Opinion
23A-CR-2449
06-10-2024
Sean Michael Smith, 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 Attorney General of Indiana J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Huntington Circuit Court The Honorable Davin G. Smith, Judge Trial Court Cause No. 35C01-2308-F5-230
ATTORNEY FOR APPELLANT
Justin R. Wall Wall Legal Services Huntington, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ROBB, SENIOR JUDGE
Statement of the Case
[¶1] Sean Smith was found guilty of battery on a person less than fourteen years of age, a Level 6 felony, and resisting law enforcement, a Class A misdemeanor. The trial court sentenced Smith to an aggregate term of three and one-half years. On appeal, he asks the Court to revise and reduce his sentence. Concluding the trial court did not err, we affirm.
Facts and Procedural History
[¶2] On August 7, 2023, Jessica Gardner arrived home to find many of her neighbors, including Smith, engaged in a verbal altercation in the street. As Gardner observed, she saw six-year-old P.Z. crying and yelling at Smith, the fiance of P.Z.'s mother, Taylor Bonewitz. Gardner approached P.Z., and the pair retreated to Gardner's home. When P.Z. could not recall Bonewitz's phone number, Gardner called 9-1-1.
[¶3] Officer Isaac Brown responded to the scene and spoke to P.Z., who indicated that she and her friend were playing in the street when Smith began to yell at her. P.Z., motioning to her neck, then described how Smith "grabbed her by the neck and picked her up by the neck until her feet were off the floor." Tr. Vol. 3, p. 9. P.Z. also stated that her three-year-old brother, C.B., witnessed the events. Officer Benjamin Spurgeon arrived shortly thereafter and spoke to P.Z., who disclosed the same information she previously relayed to Officer Brown.
[¶4] Both officers approached Smith, who was seated on his front porch, and advised him he was being detained for further investigation. Smith began to act "belligerent" and "hostile" toward the officers. Id. at 45. As the officers attempted to gather Smith from his seated position, Smith "pulled his arms back and sat back down in the seat refusing to be detained." Id. at 46. After multiple attempts, officers were able to successfully detain Smith.
[¶5] The State charged Smith with battery resulting in bodily injury to a person less than fourteen years of age, a Level 5 felony, battery on a person less than fourteen years of age, a Level 6 felony, and resisting law enforcement, a Class A misdemeanor. Following a jury trial, Smith was found guilty of the latter two counts. On the felony count, he was sentenced to a period of two and one-half years with two years executed and 180 days suspended. And on the misdemeanor count, he was sentenced to a period of one year with 185 days executed and 180 days suspended. The trial court ordered the sentences served consecutively. Smith now appeals.
Discussion and Decision
1. Consecutive Sentences
[¶6] First, Smith contends the trial court abused its discretion when it imposed consecutive sentences. Specifically, Smith argues the trial court failed to consider his proffered mitigators and, had it done so, it would have ordered the sentences served concurrently.
Smith notes his crimes represent an "episode of criminal conduct" as defined by Indiana Code section 35-50-1-2(b) (2020). He also states that Section 35-50-1-2(c) applies such that, at sentencing, the trial court can consider aggravating and mitigating circumstances and determine whether the sentences should be served consecutively or concurrently. While this is true, he further states that his sentence is not subject to Section 35-50-1-2(d)(1) because his crimes are not "crime[s] of violence." See Ind. Code § 35-50-1-2(a) (listing crimes of violence). Although he is correct that his sentence is not subject to Subsection (d)(1), he is mistaken as to the reason. Subsection (d)(1) limits the total consecutive terms of imprisonment to four years when the defendant is sentenced on more than one felony conviction arising out of an episode of criminal conduct. Here, Smith was sentenced for only one felony count and his aggregate term totaled three and one-half years. Therefore, the statutory limitations of Subsection (d)(1) do not apply to Smith's sentence.
[¶7] Sentencing decisions lay within the sound discretion of the trial court and will be disturbed only on a showing of abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007). An abuse of discretion occurs when the decision is clearly against the logic and effect of the evidence before the court or the reasonable inferences to be drawn therefrom. Id.
[¶8] At the time of sentencing, the trial court determines "whether terms of imprisonment shall be served concurrently or consecutively" and in doing so may consider both aggravating and mitigating factors. Ind. Code § 35-50-1-2(c). The finding of mitigating factors is not mandatory but is within the discretion of the trial court. Page v. State, 878 N.E.2d 404, 408 (Ind.Ct.App. 2007), trans. denied. Further, the court is not obligated to accept the defendant's arguments as to what constitutes a mitigating factor, and an allegation on appeal that the court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Id.
[¶9] During his sentencing hearing, Smith proffered the following mitigating factors: (1) Smith plays a vital role in the care of P.Z. and C.B.; (2) Smith is of a younger age; and (3) Smith successfully completed community corrections six times in the past. At the conclusion of the proceedings, the trial court unequivocally stated that it did not find any mitigating factors. The trial court did consider the factors and simply chose not to find them as such. Further, on appeal Smith has not established the factors were both significant and clearly supported by the record.
[¶10] Likewise, the decision to impose consecutive sentences lies within the discretion of the trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind.Ct.App. 2014), trans. denied. And in order to impose consecutive sentences, the trial court must find at least one aggravating circumstance. Id. at 870. Here, the trial court explicitly noted three aggravating factors: (1) Smith's criminal history; (2) Smith's position of care, custody, and control over P.Z. and C.B.; and (3) Smith's prior violations of court orders, probation, and pretrial services. Any of these factors alone is sufficient to justify the imposition of consecutive sentences. Thus, the trial court did not abuse its discretion when it imposed consecutive sentences after finding three separate aggravating factors.
2. Inappropriate Sentence
[¶11] Next, Smith contends his aggregate three and one-half-year sentence is inappropriate and asks us to reduce the term. Specifically, Smith argues that the nature of his offenses is not egregious and that his character supports a lesser sentence.
[¶12] Indiana Appellate Rule 7(B) permits the Court to "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 our review, we afford substantial deference to the trial court and determine only if the imposed sentence is inappropriate, not if another sentence would be more appropriate. George v. State, 141 N.E.3d 68, 73 (Ind.Ct.App. 2020), trans. denied. The defendant "bears the burden of demonstrating his sentence is inappropriate." Id. at 73-74.
A. Nature of the Offense
[¶13] Our analysis of the nature of the offense begins with the advisory sentence as set by our legislature. Morris v. State, 114 N.E.3d 531, 538 (Ind.Ct.App. 2018), trans. denied. At the time Smith battered P.Z. and resisted law enforcement, the sentencing range for a Level 6 felony was six months to two and one-half years, with an advisory sentence of one year, and the maximum sentence for a Class A misdemeanor was one year. Ind. Code §§ 35-50-2-7(b) (2019); 35-50-3-2 (1977). The trial court sentenced Smith to an enhanced sentence of two and one-half years on the felony and a sentence of one year on the misdemeanor, for an aggregate three and one-half-year sentence.
[¶14] "The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein." Morris, 114 N.E.3d at 539. Our analysis requires us to examine "the nature, extent, heinousness, and brutality of the offense." Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). "We may also consider whether the offender 'was in a position of trust' with the victim." Id. (quoting Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011)).
[¶15] Smith argues the act of grabbing and lifting P.Z. by her throat is less egregious than the alternative action of striking her. Smith also claims that his resistance to law enforcement was passive and that at no time were any of the officers physically harmed, or any property damaged. We disagree.
[¶16] On the date in question, Smith was caring for six-year-old P.Z. and three-year-old C.B. while their mother was at work. At some point, Smith became angry with P.Z. for playing in the street. In an episode of extreme discipline, Smith "grabbed [P.Z.] by the neck and picked her up by the neck until her feet were off the floor" while C.B. watched. Tr. Vol. 3, p. 9. And when Smith was later approached by law enforcement officers who advised him he was being detained for further investigation, he acted "belligerent" and "hostile" and "pulled his arms back and sat back down in the seat" when they attempted to detain him. Id. at 45-46.
B. Character of the Defendant
[¶17] The defendant's character is illustrated by his life and conduct. Morris, 114 N.E.3d at 539. Smith reflects on his "moderate" criminal history, his mental health issues, his alcohol addiction, his vital role in the care of P.Z. and C.B., and the hardship incarceration would impose upon them and his biological children. Appellant's Br. pp. 18-19.
[¶18] First, even a minor criminal record reflects poorly on a defendant's character. Pritcher, 208 N.E.3d at 668. A review of Smith's lengthy criminal history reveals that it began in 2011 and consists of nine misdemeanor convictions, one felony conviction, and four petitions to revoke probation. Appellant's App. Vol. II, pp. 160-62. Three of his ten convictions are for domestic battery, and for two of those he was required to complete a batterer's intervention program. Yet, Smith has been convicted of another battery offense in this case, which is indicative of his continuing failure to reform his behavior.
[¶19] Second, a defendant's mental health may be a mitigating factor. Corralez v. State, 815 N.E.2d 1023, 1026 (Ind.Ct.App. 2004). "However, in order for a mental history to provide a basis for establishing a mitigating factor, there must be a nexus between the defendant's mental health and the crime in question." Id. There is no indication that Smith's mental health was responsible for his decision-making process at the time of these offenses.
[¶20] Third, a defendant's history of substance abuse may be a mitigating factor. Hape v. State, 903 N.E.2d 977, 1002 (Ind.Ct.App. 2009), trans. denied. However, "when a defendant is aware of a substance abuse problem but has not taken appropriate steps to treat it, the trial court does not abuse its discretion by rejecting the addiction as a mitigating circumstance." Id. Although Smith participated in a substance abuse treatment program in 2012, the officers smelled the odor of alcohol emanating from Smith when he was detained for these offenses. Smith acknowledges his alcohol abuse, yet he has not taken additional appropriate steps to treat it in the eleven years that elapsed between his participation in the substance abuse program in 2012 and these offenses in 2023.
[¶21] Finally, "a trial court is not required to find that a defendant's incarceration would result in undue hardship on [his] dependents." Benefield v. State, 904 N.E.2d 239, 247 (Ind.Ct.App. 2009), trans. denied. Smith has two biological children from a previous marriage for whom he is ordered to pay $100 per week in child support. However, he indicated that has not paid child support recently and estimated that his arrearage exceeds $10,000. And Smith has no obligation to P.Z. and C.B., as they are the children of his fiancee and not his legal dependents.
[¶22] We cannot say that Smith has shown that his battery of P.Z. and his resisting were accompanied by restraint, regard, or lack of brutality, or that his character reveals "substantial virtuous traits or persistent examples of good character" such that the requested reduction of his sentence is warranted. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, Smith has not shown that his sentence is inappropriate in light of the nature of the offenses and his character.
Conclusion
[¶23] The trial court did not err in failing to find Smith's proffered mitigating factors and it properly identified at least one aggravating factor to warrant consecutive sentences. Furthermore, the nature of Smith's offenses is egregious, and his character does not support a lesser sentence. Thus, the trial court did not abuse its discretion in ordering Smith's sentences served consecutively, nor in sentencing Smith to an aggregate term of three and one-half years.
[¶24] Affirmed.
Vaidik, J., and Brown, J., concur.