Mark A. Dickmeyer v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 25 2016, 7:31 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Dickmeyer, October 25, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1604-CR-851
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1510-F6-1030
Pyle, Judge.
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Statement of the Case
[1] Mark A. Dickmeyer (“Dickmeyer”) appeals the sentence imposed by the trial
court following his guilty plea to Level 6 felony residential entry.1 Dickmeyer
argues that his two-year sentence is inappropriate. Concluding that Dickmeyer
has failed to show that his sentence is inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Dickmeyer’s sentence is inappropriate pursuant to
Indiana Appellate Rule 7(B).
Facts
[3] On October 25, 2015, Dickmeyer broke and entered the house of Kevin
Patterson (“Patterson”). The State charged Dickmeyer with Level 6 felony
residential entry. On February 16, 2016, Dickmeyer pled guilty as charged
without a plea agreement.
[4] At Dickmeyer’s sentencing hearing, he stated that he was an alcoholic and had
been attending Alcoholics Anonymous for ten years. He also stated that he had
“a problem with narcotics[.]” (Sent. Tr. 9). Dickmeyer claimed that he had
“no memory” of breaking into Patterson’s house because he had been drinking
1
IND. CODE § 35-43-2-1.5.
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and “went into a black out[.]” (Sent. Tr. 7). He also stated that most of his
prior offenses were either alcohol or drug related.
[5] When sentencing Dickmeyer, the trial court stated, in relevant part:
[A]s I look back on this matter, I see Mr. Dickmeyer as
comprehensively outlined by the State not really honest to the
Court this morning . . . I don’t see a lot of remorse this morning.
He’s not even taking responsibility for breaking into a
homeowner’s home. He’s saying that he blacked out and doesn’t
remember it, but I’m sure during the plea all of his rights were
given, and he made a factual basis. So since that time, I guess
he’s changed his tune a little bit now that we are at sentencing. I
note that [Dickmeyer] has one juvenile delinquency, as an adult
he has five prior misdemeanor convictions, seven prior confirmed
felony convictions, and as outline by the State, he’s been
convicted of burglary twice, robbery twice, theft twice, and
possession of a controlled substance. His prior criminal history
concerns me greatly. I also take the facts and circumstances, in
this case, and show that they are quite aggravating as I believe
the homeowner was, if I read this right, he was sleeping. . . .
That’s one of the worst nightmares I think anybody in their own
home could face when sleeping. I’ll show prior attempts of
rehabilitation have failed. His risk to reoffend, obviously, is at
high risk.
(Sent. Tr. 14-15). Thereafter, the trial court imposed a two (2) year sentence to
be executed at the Department of Correction. 2 Dickmeyer now appeals.
2
The trial court informed Dickmeyer that he would likely serve his sentence at the Allen County Jail and
told him that he should sign up for the jail’s “fantastic substance abuse program[.]” (Sent. Tr. 18).
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Decision
[6] Dickmeyer argues that his two-year sentence was inappropriate “in light of his
remorse and acceptance of responsibility.” (Dickmeyer’s Br. 8). He contends
that this Court should revise his sentence to an advisory sentence of one year.
[7] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Id. at 1224.
[8] When determining whether a sentence is inappropriate, we acknowledge that
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, Dickmeyer pled guilty to Level 6 felony residential entry. A Level 6
felony has a sentencing range of six (6) months to two and one-half (2½) years
with an advisory sentence of one (1) year. I.C. § 35-50-2-7(b). The trial court
imposed a two (2) year sentence.
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[9] The nature of Dickmeyer’s offense involved breaking and entering the home of
the victim, who was sleeping at the time. The probable cause affidavit attached
to the presentence investigation report (“PSI”) reveals that the victim woke up
after hearing Dickmeyer in the house and then yelled at Dickmeyer, who fled
by crawling out a window.
[10] Turning to Dickmeyer’s character, we acknowledge that he pled guilty.
However, as the trial court noted, Dickmeyer did not fully accept responsibility
and, instead, offered his drinking as an excuse for his offense. He has a history
of alcohol and drug abuse. Dickmeyer told the trial court that his criminal
history was mainly alcohol related and failed to acknowledge his prior burglary,
robbery, and theft convictions. At the time of sentencing, Dickmeyer was fifty-
six years old and had amassed seven felony convictions, including two burglary
convictions, two robbery convictions, two theft convictions, and one possession
of a controlled substance conviction. He also had five prior misdemeanor
convictions (including two convictions for criminal conversion, two operating
while intoxicated convictions, and one public intoxication conviction) and a
juvenile delinquency adjudication (which would have been 1st degree burglary
if committed by an adult).3 Additionally, the PSI reveals that Dickmeyer was
on parole from two separate theft convictions at the time of this current offense.
3
The juvenile adjudication occurred in 1977.
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The record before us reveals that Dickmeyer has a disregard for the law and has
failed to reform.
[11] Dickmeyer contends that the trial court should have placed him in the Hope
Probation Program. The trial court, however, specifically addressed and denied
that request at sentencing, explaining that “the thing about HOPE probation is
that I have to have people before me that take responsibility constantly, that
don’t lie, that take responsibility, [and] that really, really want to get help[.]”
(Sent. Tr. 15-16).
[12] Dickmeyer has not persuaded us that his two-year sentence for his Level 6
felony residential entry conviction is inappropriate. Therefore, we affirm the
trial court’s sentence.
[13] Affirmed.
Bradford, J., and Altice, J., concur.
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