Opinion
No. 48A04-1010-CR-622
08-03-2011
MICHAEL E. HURST, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : CHRISTOPHER A. CAGE Anderson, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
CHRISTOPHER A. CAGE
Anderson, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-0706-FC-135
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN , Judge
STATEMENT OF THE CASE
Michael E. Hurst appeals the three-year sentence imposed after he pled guilty to criminal recklessness, a class D felony.
We affirm.
ISSUES
1. Whether the trial court abused its discretion in sentencing Hurst.
2. Whether the three-year sentence imposed by the trial court is inappropriate.
3. Whether the sentence is constitutionally proportional.
FACTS
On June 2, 2007, James, Jacquelyn, and Tina Pitzer were stopped at an intersection in the right-hand lane on a Madison County road. Hurst, in his vehicle, approached the Pitzers' vehicle from behind, passed them on the right while driving on the grass and the curb, and struck the Pitzers' vehicle. Hurst ran the red light, rounded the corner, hesitated, and then "took off like lightning." (Tr. 23). James, who was driving the Pitzers' vehicle, followed Hurst to obtain his insurance information.
Hurst eventually stopped his vehicle, and James, Tina, and Hurst exited their vehicles. James attempted to obtain Hurst's insurance information while Hurst shouted obscenities at him. Hurst re-entered his vehicle, started the engine, and put the vehicle in gear. Tina was standing in front of Hurst's vehicle, and he drove forward, striking her and knocking her off balance. Tina landed on the hood of Hurst's vehicle and hung on as Hurst drove approximately seventy-five feet. Tina received injuries to her shoulder.
The State charged Hurst with battery by means of a deadly weapon, a class C felony, and failure to stop after an accident resulting in damage to an attended vehicle, a class C misdemeanor. Hurst subsequently entered into an open plea of criminal recklessness, a class D felony.
The trial court accepted the guilty plea and conducted a sentencing hearing. At the end of the sentencing hearing the trial court made the following oral statement:
The aggravation would be the defendant's criminal history, most of which are vehicular and then he had a pending Alexandria City Court case at the time. The mitigation is that he plead [sic] guilty to the offense saving the State the time and cost of trial. The aggravations outweighs [sic] the mitigation. The crime is particularly outrageous and basically heinous and the defendant was fortunate to get the case reduced from a C felony to a D felony so based upon all this the Court sentences him to prison for three (3) years.(Tr. 43-44).
The trial court subsequently entered a written sentencing order, which reads in pertinent part:
The Court having entered Judgment of Conviction against the defendant following the guilty plea in Count I, Criminal Recklessness, [a] Class D felony, considers the pre-sentence investigation report, the arguments and evidence of counsel, and now finds the following aggravating circumstances to exist: Defendant's prior criminal history; defendant was on probation at the time this crime was committed; prior attempts at rehabilitation have failed; defendant is in need of correctional rehabilitative treatment that can best be provided by his commitment to a penal facility. Therefore, the Court finds sufficient aggravating circumstances to enhance the sentences herein. The Court now sentences the defendant as follows: On Count I, to the custody of the Indiana Department of Correction for a period of 3 years, all of which shall be executed.(App. 32).
Hurst now appeals the three-year sentence, which is the maximum for a class D felony.
A person who commits a class D felony shall be imprisoned for a fixed term of between six months and three years, with the advisory sentence being one and one-half years. I.C. § 35-50-2-7(a).
DECISION
1. Abuse of Discretion
Hurst argues that certain conclusions made by the trial court constitute an abuse of discretion. Although Hurst does not classify these conclusions as an issue separate from whether the sentence is inappropriate, we examine the sentencing record to ascertain whether an abuse of discretion has occurred.
When evaluating sentencing challenges under the advisory sentencing scheme, we first confirm that the trial court issued the required sentencing statement, which includes a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehearing, 875 N.E.2d 218 (Ind. 2007). If the recitation includes a finding of mitigating or aggravating circumstances, the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating. Id.
So long as the sentence is within the statutory range, it is subject to review only for abuse of discretion. Id. 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. Id. One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Id. Another way is to enter a sentencing statement that explains reasons for imposing a sentence, including mitigating and aggravating circumstances, which are not supported by the record. Id. at 490-91. A court may also abuse its discretion by citing reasons that are contrary to law. Id. at 491.
Here, the trial court's oral statement at the sentencing hearing contains aggravators that are not present in the written sentencing order. When oral and written sentencing statements differ in content in non-capital cases, we "examine both the written and oral sentencing statements to discern the findings of the trial court." McEIroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). We have the option of "crediting the statement that accurately pronounces the sentence or remanding for resentencing." Id.
Hurst contends that the trial court abused its discretion in considering the circumstances of the offense and benefits of the plea as aggravating circumstances. Specifically, Hurst refers to the trial court's comment at the sentencing hearing that "[t]he crime is particularly outrageous and basically heinous and the defendant was fortunate to get the case reduced from a C felony to a D felony so based upon all this the Court sentences him to prison for three (3) years." (Tr. 43-44).
With reference to the circumstances of the offense, we note that although elements of an offense cannot be used to enhance a sentence, "the trial court may properly consider the particularized circumstances of the factual elements as aggravating factors." McElroy, 865 N.E.2d at 589-90. However, to enhance a sentence in this manner, the trial court then "must detail why the defendant deserves an enhanced sentence under the particular circumstances." Id. at 590 (citing Vasquez v. State, 762 N.E.2d 92, 98 (Ind. 2001)). Here, the trial court neglected to show why the crime was "particularly outrageous and basically heinous." Thus, we cannot ascertain the specific facts upon which the trial court based its finding.
Having said this, we note that criminal recklessness, as a class D felony, occurs when a person recklessly, knowingly or intentionally inflicts serious bodily injury on another person. I.C. § 35-42-2-2(d)(1). The injury inflicted in the current case resulted from (1) Hurst's dangerous attempt to pass the Pitzers' vehicle on the right while he was driving on the grass and the curb; (2) Hurst's striking of the Pitzers' vehicle, causing them to have to obtain insurance information from him; (3) Hurst's failure to provide the insurance information; and (4) Hurst's decision to start his vehicle and drive toward Tina, causing injury as she was knocked off balance and as she hung onto the vehicle's hood while Hurst continued to drive. These circumstances, had the details been listed in the oral sentencing statement, were sufficiently particularized to constitute aggravating circumstances.
With reference to consideration of the benefits of the plea, we note that a trial court cannot accept a guilty plea, then "punish the defendant at sentencing for the State's perceived leniency in striking the deal in the first place." See Nybo v. State, 799 N.E.2d 1146, 1152 (Ind. Ct. App. 2003). Here, to the extent that the trial court's oblique statement can be interpreted as punishing Hurst for any perceived leniency, it is improper. However, the perceived impropriety of the statement is offset by the trial court's finding that Hurst's willingness to plead guilty was a mitigating circumstance.
The principal aggravating circumstance—Hurst's criminal history—is noted by the trial court in both its oral and written statements. This criminal history consists of more than twenty-five instances of illegal activity involving the improper use of a vehicle. Although most of the criminal history consists of infractions and/or misdemeanors, the number of the acts and the nexus between these acts and the acts involved in the current conviction combine to convince us that the trial court would have imposed the same sentence based upon this aggravating circumstance alone.
The dispositions of some of the charges are unknown, mainly due to the age of the charges.
2. Inappropriate Sentence
Hurst contends that his three year sentence should be revised as inappropriate. The revision of a sentence is authorized by Indiana Appellate Rule 7(B), which provides that 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." In determining the appropriateness of a sentence, a court of review may consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497 (Ind. Ct. App. 2009). The "nature of the offense" portion of the appropriateness review begins with the advisory sentence. AngIemyer, 868 N.E.2d at 491; Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The "character of the offender" portion of the sentence review refers to general sentencing considerations and the relevant aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind. Ct. App. 2007), trans. denied. A defendant bears the burden of persuading us that his sentence is inappropriate. Id.
With reference to the nature of the offense, we note that Hurst hit the Pitzers' vehicle as he attempted a dangerous pass and then refused to give the Pitzers his insurance information. In addition, after arguing with the Pitzers and returning to his vehicle, Hurst saw where Tina was standing, chose to start his vehicle, drove toward Tina, hit her with his vehicle and then continued driving as she hung onto the hood. Given the length of the encounter and potential for serious injury to the victim, we conclude that the nature of the offense exceeds the circumstances contemplated by the advisory sentence.
With reference to Hurst's character, we note that he has a lengthy history of vehicle-related violations. In addition, even though he pled guilty, he refuses to take responsibility for and places the blame upon Tina for her physical injuries, arguing that she put herself in harm's way. However, she was in harm's way only because of Hurst's actions. We cannot assume that Hurst's guilty plea, which afforded him substantial benefits, was an expression of remorse. Furthermore, there is no indication of a nexus between Hurst's mental illness and the present violation. While Hurst's rehabilitation and job retention are commendable, they are not significant mitigating factors. Lastly, we note that the trial court found that Hurst was on probation at the time the crime was committed, another aggravating factor that reflects adversely upon his character.
In short, neither the nature of the offense nor Hurst's character leads us to the conclusion that his sentence is inappropriate.
3. Proportionality
Hurst contends that his sentence fails to meet the requirement of Article I, Section 16 of the Indiana Constitution, which provides that "[a]ll penalties shall be proportioned to the nature of the offense."
Determining the appropriate sentence for a crime under this constitutional provision is a function properly exercised by the legislature. Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App. 2000), trans. denied. Our review of penal sanctions under the provision is "highly restrained and very deferential." Newkirk v. State, 898 N.E.2d 473, 477 (Ind. Ct. App. 2008), trans. denied. A criminal penalty violates the proportionality clause "only when [it] is not graduated and proportioned to the nature of the offense." Lindsey v. State, 877 N.E.2d 190, 197 (Ind. Ct. App. 2007), trans. denied. Stated differently, a legislatively determined penalty will be deemed unconstitutional by reason of its length only if it is "so severe and entirely out of proportion to the gravity of the offense committed as to shock public sentiment and violate the judgment of reasonable people." Id.
Here, as noted above, Hurst pled guilty to criminal recklessness as a class D felony. A person who commits a class D felony "shall be imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being one and one-half (1½) years." I.C. § 35-50-2-7(a). Hurst makes no argument as to why the legislature's penal sanctions for criminal recklessness render the criminal recklessness statute unconstitutional. Accordingly, he fails to show that that his sentence violates the proportionality clause of the Indiana Constitution.
Affirmed. RILEY, J., and BARNES, J., concur.