Randy Ebrecht v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 10 2016, 8:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Erin L. Berger
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randy Ebrecht, June 10, 2016
Appellant-Defendant, Court of Appeals Case No.
87A04-1512-CR-2350
v. Appeal from the Warrick Superior
Court
State of Indiana, The Honorable Amy Steinkamp
Appellee-Plaintiff. Miskimen, Magistrate
Trial Court Cause No.
87D02-1509-CM-690
Najam, Judge.
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Statement of the Case
[1] Randy Ebrecht appeals his sentence following his conviction for battery, as a
Class A misdemeanor, pursuant to a guilty plea. He presents a single issue for
our review which we restate as whether the trial court abused its discretion
when it sentenced him.1 We affirm.
Facts and Procedural History
[2] On September 25, 2015, the State charged Ebrecht with battery, as a Class A
misdemeanor, after he allegedly battered his stepmother. On December 14,
Ebrecht pleaded guilty as charged. Ebrecht chose not to give a statement at
sentencing, and the trial court sentenced him to one year of work release, with
ten months executed and two months suspended to probation. At the
conclusion of the sentencing hearing, after the trial court had imposed sentence,
the court stated as follows:
And sir, I will notify you that the sentence I imposed was due to
the severity of the injuries suffered here. The fact that this
happened to a family member[,] that puts her in a special class of
victim. The fact that she suffers from a disability, um, her
testimony here today that she believed she was going to die, if
her husband had not been present, and been able to pull you off
of her. The pictures [of her injuries] . . . [and] the pure lack of
remorse that is shown to this Court here today by you and lack of
1
Ebrecht styles his argument on appeal as a challenge under Appellate Rule 7(B), but, in the argument
section of his brief, he addresses neither the nature of the offense nor his character. Instead, Ebrecht appears
to argue that the trial court abused its discretion when it sentenced him. Accordingly, that is the only issue
we address here.
Court of Appeals of Indiana | Memorandum Decision 87A04-1512-CR-2350 | June 10, 2016 Page 2 of 4
emotion. And I am taking into account the safety of the
community as well.
Tr. at 22. This appeal ensued.
Discussion and Decision
[3] Initially, we note that the State has not filed an appellee’s brief. 2 When an
appellee fails to submit a brief, we do not undertake the burden of developing
appellee’s arguments. K.L. v. E.H., 6 N.E.3d 1021, 1029 (Ind. Ct. App. 2014).
Instead, we apply a less stringent standard of review and may reverse if the
appellant establishes prima facie error. Id. “Prima facie error in this context is
defined as, at first sight, on first appearance, or on the face of it.” Falatovics v.
Falatovics, 15 N.E.3d 108, 110 (Ind. Ct. App. 2014) (citation omitted). With
this in mind, we address Ebrecht’s argument on appeal.
[4] Ebrecht contends that the trial court abused its discretion when it sentenced
him. In particular, Ebrecht maintains that the trial court “had no basis for its
assertion that [Ebrecht] showed a lack of remorse and lack of emotion because
[Ebrecht] made no submission to the trial court.” Appellant’s Br. at 3.
However, the sentencing statute for Class A misdemeanors does not provide a
presumptive or advisory sentence, but rather a maximum allowable sentence.
Ind. Code § 35-50-3-2 (2015); Creekmore v. State, 853 N.E.2d 523, 527 (Ind. Ct.
App. 2006). Therefore, the trial court was not required to articulate and
2
The State filed a motion to file a belated brief, which we denied.
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balance aggravating and mitigating circumstances before imposing sentence on
Ebrecht’s misdemeanor conviction. Creekmore, 853 N.E.2d at 527.
[5] Nor was the trial court required to issue a sentencing statement. As we have
held,
it is clear that abuse of discretion review of a sentence, which
concerns a trial court’s duty to issue a sentencing statement along
with its findings of aggravators and mitigators, has no place in
reviewing a misdemeanor sentence. See Cuyler v. State, 798
N.E.2d 243, 246 (Ind. Ct. App. 2003), trans. denied; see also
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (stating that
post-Blakely revisions to sentencing statutes included sentencing
statement requirement “whenever imposing sentence for a felony
offense”).
Morris v. State, 985 N.E.2d 364, 367 (Ind. Ct. App. 2013) (emphasis original),
aff’d in part, rev’d in part on other grounds on reh’g, 985 N.E.2d 364 (Ind. Ct. App.
2013). We hold that Ebrecht’s contention that the trial court abused its
discretion in sentencing him is without merit.3
[6] Affirmed.
[7] Robb, J., and Crone, J., concur.
3
We note that Ebrecht participated in the guilty plea hearing, which occurred immediately prior to
sentencing. The trial court observed Ebrecht’s demeanor and emotional state during the guilty plea hearing
and was entitled to conclude that Ebrecht demonstrated a “lack of emotion” based upon his interactions with
the court. Thus, despite Ebrecht’s lack of participation in the sentencing phase of the proceedings, the trial
court had an adequate basis to form an opinion.
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