Michael L. Zackmire v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 03 2017, 9:01 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan K. Coulter Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael L. Zackmire, July 3, 2017
Appellant-Defendant, Court of Appeals Case No.
23A01-1701-CR-202
v. Appeal from the Fountain Circuit
Court
State of Indiana, The Honorable Stephanie S.
Appellee-Plaintiff Campbell, Judge
Trial Court Cause No.
23C01-1509-F3-407
Altice, Judge.
Case Summary
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[1] Michael Zackmire pled guilty to two counts of Level 3 felony rape. The trial
court sentenced Zackmire to nine years executed for each conviction and
ordered the sentences to be served consecutively, for an aggregate sentence of
eighteen years. Zackmire appeals, challenging the sentence imposed in two
respects: 1) Zackmire contends that the trial court abused its sentencing
discretion and 2) he claims that his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On September 15, 2015, the State charged Zackmire with four counts of Level 3
felony rape. The trial court held a combined plea and sentencing hearing on
December 22, 2016. Pursuant to the terms of a plea agreement, Zackmire
agreed to plead guilty to two counts of Level 3 felony rape in exchange for
dismissal of the remaining charges. The plea agreement also provided that
sentencing would be left to the trial court’s discretion. At the guilty plea
hearing, Zackmire agreed with the factual basis for his convictions—that
between the dates of August 1, 2015, and September 8, 2015, he had sexual
intercourse and other sexual contact with J.S., a twenty-four-year-old female for
whom Zackmire was co-guardian and who was mentally incapable of
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consenting to sexual intercourse or other sexual contact. 1 The trial court
accepted Zackmire’s guilty plea.
[4] During the sentencing portion of the hearing, the trial court noted that it
considered the pre-sentence investigation report (PSI) and arguments of
counsel. The PSI indicated that Zackmire was fifty-two years old when he
committed the instant offenses. J.S. was Zackmire’s niece2 and Zackmire had
guardianship over her for approximately a year and a half before he raped her.
The PSI also indicated that Zackmire had no prior criminal history. In his
statement of the offense for purposes of the PSI, Zackmire claimed that at the
time he committed these offenses, he was under a lot of stress, drinking heavily,
and having marital problems.
[5] In pronouncing the sentence, the trial court made the following sentencing
statement:
The Court finds as an aggravating circumstance that you were in
a position of trust over this young lady. That is considered
aggravating, not because it’s just simply a position of trust over
this young lady, you were her court appointed guardian to
protect her and you took advantage. You manipulated that
position as her caregiver for your own personal satisfaction. You
were in a position of care, custody and control over this young
lady. This factor is considered aggravating because the victim
had been placed in the home that you shared with the victim’s
1
The victim’s mental age is reportedly twelve years of age.
2
Zackmire was adopted as an infant and thus his niece is not a blood relative.
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co-guardian and you failed to protect her while the co-guardian
was at work and away from the home. The nature of the crime is
considered as aggravating because these events were not isolated.
You demonstrated a pattern of abusive behavior over a several
week period. The victim was a virgin prior to your acts and you
took from her the beauty of what a loving, physical relationship
could be. You caused her physical pain. You have created in
her a general lack of trust and fear of men. The Court finds as a
mitigating factor your remorse. Factor is considered mitigating
because you have apologized. You have acknowledge [sic] your
guilt for your actions and did not put the victim through the pain
of testifying at trial. Your lack or prior criminal history is
considered a mitigating factor. The fact that the crime was a
result of circumstances unlikely to reoccur is a mitigating factor.
That it may create an undue hardship on you is considered a
mitigating factor. But the Court gets to balance mitigators
against aggravators and in this case the Court does give weight to
your expression of remorse and lack of prior criminal history,
and it gives substantial weight to the aggravators.
Transcript of 12-22-16 at 17-19. The trial court then sentenced Zackmire to the
advisory sentence of nine years3 on each count and ordered the sentences to be
served consecutively, for an aggregate sentence of eighteen years executed. The
trial court then explained its reasons for ordering consecutive sentences:
[T]he offenses were committed over a period of time. There were
days between your offenses which allowed you time to consider
the crimes you were committing and the impact those offenses
could have on your victim. You stole from your victim her right
3
See Ind. Code § 35-50-2-5 (“[a] person who commits a Level 3 felony (for a crime committed after June 30,
2014) shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory
sentence being nine (9) years”).
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to determine who and when she would surrender her virginity to.
You caused pain and physical injury to the victim. You took
advantage of her [sic] position of trust and care of the victim.
Your victim is disabled as defined by Indiana law and you knew
what her disability was.
Id. at 19. Zackmire now appeals.
Discussion & Decision
1. Abuse of Discretion
[6] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. “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. at 490 (quoting
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its
sentencing discretion in a number of ways, including: (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. Because trial courts are no longer
obligated to weigh aggravating and mitigating factors when imposing a
sentence, a trial court cannot be said to have abused its discretion in failing to
properly weigh such factors. Id. at 491.
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[7] Zackmire first argues that the trial court abused its sentencing discretion in
finding as separate aggravating factors that he was in a position of trust with the
victim and that he was in a position of care, custody, and control. Zackmire
claims that these aggravators are essentially the same and should have been
considered as one aggravator, not two.4
[8] Zackmire does not argue that the trial court’s considerations were improper, but
rather, seems to suggest that the balancing and weighing of aggravators and
mitigators is a product of comparing enumerated lists of aggravators and
mitigators with the greatest weight given to the longest list. This is simply not
the case. Here, the trial court carefully and thoughtfully discussed the
aggravating and mitigating circumstances and articulated the weight and
balancing of such factors in deciding what sentence to impose. We find no
abuse of discretion in the trial court’s consideration of the fact that Zackmire
was in a position of trust as a court appointed co-guardian of J.S. and that he
also was in a position of care, custody, and control when he was solely
responsible for J.S. while the co-guardian was at work.
4
In its written sentencing order, the trial court stated:
(1) [Zackmire] was in a position of trust. This factor is considered as aggravating in that the
victim was under his care as her court appointed guardian. [Zackmire] manipulated his position
as her caregiver for his own personal satisfaction;
(2) [Zackmire] was in a position of care, custody and control. This factor is considered as
aggravating because the victim had been placed in the home he shared with the victim’s co-
guardian and he failed to protect her while the co-guardian was at work.
Appellant’s Appendix Vol. 3 at 46-47.
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[9] Zackmire argues that the trial court abused its discretion in finding that the
victim had been a virgin because such finding was “not fully supported by the
record.” Appellant’s Brief at 9. As Zackmire notes, however, such fact is noted
in the probable cause affidavit that was included in the pre-sentence
investigation report and Zackmire did not object to inclusion of such
information therein. There is thus evidence in the record to support the trial
court’s finding in this regard.
[10] Zackmire also argues that the trial court abused its discretion in ordering the
sentences to run consecutively. As set out above, the trial court explained the
reasoning behind its decision to impose consecutive sentences, specifically
noting that the offenses were committed over a period of time and that
Zackmire had time to consider the crimes he was committing and the impact
they had on J.S. Zackmire claims that imposition of consecutive sentences
requires more than this “single statement.” Appellant’s Brief at 10.
[11] We disagree with Zackmire. Here, the trial court identified several aggravating
factors, including the repeated nature of the offenses, that the victim suffered
physical and emotional pain, that Zackmire abused a position of trust, and also
that the victim was disabled. The trial court articulated its balancing of these
factors with the identified mitigators. The trial court clearly identified several
aggravating factors and provided more than a single statement in explaining its
decision to impose consecutive sentences. The trial court did not abuse its
discretion in ordering Zackmire’s advisory sentences to be served consecutively.
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2. Appropriateness
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of a sentence imposed by the trial
court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer,
868 N.E.2d at 491). This appellate authority is implemented through Indiana
Appellate Rule 7(B), which provides that a court “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.” Anglemyer, 868 N.E.2d at 491.
Nevertheless, “we must and should exercise deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[12] Here, Zackmire pled guilty and received the advisory sentence of nine years for
both offenses when he could have received up to sixteen years for each offense.
The trial court ordered the sentences to be served consecutively. The starting
point that the Legislature has selected as an appropriate sentence for a crime is
the advisory sentence. Anglemyer, 868 N.E.2d at 494. Therefore, when the trial
court imposes the advisory sentence, the defendant bears a heavy burden in
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persuading this court that the sentence is inappropriate. McKinney v. State, 873
N.E.2d 630, 647 (Ind. Ct. App. 2007), trans. denied.
[13] With regard to the character of the offender, Zackmire asserts that he has
cooperated with authorities since the beginning of their investigation, that he
has no criminal history, that he is remorseful, that his overall risk assessment
places him in the low risk category to reoffend, and that he accepted
responsibility by pleading guilty thereby saving his victim the pain of testifying
at trial. He also points out that he owns a successful trucking company and that
he voluntarily sought out counseling prior to sentencing. As did the trial court,
we accept these factors as having some mitigating weight, but not as redeeming
character traits in light of the nature of the offense.
[14] The nature of the offense justifies the sentence imposed. Zackmire raped his
mentally disabled niece, over whom he had a guardianship, approximately
seven times in a period of a little more than a month. Zackmire admitted that
he knew J.S. could not make adult decisions and that she had the mental
capacity of a twelve-year-old. Moreover, after he committed his offenses, he
tried to cover them up by warning J.S. not to tell anyone and making her
shower after he raped her. In her victim impact statement, J.S. wrote that she
cannot trust men and has been depressed. The nature of the offenses supports
the trial court’s imposition of consecutive, advisory sentences for an aggregate
sentence of eighteen years.
[15] Judgment affirmed.
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[16] Kirsch, J. and Mathias, J., concur.
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