Opinion
24A-CR-1202
10-22-2024
Brian R. Sosbe, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Jane Anne Noblitt Columbus, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Robert M. Yoke 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 No. 03D02-2305-F5-2152
Attorney for Appellant Jane Anne Noblitt Columbus, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE
Statement of the Case
[¶1] Brian Sosbe ("Sosbe") appeals the sentence imposed after he pleaded guilty to Level 5 felony operating a vehicle after forfeiture of his license for life and Level 6 felony auto theft. He argues that his six-year aggregate sentence is inappropriate in light of the nature of the offenses and his character. Concluding that Sosbe's sentence is not inappropriate, we affirm the trial court's judgment.
[¶2] We affirm.
Issue
Whether Sosbe's sentence is inappropriate.
Facts
[¶3] Thirty-eight-year-old Sosbe stole a pick-up truck ("the truck") in the early evening hours on May 1, 2023. The owner of the truck contacted law enforcement officers, who saw Sosbe driving the truck. When an officer attempted to initiate a traffic stop, Sosbe led the officer on a high-speed chase at speeds exceeding 100 miles per hour. Law enforcement officers eventually used a tire deflation device to stop the truck. After the truck had stopped, law enforcement officers arrested Sosbe. Officers searched the truck and found four syringes, cocaine, and methamphetamine in the truck's driver's seat.
[¶4] On May 3, 2023, the State charged Sosbe with: (1) Level 5 felony operating a motor vehicle after forfeiture of his license for life; (2) Level 6 felony resisting law enforcement; (3) Level 6 felony auto theft; (4) Level 6 felony possession of cocaine; (5) Level 6 felony possession of methamphetamine; and (6) unlawful possession of a syringe. In February 2024, Sosbe entered into a plea agreement with the State. Pursuant to the terms of the plea agreement, Sosbe pleaded guilty to Level 5 felony operating a motor vehicle after forfeiture of his license for life and Level 6 felony auto theft. In exchange for Sosbe's guilty pleas, the State dismissed the four remaining felony charges and agreed not to file an habitual offender enhancement. The trial court accepted Sosbe's guilty pleas and held a sentencing hearing in May 2024.
[¶5] At the sentencing hearing, the trial court reviewed Sosbe's presentence investigation report ("the PSI"), which revealed that Sosbe has a criminal history that spans more than twenty-five years and includes juvenile delinquency adjudications as well as multiple felony and misdemeanor convictions. Specifically, Sosbe has prior felony convictions for possession of a controlled substance, receiving stolen auto parts, receiving stolen property, theft, obstruction of justice, and operating a motor vehicle after forfeiture of his license for life. Sosbe also has two prior felony convictions for burglary and two prior felony convictions for operating a vehicle as an habitual traffic violator. Further, Sosbe has prior misdemeanor convictions for domestic battery and driving while suspended. He also has three prior misdemeanor convictions for operating a motor vehicle without ever receiving a license. Sosbe committed the offenses that resulted in these convictions in five different Indiana counties.
[¶6] The PSI also revealed that, at the time of his arrest in this case, Sosbe had charges pending in two different counties for Level 5 felony operating a motor vehicle after forfeiture of his license for life and Class B misdemeanor leaving the scene of an accident. In addition, the PSI revealed that Sosbe had failed to complete probation in his previous cases and had also previously been court-ordered to participate in a substance abuse evaluation and to follow the evaluator's recommendations.
At the sentencing hearing, Sosbe claimed that these pending charges in two different counties stemmed from the same event.
[¶7] Also, at the sentencing hearing, Columbus Police Department Officer Tyler Boswell ("Officer Boswell") testified about the high-speed chase, which had reached speeds of over 100 miles per hour. According to Officer Boswell, the chase had occurred during the early evening hours, which was the "busiest time in the city." (Tr. Vol. 2 at 46).
[¶8] Further, at the sentencing hearing, Sosbe apologized to the owner of the truck that he had stolen because the "truck tires got popped[.]" (Tr. Vol. 2 at 18). Sosbe also tendered to the trial court a certificate revealing that he had completed, while incarcerated at the county jail for the offenses in this case, an "[eight-]week Turning Point Class intended to change his behavior[.]" (Tr. Vol. 2 at 63). Sosbe further told the trial court that he had recently been accepted at Oxford House, a sober living facility. In addition, Sosbe's mother testified that although he could not live at her house, she would be available to help him with transportation.
[¶9] Thereafter, the trial court found the following aggravating factors: (1) Sosbe had a criminal history that spanned more than twenty-five years; (2) Sosbe's disturbing pattern of committing crimes of conversion, theft, burglary and receiving stolen property demonstrated that he had no regard for the personal property of others; (3) Sosbe had previously failed to complete probation; (4) Sosbe's multiple stints in the Department of Correction had not changed his behavior as demonstrated by his return to committing crimes upon his release; (5) Sosbe had committed a jail rule violation, specifically committing battery upon another person, while incarcerated in the county jail for these offenses; and (6) the danger Sosbe posed to the community when committing the offenses in this case was significant and greater than the elements necessary to prove the commission of the offenses.
[¶10] In addition, the trial court found Sosbe's guilty plea to be a mitigating factor. However, because Sosbe had "received a deal for pleading guilty[,]" the trial court found his guilty plea to be a slight mitigator. (App. Vol. 2 at 50). In addition, the trial court noted that in an attempt to mitigate his sentence, Sosbe had tendered to the trial court a certificate revealing that he had attended an eight-week class intended to change his behavior. The trial court further noted that Sosbe had completed this class months before he had committed the jail rule violation, which would indicate that Sosbe's behavior had not changed. The trial court rejected Sosbe's completion of this class as a mitigating factor and found that his jail rule violation was "another reason why any [suspended] sentence is not appropriate." (App. Vol. 2 at 50).
[¶11] Thereafter, the trial court imposed a six (6) year sentence for Sosbe's Level 5 felony conviction and a two and one-half (2 1/2) year sentence for Sosbe's Level 6 felony conviction. In addition, the trial court ordered the two sentences to run concurrently with each other for an aggregate sentence of six (6) years.
[¶12] Sosbe now appeals his sentence.
Decision
[¶13] Sosbe argues that his aggregate sentence of six years is inappropriate. He "seeks remand with instructions to the trial court to grant him time served or issue a shorter executed sentence, followed by a suspended sentence with a probation/Community Corrections' placement[.]" (Sosbe's Br. 15).
[¶14] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a "rare and exceptional case." Skeens v. State, 191 N.E.3d 916, 923 (Ind.Ct.App. 2022) (cleaned up).
[¶15] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, Sosbe pleaded guilty to a Level 5 felony and a Level 6 felony. The sentencing range for a Level 5 felony is between one (1) and six (6) years, and the advisory sentence is three (3) years. I.C. § 35-50-2-6(b). Further, the sentencing range for a Level 6 felony is between six (6) months and two and one-half (21/2 ) years, and the advisory sentence is one (1) year. I.C. § 35-50-2-7(b). Here, the trial court imposed a six (6) year sentence for Sosbe's Level 5 felony conviction and a two and one-half (21/2 ) year sentence for Sosbe's Level 6 felony conviction. In addition, the trial court ordered the two sentences to run concurrently with each other for an aggregate sentence of six (6) years.
[¶16] Regarding the nature of the offenses, we note that Sosbe stole a truck and, at the busiest time of the day, led an officer on a high-speed chase that exceeded speeds of 100 miles per hour. Law enforcement officers were only able to stop Sosbe by using a tire deflation device. After arresting Sosbe and searching the truck, officers found syringes, cocaine, and methamphetamine in the truck's passenger seat.
[¶17] Regarding Sosbe's character, we note that Sosbe has an extensive criminal history that spans more than twenty-five years and includes juvenile delinquency adjudications as well as multiple felony and misdemeanor convictions that he committed in several different counties. Further, at the time of Sosbe's arrest in this case, he had charges pending in two different counties for Level 5 felony operating a motor vehicle after forfeiture of his license for life, the same offense to which he pleaded guilty in this case. Sosbe's former contacts with the law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind.Ct.App. 2009), trans. denied.
[¶18] Based on the nature of the offenses and his character, Sosbe has failed to persuade this Court that his six-year aggregate sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Sosbe's sentence.
Although Sosbe raised the single issue of whether his sentence is inappropriate, he appears to conflate two separate sentencing standards: whether the trial court abused its discretion in identifying mitigating and aggravating factors and whether his sentence is inappropriate pursuant to Ind. Appellate Rule 7. "As our [Indiana] Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately." King v. State, 894 N.E.2d 265, 267 (Ind.Ct.App. 2008). Accordingly, "an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant." Id. To the extent Sosbe argues that the trial court abused its discretion by failing to consider his remorse as a mitigating factor, we conclude that any error would have been harmless. When the trial court abuses its discretion in sentencing, we will remand if we cannot say with confidence that the trial court would have imposed the same sentence. Webb v. State, 941 N.E.2d 1082, 1090 (Ind.Ct.App. 2011), trans. denied. Here, the trial court found multiple aggravating factors, including Sosbe's more than twenty-five-year multi-county criminal history. Because of the presence of these significant aggravating factors, we conclude that the trial court would have imposed the same sentence even if it would have found Sosbe's remorse to be a mitigating factor. See Scott v. State, 840 N.E.2d 376, 384 (Ind.Ct.App. 2006) (holding that although the trial court erred in failing to find the defendant's mental illness to be a mitigating factor, the error was harmless in light of multiple valid aggravating factors), trans. denied.
[¶19] Affirmed.
Weissmann, J., and Felix, J., concur.