § 35-44.1-3-1(a)(3), (c)(3) (2021).
Facts and Procedural History
[¶2] While responding to an unrelated custody dispute in Terre Haute, a police officer observed a minivan traveling at an "extremely high rate of speed," recklessly passing other cars, and ignoring stop signs. Appellant's App. Vol. 2 at 30. Hoke was later identified as the driver of the minivan. The officer activated his overhead lights and sirens, but Hoke did not pull over. A pursuit ensued, with Hoke's vehicle reaching speeds of ninety miles per hour. The pursuit ended when Hoke ran a red light and struck a vehicle driven by Harold Travioli. Hoke and Travioli were trapped in their respective vehicles, suffered serious injuries, and were transported by LifeLine helicopter to an Indianapolis hospital. Travioli suffered a lacerated liver, lacerated spleen, bruised pancreas, punctured lung, and a torn diaphragm. All of Travioli's ribs were broken, he had multiple fractures in his back, heart damage, and a traumatic brain injury. Both of Hoke's legs were broken and he suffered liver damage.
[¶3] The State charged Hoke with Level 3 felony resisting law enforcement causing catastrophic injury to another, Level 6 felony resisting law enforcement for using a vehicle to commit the offense, and Class C misdemeanor operating a motor vehicle without a driver's license in his possession. The State also alleged Hoke had a prior resisting law enforcement conviction, enhancing the Level 6 felony to a Level 5 felony, and alleged he was a habitual offender.
[¶4] With the State's agreement to dismiss the other charges, Hoke pleaded guilty to Level 3 felony resisting law enforcement and admitted he was a habitual offender because he had at least two prior unrelated felony convictions. Hoke's sentence was left to the discretion of the trial court. The presentence investigation report ("PSI") revealed Hoke has nine prior misdemeanor and nine prior felony convictions, including two prior resisting law enforcement convictions, and has a history of non-compliance with community supervision. He was on probation for a prior conviction of possession of a controlled substance when he committed this offense. And Hoke admitted to being under the influence of methamphetamine, heroin, and marijuana while fleeing police.
[¶5] At the sentencing hearing, Travioli, his wife, and his sister-in-law testified about the extent and impact of Travioli's injuries, which were considerable. Hoke also testified, offering apologies to the trial court, the officers he put in harm's way, and Travioli. He explained the programs he had become involved in while incarcerated and expressed his intention to participate in rehab and get his GED.
[¶6] The State recommended a sentence of twenty-five years. Hoke requested a sentence of sixteen years-six years in the DOC, followed by four years in work release and six years on probation. The trial court made the following statement in sentencing Hoke to twenty-five years:
[The] aggravating factors are number one, the harm, injury is significant and greater than the elements needed to prove the commission of the crime. And aggravator number two, that there is a history of criminal behavior and . . . you have recently violated probation. As far as non-statutory aggravators, the . . . depreciation of the seriousness of the crime. Not only did you change the life of the victim, we're just lucky that there weren't anymore [sic] additional people that may be in here that were going to have to testify[.]
* * *
As far as mitigating factors, the Court finds there is no mitigating factors in this matter. As such, the Court believes an aggravated sentence is appropriate. So I sentence you on Count 1 to fifteen years in the [DOC], with a ten year habitual enhancement, for a total of twenty-five years. All of which is to be executed at the [DOC]. Upon completion of [Purposeful Incarceration], as well as twenty years of your sentence, the Court would entertain a modification of the remaining balance of that time.Tr. Vol. 2 at 61-62; see also Appellant's App. Vol. 2 at 89-90.
[¶7] Hoke appeals his sentence. Additional facts will be provided as necessary.
Hoke's sentence is not inappropriate under Indiana Appellate Rule 7(B).
[¶8] Hoke asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we 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." The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, "we reserve our 7(B) authority for exceptional cases." Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).
[¶9] "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are "separate inquires to ultimately be balanced in determining whether a sentence is inappropriate." Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind.Ct.App. 2016)). "[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id. at 127.
[¶10] The question "is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate "turns on our sense of 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." Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. See Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021).
[¶11] Hoke pleaded guilty to a Level 3 felony and admitted to being a habitual offender. A Level 3 felony is punishable by a sentence from three to sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b) (2014). The court shall sentence a person convicted of a Level 3 felony who is found to be a habitual offender to an additional fixed term between six and twenty years. I.C. § 35-50-2-8(i)(1) (2017). The trial court ordered Hoke to serve an aggregate twenty-five-year sentence. Although enhanced, the sentence was not the maximum.
[¶12] Beginning with the nature of his offense, Hoke admits the nature of his offense is "disturbing" given the severity of Travioli's injuries. Appellant's Br. at 10. But he argues the seriousness of his offense is already reflected by the elevation of the offense from a Level 6 felony to a Level 3 felony due to Travioli's catastrophic injury. We are not persuaded the nature of the offense renders Hoke's sentence inappropriate. A "catastrophic injury" is one that significantly impairs a person's ability to live independently for a period of at least one year. I.C. § 35-31.5-2-34.5 (2019). Travioli suffered life-altering injuries that have permanently impacted the quality of his and his family's lives. Travioli can no longer drive or "do anything with [his] hands like [he] used to"-like brush his teeth or shave-because of tremors; he cannot work, garden, or hunt; he finds travel in the car "very taxing"; and his plans for life with his wife after retirement were "[d]estroyed." Tr. Vol. 2 at 13, 15, 17. Travioli described himself as "basically confined to [his] home now." Id. at 17. So, we cannot say the elevated charge fully encompasses the injury Hoke caused to Travioli.
Moreover, Hoke's actions posed a significant threat to others on the roadway, showing a complete disregard for public safety. See Id. at 26 (Terre Haute Police Department Sergeant Ryan Plasse testifying there is a middle school, a retirement home, two banks, and a shopping center near the intersection where the collision occurred).
[¶13] Hoke's character also does not weigh in favor of revising his sentence. We analyze a defendant's character by considering a wide range of facts, such as criminal history, background, past rehabilitative efforts, and remorse. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021). Hoke points to his expressions of "sincere remorse," his participation in addiction therapy since the collision so "this would not happen again," and his willingness to take responsibility for his actions by pleading guilty without receiving a benefit as evidence demonstrating his good character. Appellant's Br. at 11.
[¶14] First, we note the trial court did not find Hoke's remorse to be a mitigator. We give substantial deference to a trial court's evaluation of a defendant's remorse, as the court hears the defendant's apology and observes his demeanor firsthand. See Hollins v. State, 145 N.E.3d 847, 852 (Ind.Ct.App. 2020), trans. denied. Further, Hoke had more than one opportunity to engage in treatment for his substance use previously and yet, failed to change his behavior. See Hape v. State, 903 N.E.2d 977, 1002 (Ind.Ct.App. 2009) (explaining sentence revision is unwarranted when a defendant is aware of his or her substance use problem but does not take appropriate steps to treat it), trans. denied. Although Hoke did plead guilty in an open plea, the evidence against him was overwhelming. See Morris v. State, 985 N.E.2d 364, 368 (Ind.Ct.App. 2013) (observing a guilty plea may not be worth much consideration if it "is clear the decision to plead guilty was merely a pragmatic one because of the weight of the State's evidence"). And some of Hoke's statements at the sentencing hearing could be interpreted as deflecting and blaming others. See Tr. Vol. 2 at 33 (Hoke testifying, "I wish to God somebody would have took my keys"). As with remorse, the trial court is in the best position to determine if the defendant has truly accepted responsibility for his actions.
[¶15] Finally, Hoke has a lengthy criminal history including nine prior misdemeanor convictions, nine prior felony convictions, and two juvenile adjudications. He has been committed to the DOC three times and has violated probation multiple times. See Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023) (recognizing even a minor criminal history reflects poorly on a defendant's character). Several of Hoke's prior offenses are drug-related, and two of his felony convictions involved resisting law enforcement.
[¶16] In sum, Hoke has not presented compelling evidence to overcome the substantial deference we afford the trial court, and we cannot say Hoke's sentence is inappropriate.
Conclusion
[¶17] Hoke's twenty-five-year sentence is not inappropriate given the nature of his offense and his character.
[¶18] Affirmed.
Mathias, J., and Brown, J., concur.