Opinion
24A-CR-1416
12-27-2024
Ryan K. Horath, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Justin R. Wall Huntington, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Warren Circuit Court Trial Court Cause No. 86C01-2306-F5-73 The Honorable Robert M. Hall, Senior Judge
ATTORNEY FOR APPELLANT Justin R. Wall Huntington, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] Ryan K. Horath pled guilty to Level 5 felony failure to register as a sex or violent offender and admitted he was a habitual offender. The trial court sentenced Horath to four years for his conviction and enhanced such by six years for his status as a habitual offender, for a total sentence of ten years imprisonment. On appeal, Horath presents two arguments challenging the sentence imposed.
1. Did the trial court abuse its discretion by failing to find certain mitigating circumstances?
2. Is Horath's sentence inappropriate in light of the nature of the offense and his character?
[¶2] We affirm and remand with instructions.
Facts & Procedural History
[¶3] Because Horath previously has been convicted of sexual misconduct with a minor, he is required to register as a sex offender in the county where he is living. Initially, Horath was living with his father in Fountain County and registered as a sex offender there. However, between October 23, 2022, and June 5, 2023, Horath lived in Warren County but failed to register as a sex offender in that county.
[¶4] On June 8, 2023, the State charged Horath with failure to register as a sex or violent offender as a Level 5 felony. See Ind. Code § 11-8-8-17(b)(1). On that same date, the State also filed a habitual offender enhancement. Horath pled guilty as charged and admitted to being a habitual offender without the benefit of a plea agreement. On June 13, 2024, the trial court sentenced Horath to four years on his Level 5 felony conviction enhanced by six years for being a habitual offender, for a total sentence of ten years. Horath appeals, challenging the sentence imposed.
There is a discrepancy between the oral sentencing statement and the written sentencing order. At the sentencing hearing, the trial court stated that it was "going to go ahead with . . . what was recommended by the probation office" and then sentenced Horath in accordance with that recommendation, setting forth the sentence as four years on the underlying conviction, enhanced by six years for the habitual offender. Transcript Vol. 2 at 61. The written sentencing order, however, shows imposition of a six-year sentence on the underlying conviction, enhanced by four years. Considering the oral and written statements together, we find the court's oral sentencing statement to be the best expression of its intent regarding the sentence imposed. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (directing that courts are to examine the oral sentencing statement alongside the written sentencing statement to assess the conclusions of the court and may credit the statement that accurately pronounces the sentence). Although the aggregate sentence is the same under both sentencing combinations, we nevertheless remand to the trial court to correct its written sentencing order to make it consistent with its oral sentencing statement.
Discussion & Decision
1. Abuse of Discretion
[¶5] In general, sentencing decisions are left to the sound discretion of the trial court, and we review the trial court's decision only for an abuse of discretion. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the 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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A trial court may abuse its discretion by: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.
[¶6] The trial court considered Horath's plea "without an agreement" to be a mitigating circumstance and identified two aggravating circumstances, namely, his criminal history and his behavior while incarcerated. Transcript Vol. 2 at 61. On appeal, Horath argues that the trial court abused its discretion in failing to consider his employment history, completion of classes while incarcerated, and care of his newborn child as mitigating. Where a defendant alleges that a trial court has failed to find a particular mitigating circumstance, it is the defendant's burden to establish that the mitigating evidence is both significant and clearly supported by the record. Davis v. State, 971 N.E.2d 719, 724 (Ind.Ct.App. 2012), trans. denied.
[¶7] As to his employment history, Horath directed the trial court to the presentence investigation report (PSI), in which he admitted that he was not employed at the time of his arrest but reported he was employed "mostly" for the past ten years, working for various tree-cutting services. Appellant's Appendix Vol. II at 42. Horath, however, could not identify any of his past employers and did not provide any other evidence related to his claimed employment. On this record, Horath cannot establish that the trial court abused its discretion by not identifying his employment history as a significant mitigating circumstance. See Stout v. State, 834 N.E.2d 707, 711 (Ind.Ct.App. 2005) (finding employment history was not entitled to mitigating weight where defendant failed to present any evidence of "a specific work history, performance reviews, or attendance records").
[¶8] As to his completion of classes while in jail, we note that other than submitting certificates of completion to the trial court, Horath did not explain why such is entitled to mitigating weight. Moreover, the PSI informed the trial court of his less-than-stellar behavior while on probation or incarcerated. Horath violated terms of community corrections and probation numerous times, and he was written up for disciplinary reasons, such as possession of contraband, passing contraband, and assault/attempting to assault another individual while in jail. Horath's behavior while incarcerated overshadows his completion of two classes. We cannot say the trial court abused its discretion in not affording such mitigating weight.
[¶9] Finally, Horath contends the trial court overlooked the fact that he has a baby that he helps to take care of. While Horath has a one-year-old child, there is nothing in the record that supports his claim that he is a necessary caregiver or involved in the child's life. The only information we glean from the record is that Horath did not want this child to be raised by the child's mother's family. We cannot say that the trial court abused its discretion in not finding his care of his child to be a mitigating factor. See Ind. Code § 35-38-1-7.1(b)(10) (providing that hardship to dependents is only mitigating when hardship is undue).
2. Inappropriate Sentence
[¶10] Horath contends his sentence is inappropriate in light of the nature of his offense and his character. Our standard of review for inappropriate sentence claims is well-settled:
Indiana Appellate Rule 7(B) gives us the authority to revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating [a] sentence [is] inappropriate.George v. State, 141 N.E.3d 68, 73-74 (Ind.Ct.App. 2020), trans. denied.
[¶11] When considering the nature of the offense, we first look to the advisory sentence for the crime. McHenry v. State, 152 N.E.3d 41, 46 (Ind.Ct.App. 2020). A Level 5 felony is punishable by a term of imprisonment between one and six years, with the advisory sentence being three years. Ind. Code § 35-502-6. For a person convicted of a Level 5 felony, their status as a habitual offender subjects them to an enhanced term of between three and six years. Ind. Code § 35-50-2-8(i)(2). Therefore, Horath faced a sentence in the range of four to twelve years. The trial court sentenced him to ten years-one year more than the advisory for his underlying conviction enhanced by the maximum of six years for being a habitual offender.
[¶12] As to the nature of the offense, we note that Horath's conduct is what was contemplated by the statute making it a crime for a convicted sex offender to fail to register in the county where the offender resides. We note, however, that Horath has three additional convictions for failure to register, only one of which was needed to elevate the underlying crime in this case to a Level 5 felony. See Ind. Code § 11-8-8-17(b). On these facts, the nature of the offense does not render his sentence inappropriate.
[¶13] When assessing a defendant's character, we engage in a broad consideration of his qualities. Madden, 162 N.E.3d at 564. A defendant's character is shown by his life and conduct. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind.Ct.App. 2020). As the trial court noted, Horath has a significant criminal history that began with a juvenile adjudication for theft, which if committed by an adult, would have been a felony. In addition to the three felonies supporting his status as a habitual offender, Horath has accumulated four additional felony convictions and five misdemeanor convictions. He has been incarcerated multiple times and placed on community corrections and probation, violating both. And, while incarcerated, Horath has violated the rules by possessing tobacco, passing contraband, and assaulting/attempting to assault another inmate. In addition, we note that despite claiming to have maintained steady employment, Horath has amassed thousands of dollars in back child support. Horath's actions speak louder than his words. He presented no evidence of substantial virtuous traits or persistent examples of good character that warrant a revision of his sentence. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (holding that a trial court's discretion in sentencing matters will not be second-guessed absent sufficiently compelling evidence of substantial virtuous traits or persistent examples of good character).
[¶14] In short, Horath has failed to demonstrate that his ten-year sentence is inappropriate.
[¶15] Judgment affirmed and remanded for correction of written sentencing judgment.
Vaidik, J. and Crone, Sr.J., concur.