William Hunter v. State of Indiana , 60 N.E.3d 284 ( 2016 )

FILED
Jul 21 2016, 6:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Hunter, July 21, 2016
Appellant-Defendant, Court of Appeals Case No.
34A04-1506-CR-751
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray,
Appellee-Plaintiff Judge
Trial Court Cause No.
34C01-1408-FB-122
Bailey, Judge.
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 1 of 8
Case Summary
[1] William Hunter (“Hunter”) pled guilty to a single count of Possession of a
Firearm by a Serious Violent Felon, as a Class B felony. 1 The trial court
sentenced Hunter to twenty years imprisonment, with five years to be served on
in-home detention. He now appeals, raising for our review only whether his
sentence is inappropriate under Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History
[3] On May 8, 2014, Hunter, who had been convicted of Burglary, as a Class B
felony, in 2004, attempted to pawn several shotguns and rifles that had
apparently been reported as stolen as the result of a burglary. Police arrested
Hunter, and on May 29, 2014, the State charged Hunter with Possession of a
Firearm by a Serious Violent Felon. On July 17, 2014, the State amended the
charging information to include a count of Receiving Stolen Property, as a
Class D felony.2 On July 11, 2014, in a different cause, the State charged
1
Ind. Code 35-47-4-5 (2012). Hunter committed his offense prior to the effective date of wide-reaching
amendments to Indiana’s criminal statutes. We refer throughout to the substantive portions of those statutes
in effect at the time of Hunter’s offense.
2
I.C. § 35-43-4-2(b).
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 2 of 8
Hunter with misdemeanor-level Resisting Law Enforcement.3 On August 12,
2014, the State filed charges against Hunter in several additional causes, adding
eight additional felony-level charges for Receiving Stolen Property, Theft,4
Burglary,5 and Fraud.6
[4] On April 9, 2015, Hunter and the State filed a “Recommendation of Plea,” in
which Hunter represented that he would enter a plea of guilty as to the single
count of Possession of a Firearm by a Serious Violent Felon, and the State
represented that it would, “in exchange therefor,” dismiss the other charges
against Hunter. (App’x at 62.) Subsequent to this, a pre-sentencing
investigation report was prepared and filed with the trial court.
[5] On May 27, 2015, the trial court conducted a change-of-plea hearing, during
which Hunter pled guilty to Possession of a Firearm by a Serious Violent Felon,
and the State moved to dismiss the remaining charges. The trial court accepted
the plea and granted the State’s motion. At the conclusion of the hearing, the
trial court entered judgment of conviction against Hunter and sentenced him to
twenty years imprisonment, with five years to be served on in-home detention.
3
I.C. § 35-44.1-3-1(a)(1).
4
I.C. § 35-43-4-2(a)(1)(A).
5
I.C. § 35-43-2-1.
6
I.C. § 35-43-5-4(1).
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 3 of 8
The court also ordered Hunter to pay restitution to the owners of the stolen
firearms.
[6] This appeal ensued.
Discussion and Decision
Inappropriateness of Sentence
[7] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[8] Here, Hunter was convicted of a single count of Possession of a Firearm by a
Serious Violent Felon, as a Class B felony. As a result, he faced a sentencing
range of six to twenty years imprisonment, with an advisory term of ten years.
I.C. § 35-50-2-5(a).
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 4 of 8
[9] Looking first to the nature of Hunter’s offense, Hunter, who had in 2004 been
adjudicated a serious violent felon, was determined to have possessed multiple
shotguns and a rifle when he was not, under Indiana law, permitted to possess
any firearms because of his prior conviction for Burglary. The firearms had
been reported as stolen, and had come into Hunter’s possession. Hunter
attempted to pawn the firearms, and was apprehended by police as a result.
During the presentencing investigation, Hunter indicated that because he had
been living in Tennessee for some period of time, he was mistaken about the
duration of time during which he could not possess any type of firearm in
Indiana. We note, however, that Hunter committed the predicate offense of
Burglary in Indiana, he was convicted of that offense in Indiana, and it is long
settled in Indiana that ignorance of the law does not excuse criminal conduct.
Dewald v. State, 898 N.E.2d 488, 493 (Ind. Ct. App. 2008) (citing Yoder v. State,
208 Ind. 50, 194 N.E. 645, 648 (1935)). The nature of Hunter’s offense—
possessing not one but multiple firearms, some stolen, and attempting to pawn
them—supports an aggravated sentence.
[10] Hunter’s character also speaks poorly of him. Hunter’s encounters with the
criminal justice system began as a juvenile, when he was adjudicated a
delinquent for conduct that would constitute felony-level Sexual Battery if
committed by an adult. As an adult, Hunter accrued convictions in Indiana for
Theft, False Informing, and Driving while Suspended, as Class A
misdemeanors; the predicate offense in this case, Burglary, as a Class B felony;
and Escape, as a Class C felony. However, Hunter has also had numerous,
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 5 of 8
encounters with law enforcement since reaching adulthood, with charges filed
against him in Indiana for an array of offenses including Possession of a
Firearm without a License, Sexual Misconduct with a Minor, numerous
alcohol- and substance-related offenses, and numerous property crimes. While
living in Tennessee, Hunter was charged in 2013 with Theft and numerous
counts of Forgery, and with Possession of a Schedule III Narcotic.
[11] To his credit, Hunter pled guilty in this case. However, he received a
significant benefit: while Hunter was convicted of a Class B felony, the State
agreed to dismiss nine felony counts, including multiple felony counts of
Burglary, Fraud, and Receiving Stolen Property, and Theft, and a single count
of misdemeanor-level Resisting Law Enforcement. Moreover, additional
charges of Forgery and Theft were pending against Hunter in another case in
Miami County. Further, Hunter, a father of two children, indicated that his
financial and employment status was unstable, and he admitted to a long
pattern of substance abuse that ended only in 2014—that is, the year he
committed the instant offense.
[12] In light of the nature of his offense and his character, we cannot conclude that
Hunter’s statutory maximum sentence, with five years to be served on in-home
detention, is inappropriate.
“Recommendation of Plea”
[13] We write additionally, sua sponte, to note an unusual and concerning facet of
this case. The trial court here was presented with a document captioned as a
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 6 of 8
“Recommendation of Plea” and signed by counsel for both parties and by
Hunter himself. The trial court apparently viewed the Recommendation of
Plea as something other than a plea agreement, and thus believed it lacked any
discretion over whether to accept or reject Hunter’s plea and the State’s
dismissal of the remaining charges in exchange for the plea. Prior to
determining Hunter’s sentence, the trial court stated:
I guess I would first make the point that this is not really your
typical plea agreement or plea bargain. I feel this is not anything
in which the [C]ourt, I, really have a lot of discretion about. The
State has decided only to pursue one charge and to dismiss the
other 9 felonies and Mr. Hunter has agreed to plead guilty to it
and be open to the [C]ourt. It’s not anything in which I have the
power either to accept or to reject, which I guess I particularly
would note because of my presentence report from my probation
department told me I should reject this, when in fact I don’t even
have that type of discretion.
(Tr. at 15-16.)
[14] The Recommendation of Plea document set forth a quid pro quo arrangement
whereby Hunter agreed to enter a guilty plea on one charge, with the State
agreeing to dismiss other charges “in exchange therefor.” (App’x at 62.) The
document went on to recite—as would a plea agreement—the various
representations and waivers ordinarily present in a plea agreement. This
included the following text: “I understand that the Court is not bound by this
Recommendation of Plea.” (App’x at 62.)
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 7 of 8
[15] “James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely
credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see
a bird that walks like a duck and swims like a duck and quacks like a duck, I
call that bird a duck.’” Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d
1146, 1148 (Ind. 2013). This Recommendation of Plea is a duck—or, caption
aside, a plea agreement. Trial courts have discretion to accept or reject plea
agreements. I.C. § 35-35-3-3(b); Pannarale v. State, 638 N.E.2d 1247, 1248 (Ind.
1994) (citing I.C. § 35-35-3-3). Generally, the substance of a pleading or motion
governs over its form. Fajardo v. State, 859 N.E.2d 121, 1206-08 (Ind. 2007)
(applying the “substance/form” test with respect to an amended charging
information); Preferred Prof. Ins. Co. v. West, 23 N.E.3d 716, 732 (Ind. Ct. App.
2014) (recognizing “it is the substance of a claim, not its caption” that
determines the need to comply with the Medical Malpractice Act), trans. denied.
The trial court would, then, have been able to exercise its discretion to decide
whether to accept or reject the plea agreement.
Conclusion
[16] Hunter’s sentence was not inappropriate.
[17] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana |Opinion 34A04-1506-CR-751| July 21, 2016 Page 8 of 8