Jerry Strawser v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Apr 28 2016, 7:33 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court
Court of Appeals
this Memorandum Decision shall not be and Tax Court
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Benjamin Loheide Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Strawser, April 28, 2016
Appellant-Defendant, Court of Appeals Case No.
03A05-1510-CR-1573
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable James D. Worton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03D01-1410-F3-4542
Altice, Judge.
Case Summary
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[1] Jerry Strawser pled guilty to three counts of Robbery as a Level 3 felony and
was sentenced to an aggregate term of thirty-six years executed in the
Department of Correction. Strawser now appeals, contending that his sentence
is inappropriate pursuant to Ind. Appellate Rule 7(B).
[2] We affirm.
Facts & Procedural History
[3] On September 28, 2014, Strawser and James Maddox drove from Detroit,
Michigan to Columbus, Indiana for the purpose of robbing a specific gas
station. During the ride, Strawser used heroin and smoked marijuana. When
they arrived in Columbus, Strawser entered the gas station while wearing a
mask and pointed a handgun at the clerk, Miranda Baker, and demanded
money. Baker gave Strawser the money from the register, and he then ordered
her to the back room and demanded that she open two safes.
[4] While Strawser was behind the counter with Baker, Florentina Perez Ruiz and
her brother, Rogelio Perez Ruiz, entered the gas station for their morning
coffee. Florentina saw Strawser’s mask and thought it was a joke, so she smiled
at him and laughed. Strawser pointed his gun at Florentina and Rogelio and
demanded money. Florentina immediately complied, but Rogelio gave
Strawser only part of his money. Strawser became angry and struck Rogelio in
the head with the gun.
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[5] Meanwhile, police had been alerted to the robbery and surrounded the gas
station. Strawser exited the gas station and ran to a neighboring parking lot
where Maddox was waiting for him in a vehicle. Strawser and Maddox
managed to elude police and drove to a restaurant approximately eight miles
away. Strawser and Maddox were apprehended after police located the vehicle
in the restaurant’s parking lot.
[6] As a result of these events, the State charged Strawser with three counts of
Level 3 felony robbery, one count of Level 5 felony battery, and one count of
Level 5 felony possession of an altered handgun. Strawser subsequently entered
into a plea agreement pursuant to which he pled guilty to the three counts of
robbery in exchange for dismissal of the remaining charges. On September 8,
2015, the trial court sentenced Strawser to consecutive terms of ten years for
robbing Baker, sixteen years for robbing Rogelio, and ten years for robbing
Florentina. Thus, Strawser received an aggregate sentence of thirty-six years
executed in the Department of Correction. Strawser now appeals. Additional
facts will be provided as necessary.
Discussion & Decision
[7] Strawser contends that his sentence is inappropriate in light of the nature of his
offense and his character. Article 7, section 4 of the Indiana Constitution grants
our Supreme Court the power to review and revise criminal sentences. See
Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S. Ct. 978
(2015). Pursuant to A.R. 7, our Supreme Court authorized this court to
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perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4
N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentence review under
Appellate Rule 7(B) is very deferential to the trial court.” 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).
Strawser bears the burden on appeal of persuading us that his sentence is
inappropriate. See Conley, 972 N.E.2d at 876.
[8] The determination of whether we regard a sentence as inappropriate “turns on
our sense of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” King v. State,
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894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Additionally,
“appellate review should focus 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.
[9] To assess the appropriateness of a sentence, we first look to the statutory range
established for the classification of the relevant offenses. Strawser was
convicted of three Level 3 felonies. The advisory sentence for a Level 3 felony
is nine years, with a minimum and maximum sentence of three years and
sixteen years, respectively. Ind. Code § 35-50-2-5. Strawser was sentenced to
consecutive terms of ten years for robbing Baker, ten years for robbing
Florentina, and sixteen years for robbing Rogelio, for an aggregate sentence of
thirty-six years.
[10] With respect to the nature of the offenses, we note that Strawser and Maddox
drove approximately five hours from Detroit to Columbus for the purpose of
robbing this specific gas station. At his sentencing hearing, Strawser testified
that he had targeted Columbus because it was a “clean city” with “nice
people.” Transcript at 26. Strawser robbed Baker at gunpoint, and when
Florentina and Rogelio came into the gas station to buy their morning coffee,
Strawser took the opportunity to rob them as well. When Rogelio resisted
giving Strawser his money, Strawser struck him in the head with the gun.
Strawser then fled from the gas station and was subsequently apprehended at a
nearby restaurant. We are unpersuaded by Strawser’s argument that
consecutive sentences are inappropriate because the offenses were part of a
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single episode of criminal conduct. As Strawser acknowledges, consecutive
sentences were permissible under I.C. § 35-50-1-2 because robbery is classified
as a crime of violence. The existence of multiple victims was sufficient to
justify consecutive sentences in this case. See Gilliam v. State, 901 N.E.2d 72, 74
(Ind. Ct. App. 2009) (noting that a single aggravating circumstance, such as the
presence of multiple victims, may justify the imposition of consecutive
sentences).
[11] As to Strawser’s character, the record reveals that at only twenty-three years
old, he already has a long history of delinquent and criminal behavior in his
home state of Michigan. At fourteen years old, Strawser was adjudicated
delinquent for committing retail fraud. At eighteen years old, Strawser was
convicted under two separate cause numbers of attempted breaking and
entering and malicious destruction of a building, both as misdemeanors. While
on probation for these offenses, Strawser committed attempted retail fraud, a
felony. He was sentenced to eighteen months on probation, but his probation
was revoked because he “didn’t show up.” Transcript at 12. He was sentenced
to the Michigan Department of Correction for a term ranging from four months
to two and a half years. He was released in January 2014 without parole
supervision after serving the maximum sentence due to his poor behavior in
prison, including fighting and gang involvement. Less than a year later, he
committed the instant offenses. Strawser’s behavior while incarcerated in
Indiana has been atrocious. He has been found guilty of numerous jail rule
violations for actions ranging from flooding his cell, physically attacking
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another inmate, throwing bodily waste on another inmate, damaging jail
property, intimidation, and disorderly conduct.
[12] Nevertheless, Strawser argues that his sentence should be reduced because he
had a difficult childhood. Our Supreme Court has noted, however, “that
evidence of a difficult childhood warrants little, if any, mitigating weight.”
Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007). Strawser also suggests that his
sentence is inappropriately harsh in light of his substance abuse problems and
his expression of remorse. Although we acknowledge that Strawser apparently
has a substance abuse problem, we also note that he was ordered to participate
in substance abuse services while on probation in Michigan. In February 2011,
a warrant was issued for his arrest for failure to attend outpatient counseling
and drug testing, and he was ordered to perform community service as a
sanction. Under these circumstances, we cannot conclude that Strawser’s
substance abuse problem weighs significantly in favor of a sentence reduction.
See Caraway v. State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011) (holding that
substance abuse may be considered an aggravating circumstance where the
defendant is aware of his addiction and does not seek treatment), trans. denied.
[13] We also observe that the trial court did not find Strawser’s expression of
remorse to be a significant mitigating factor. See Hape v. State, 903 N.E.2d 977,
1002-03 (Ind. Ct. App. 2009) (explaining that “our review of a trial court’s
determination of a defendant’s remorse is similar to our review of credibility
judgments: without evidence of some impermissible consideration by the trial
court, we accept its determination”), trans. denied. We find the sincerity of his
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remorse highly dubious in light of his behavior while in jail and his attempts to
minimize the severity of his crimes at the sentencing hearing and in the pre-
sentence investigation report.1 For all of these reasons, we readily conclude that
Strawser’s thirty-six-year executed sentence is not inappropriate.
[14] We affirm.
[15] Bailey, J. and Bradford, J., concur.
1
At the sentencing hearing, Strawser testified that he “tapped [Rogelio] on the head” with the gun and that
“if [he] was really trying to harm anybody [he] would have shot somebody.” Transcript at 21. Strawser told
the probation officer preparing his pre-sentence investigation report that he believed the sentencing range
applicable to his offenses was “ridiculous” because “nobody died, got shot, everything was returned.”
Appellant’s Appendix at 39.
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