Opinion
21A-CR-1586
02-11-2022
Michael D. Webb, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Steven E. Ripstra Calvin K. Miller Ripstra Law Office Jasper, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria N. Sons Deputy Attorney General Kelly A. Loy Assistant Section Chief for Criminal Appeals 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.
Appeal from the Dubois Superior Court The Honorable Mark R. McConnell, Judge Trial Court Cause No. 19D01-2011-F6-1000
ATTORNEYS FOR APPELLANT
Steven E. Ripstra
Calvin K. Miller
Ripstra Law Office
Jasper, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Alexandria N. Sons
Deputy Attorney General
Kelly A. Loy
Assistant Section Chief for
Criminal Appeals
Indianapolis, Indiana
MEMORANDUM DECISION
Molter, Judge. 1
[¶1] In November 2020, Michael D. Webb, while intoxicated, harassed and frightened a seventy-two-year-old woman by repeatedly coming onto her property and peeping into the windows of her house. Webb was charged with stalking as a Level 6 felony, voyeurism as a Level 6 felony, and public intoxication as a Class B misdemeanor. The State also alleged he was a habitual offender. He pleaded guilty to all of the charges and admitted that he was a habitual offender, and the trial court sentenced him to an aggregate sentence of five years with the last 180 days of the sentence to be served on home detention. Webb appeals his sentence, arguing that the trial court abused its discretion because it failed to find several mitigating factors and that his sentence is inappropriate in light of the nature of his offense and his character. Finding that the trial court did not abuse its discretion in sentencing Webb and that his sentence is not inappropriate, we affirm.
Facts and Procedural History
[¶2] Around 10:00 p.m. on November 7, 2020, seventy-two-year-old Delores Thorndell called police to report that she could hear two men talking outside the window of her home. When police arrived at her home, Thorndell told them that she had observed a man near the front window of her house. The police could not locate the man, but they found a wet spot near the front window, which was determined to be urine. The police left Thorndell's house without apprehending anyone.
[¶3] At this point, one of the responding officers, Deputy Leinenbach, informed the other officer that he believed the perpetrator could be Webb based on the 2 Deputy Leinenbach's prior interactions with Webb. Deputy Leinenbach also conveyed that, earlier the same night, he was in the same neighborhood as Thorndell's home for a complaint of a bicycle and backpack laying near the person's driveway. The bike was a black and blue Roadmaster, and the backpack contained no identification. However, he did find several Southern Comfort liquor bottles in the backpack, and he knew from prior incidents that Webb frequently drank Southern Comfort.
[¶4] About an hour after the initial dispatch to Thorndell's house, Thorndell called police again to report the man had come back and was again looking into her window. Thorndell reported the man was wearing a dark jacket, blue jeans, and an orange beanie cap, and that "she was frightened by the [man] coming back a second time and that she was unsure if she would be able to sleep." Appellant's Conf. App. Vol. II at 15-16. When the police arrived the second time, they approached Thorndell's house on foot but were again unable to locate the perpetrator. Deputy Leinenbach had seen a man, matching Thorndell's description of the man peeping in her window, walking in the area earlier but could not locate him at that time. Deputy Leinenbach remained in the area and patrolled on foot attempting to locate the perpetrator.
[¶5] Around 12:40 a.m., the police saw a man, who was identified as Webb, approaching Thorndell's residence a third time and detained him. Webb was wearing a black jacket, blue jeans, and an orange beanie. The police asked Webb where his bicycle and backpack were, and he stated that he could not remember. Webb stated that he was trying to locate an old friend's house. He 3 also stated that he was drunk and was nervous about getting arrested, so he stopped in the area where they found him. Webb then stated that he was just trying to go home. The police administered a portable breath test on Webb, which showed a .101 blood alcohol level, and Webb was arrested.
[¶6] The State charged Webb with Level 6 felony stalking, Level 6 felony voyeurism, and Class B misdemeanor public intoxication and also alleged that Webb was a habitual offender. On March 24, 2021, Webb entered into a plea agreement with the State in which he agreed to plead guilty to all three charges and to admit to being a habitual offender. The parties agreed that sentencing would be left to the discretion of the trial court but would be capped at five years in the Indiana Department of Correction with at least a portion of the sentence to be served on home detention.
[¶7] During the sentencing hearing, Webb requested that he be sentenced to work release and testified that he had previously done well on work release. At the time of the sentencing hearing, however, Webb had not worked in about a year. Webb admitted that he had been convicted of ten felonies and fourteen misdemeanors and that past terms of probation or parole had been revoked. The presentence investigation report also showed that Webb was convicted of voyeurism in January 2005, March 2009, June 2015, and May 2018, in addition to the October 2014 and June 2020 convictions Webb admitted to when he pleaded guilty-a total of six prior voyeurism convictions. Webb's criminal history consisted of convictions for numerous drug charges, various sex crimes, an OWI, theft, four counts of public indecency, and several counts of resisting 4 law enforcement. Thornwell wrote a victim impact letter that was read at sentencing, and in which she stated:
Since this has happened, there are evenings that I think I hear someone talking outside and I am frightened. I do not like looking out my windows. I look for you in my yard when I come home after dark, afraid you may be hiding in the shrubbery. I have thought about moving, but that means you have won. Doing this to someone is a very cruel thing to do and I think you need to go to prison so you not do this to someone else.
Tr. at 25.
[¶8] The trial court found Webb's significant criminal history to be an aggravating factor, particularly his prior offenses involving voyeurism. Although Webb argued that his crimes in this case caused no serious harm to the victim, the trial court found that Webb's history of voyeurism and sex offenses would make a reasonable person afraid of him. The trial court also found the fact that the victim was over sixty-five years of age as well as Webb's multiple prior violations of the terms of his probation, parole, and community corrections to be aggravating factors. The trial court found no mitigating factors. Therefore, finding that the aggravating factors outweighed the mitigating factors, the trial court imposed an aggregate sentence of five years with 180 days of that sentence to be served on home detention. Webb now appeals. 5
Discussion and Decision
[¶9] Although Webb frames his argument on appeal as one issue seeking relief under Indiana Appellate Rule 7(B)'s inappropriate analysis, he also claims the trial court abused its discretion when considering mitigating factors. We must separately analyze claims that a sentence is inappropriate under Rule 7(B) and claims that a trial court abused its discretion in considering mitigating factors. Chastain v. State, 144 N.E.3d 732, 734 (Ind.Ct.App. 2020).
I. Mitigating Factors
[¶10] Webb argues that the trial court abused its discretion when it sentenced him because it failed to find several mitigating factors that he asserts were significant and supported by the record. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion will be found where 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 from them. Hudson v. State, 135 N.E.3d 973, 979 (Ind.Ct.App. 2019). A trial court may abuse its discretion in several ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors 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. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). 6
[¶11] Webb contends that the trial court abused its discretion by failing to identify four mitigators: (1) his character and attitude at the time of sentencing indicated that he is unlikely to commit another crime; (2) he neither caused nor threatened serious harm to the victim or her property, nor did he contemplate that his actions would do so; (3) his financial hardship as a result of his imprisonment; and (4) the fact that he pleaded guilty. Appellant's Br. at 11, 13- 14. An allegation that the trial court failed to identify or find a mitigating circumstance requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. Davis v. State, 173 N.E.3d 700, 704 (Ind.Ct.App. 2021) (citing Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000)). The trial court is not obligated to accept the defendant's contentions as to what constitutes a mitigating circumstance. Id.
[¶12] Webb first asserts that the trial court failed to find that his character and attitude at the time of sentencing indicated that he is unlikely to commit another crime was a mitigating factor. At sentencing, Webb made the following statement, "I would like to apologize to-to the lady and say I'm sorry for scaring her. I don't want her-her or anybody else to be scared of me or because of me. I just want to apologize." Tr. at 21. While character and attitude during sentencing which indicates a defendant is unlikely to commit another crime can be a mitigating factor under Indiana Code section 35-38-1-7.1(b)(8), the trial court may determine whether a defendant is genuinely remorseful. Cardwell, 895 N.E.2d at 1226. 7
[¶13] Here, the trial court noted Webb has prior convictions for voyeurism that are only a fraction of his significant criminal history. The presentence investigation noted that Webb claimed he "did not intend to victimize anyone but that he was misunderstood," and that he "appears to minimize his legal involvement in the past as well." Appellant's Conf. App. Vol. II at 75. Although Webb expressed a brief apology at sentencing, when considered along with his repeated acts of voyeurism, lengthy criminal history, and minimization of his criminal actions in the past and in this case, the trial court was free to question the credibility of Webb's remorse and did not abuse its discretion in not considering his remorse as a mitigating factor.
[¶14] Webb next argues the lack of threatened or actual harm to the victim should have been found as a mitigating factor. By definition, none of the crimes for which Webb was convicted are crimes of violence, see Ind. Code §§ 35-45-10-1, 35-45-10-5; Ind. Code § 35-45-4-5(b)(1)(A); Ind. Code § 7.1-5-1-3(a)(4), and the fact that the crimes were nonviolent was apparent from the evidence before the trial court. "Conviction of a crime that does not contain violence as an element is not a circumstance requiring mitigating weight." Sandleben v. State, 29 N.E.3d 126, 136 (Ind.Ct.App. 2015) (citing Banks v. State, 841 N.E.2d 654 (Ind.Ct.App. 2006), trans denied), trans. denied. Therefore, a trial court does not abuse its discretion by failing to consider conviction of a nonviolent crime as a mitigating factor. Sandleben, 29 N.E.3d at 136.
[¶15] Although Webb asserts he did not cause serious harm or intend to cause serious harm to Thornwell or her property, Thornwell's victim-impact letter described 8 being continually frightened in her own home and afraid to come home after dark. Further, the evidence showed that Webb stood outside the victim's window at night, repeatedly peeped inside, and returned several times, waiting until the police had left, all of which can be perceived as threatening. The trial court did not abuse its discretion in declining to find the lack of threatened or actual harm to the victim as a mitigating factor.
[¶16] Webb also argues his financial hardship from incarceration should have been considered as a mitigator. At sentencing, Webb testified that his grandmother passed away in September 2020, two months before he committed the present crimes, and left him a trailer in her will. He explained that, since he had been incarcerated, the pipes in the trailer had frozen and burst, the electricity was disconnected, and Webb's credit cards were sent to collections. But he also testified he could not remember the last time he worked, and it had "probably been about a year." Tr. at 24. Thus, the evidence showed that Webb's financial hardships preceded his incarceration. The trial court did not abuse its discretion in not finding any alleged financial hardship resulting from incarceration to be a mitigating factor.
[¶17] Webb finally argues that his guilty plea should have been considered as a mitigator because it spared taxpayers the expense of a trial and demonstrated responsibility and acceptance of his crimes. Webb is correct that our Supreme Court has held that a guilty plea is considered to be a mitigating circumstance. See Francis v. State, 817 N.E.2d 235, 237-38 (Ind. 2004). However, "a trial court does not necessarily abuse its discretion when it does not announce that it is 9 considering a defendant's guilty plea as a mitigating factor, because the guilty plea may not be due significant mitigating weight." Smith v. State, 908 N.E.2d 1251, 1254 (Ind.Ct.App. 2009). The significance of a guilty plea as a mitigating factor varies from case to case, and a guilty plea may not be significantly mitigating when the defendant receives a substantial benefit in return for the plea. Id. (quotation omitted).
[¶18] Here, Webb pleaded guilty in exchange for the agreement that his sentence would be capped at five years with at least some of that time served on home detention. When sentencing Webb, the trial court observed that without the benefit of a plea agreement, Webb's maximum aggregate sentence for his three crimes and his habitual offender enhancement could have been nearly eleven and one-half years. Webb was only sentenced to four and one-half years in the Department of Correction followed by 180 days of home detention. Therefore, Webb received a benefit in exchange for his guilty plea, and the trial court did not abuse its discretion by not finding Webb's guilty plea as a mitigator.
II. Inappropriate Sentence
[¶19] The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). "That authority is implemented through Appellate Rule 7(B), which permits an appellate court to revise a sentence if, after due consideration of the trial court's decision, the sentence is found to be 10 inappropriate in light of the nature of the offense and the character of the offender." Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019).
[¶20] Our review under Appellate Rule 7(B) focuses on "the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Cardwell, 895 N.E.2d at 1225. Our role is only to "leaven the outliers," which means we exercise our authority only in "exceptional cases." Faith, 131 N.E.3d at 160. Thus, we generally defer to the trial court's decision, and our goal is to determine whether the defendant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). "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).
[¶21] When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as the appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a Level 6 felony is a fixed term of imprisonment between six months and two and one-half years, with the advisory sentencing being one year. Ind. Code § 35-50-2-7(b). The sentencing range for a habitual offender enhancement for a Level 6 felony is between two and six years. Ind. Code § 35-50-2-8(i)(2). 11 A person convicted of a Class B misdemeanor may only be imprisoned for up to 180 days. Ind. Code § 35-50-3-3.
[¶22] Here, Webb received two and one-half years for each of his Level 6 felony convictions and ninety days for his Class B misdemeanor conviction, with all three sentences to be served concurrently. His sentence enhancement for his habitual offender determination was two and one-half years, which was three and one-half years less than the maximum. This resulted in an aggregate sentence of five years-the maximum that Webb could receive under the plea agreement.
[¶23] As to the nature of the offense, the evidence showed that Webb stalked seventy-two-year-old Thorndell by repeatedly coming onto her property and peeping into her windows from 9:56 p.m. until police apprehended him around 12:40 a.m. Webb spent hours walking around Thorndell's yard and talking to himself outside of her window. After Thorndell called police the first time because she heard men talking outside and saw someone looking into her window, Webb ran away from the house, and police could not locate him. However, he returned to the house a second time after the police had left and again looked into her window. When police arrived the second time, Webb again ran away and escaped detection by the police. The police then patrolled the area on foot and observed Webb approaching Thorndell's house for a third time and were able to detain him. Webb was intoxicated when he was detained, having consumed half a liter of Southern Comfort that night, and he registered a .101 on a portable breath test. 12
[¶24] As a result of Webb's actions, Thorndell continues to live in fear at her own home. She is afraid when she comes home after dark, fearful that Webb will be hiding in her shrubbery and is frightened when she hears someone talking outside her house. Her victim-impact letter expressed her desire to move, but her reluctance to do so, because that would mean Webb had "won." Tr. at 25.
[¶25] To show his sentence is inappropriate, Webb must portray the nature of his offense in a positive light, "such as accompanied by restraint, regard, and lack of brutality." Stephenson, 29 N.E.3d at 122. Based on Webb's actions, while intoxicated, of repeatedly coming onto Thorndell's property and looking into the windows of the home of a seventy-two-year-old woman, which caused her fear on the night of the event and which still continues to make her afraid in her own home, we conclude that Webb's sentence is not inappropriate in light of the nature of the offense.
[¶26] As to Webb's character, the evidence showed that he has an extensive criminal history. The law is well-established that it is proper for a trial court to consider a defendant's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). Although there was some dispute about the exact number of misdemeanors and felonies that Webb had accumulated, the evidence showed that he had been convicted of at least ten felonies and fourteen misdemeanors.
[¶27] Webb's criminal history started in 1998 and continued until the present case, which occurred in November 2020. His criminal history consisted of convictions for numerous drug charges, various sex crimes, an OWI, theft, four 13 counts of public indecency, and several counts of resisting law enforcement, and his past terms of probation or parole had been revoked. Six of Webb's prior convictions were for voyeurism. His criminal record demonstrates that prior attempts at rehabilitation have not caused him to stop committing criminal offenses, particularly the crime of voyeurism. Webb has not met his burden to show "substantial virtuous traits or persistent examples of good character" such that his requested reduction of his sentence is warranted based on his character. Stephenson, 29 N.E.3d at 122. We, therefore, do not find that Webb's sentence is inappropriate in light of his character.
[¶28] Thus, Webb has not shown that his sentence is inappropriate in light of the nature of the offense and the character of the offender.
[¶29] Affirmed.
Robb, J., and Riley, J., concur. 14