Jerald Clark, III v. State of Indiana (mem. dec.) ( 2016 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                               FILED
    this Memorandum Decision shall not be                           Sep 01 2016, 5:57 am
    regarded as precedent or cited before any                            CLERK
    court except for the purpose of establishing                     Indiana Supreme Court
    Court of Appeals
    the defense of res judicata, collateral                               and Tax Court
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Scott L. Barnhart                                        Gregory F. Zoeller
    Brooke Smith                                             Attorney General of Indiana
    Keffer Barnhart, LLP
    Indianapolis, Indiana                                    Tyler G. Banks
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jerald Clark, III,                                       September 1, 2016
    Appellant-Defendant,                                     Court of Appeals Case No.
    82A01-1602-CR-386
    v.                                               Appeal from the Vanderburgh
    Circuit Court
    State of Indiana,                                        The Honorable Michael J. Cox,
    Appellee-Plaintiff.                                      Magistrate Judge
    Trial Court Cause No.
    82C01-1507-F5-3991
    May, Judge.
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 1 of 7
    [1]   Jerald Clark, III, appeals his eight and one-half year sentence for Level 6 felony
    auto theft with habitual offender enhancement, 1 Level 6 felony resisting law
    enforcement with habitual offender enhancement, 2 Level 6 felony operating a
    vehicle while privileges are suspended, 3 Class A misdemeanor resisting law
    enforcement, 4 and two counts of Class A misdemeanor leaving the scene of an
    accident with bodily injury. 5 Additionally, Clark appeals the accuracy of the
    sentencing order. The trial court did not abuse its discretion by declining to
    find mitigators, but the sentencing order is inaccurate. Accordingly we affirm
    and remand.
    Facts and Procedural History
    [2]   On July 7, 2015, Clark stole a car, confined his ex-girlfriend in it, fled from
    police, collided with two other vehicles, and then fled on foot before being
    apprehended by police. On January 4, 2016, Clark entered a plea agreement
    with the State regarding the seven crimes with which he was charged on July
    10, 2015. The State dismissed a Level 5 felony criminal confinement charge,
    1
    Ind. Code § 35-43-4-2.5 (2014) and Ind. Code § 35-50-2-8 (2015).
    2
    Ind. Code § 35-44.1-3-1 (2014) and Ind. Code § 35-50-2-8 (2015).
    3
    Ind. Code § 9-30-10-16 (2015).
    4
    Ind. Code § 35-44.1-3-1 (2014).
    5
    Ind. Code § 9-26-1-1.1 (2015).
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 2 of 7
    together with its attendant habitual offender allegation, and Clark pled guilty to
    the remaining six crimes.
    [3]   Clark requested mercy at the sentencing hearing due to his extensive history of
    substance abuse. The trial court made a comprehensive sentencing statement
    wherein it detailed Clark’s “exquisite” criminal history, (Tr. at 15), found the
    injuries and damages to the victims were “significant,” (id. at 16), and did “not
    find any mitigating factors.” (Id.) The trial court imposed a two and one-half
    year sentence for auto theft (Count II), which it enhanced by six years for a
    habitual offender finding; a two and one-half year sentence for felony resisting
    law enforcement (Count III), which it enhanced by six years for a habitual
    offender finding; two and one-half years for operating a vehicle after being a
    habitual traffic offender (Count IV); and one year each for the misdemeanors
    (Counts V, VI, & VII). The court noted the underlying offense sentence in
    Count II and the habitual offender enhancement sentence “are to run
    consecutively to one another.” (Id. at 16.) It ordered likewise for the Count III
    sentence and then ordered “Counts II, III, IV, V, VI and VII shall run
    concurrently with one another for a total period of incarceration of 8½ years.”
    (Id. at 18.)
    Discussion and Decision
    Mitigating Circumstances
    [4]   Clark asserts the trial court abused its discretion when sentencing him because it
    did not find any mitigating circumstances. He claims the court should have
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 3 of 7
    found his guilty plea, his extensive substance abuse problems, and his remorse
    to be mitigating factors.
    [5]   When the trial court imposes a sentence within the statutory range, we review
    for an abuse of discretion. Anglemyer v. State, 
    868 N.E.2d 482
    , 490 (Ind. 2007),
    clarified on reh’g, 
    875 N.E.2d 218
    (Ind. 2007). We may reverse a decision that 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. (quoting In
    re L.J.M ., 
    473 N.E.2d 637
    , 640 (Ind. Ct. App.
    1985)). Our review of the trial court’s exercise of discretion in sentencing
    includes an examination of its reasons for imposing the sentence. 
    Id. “This necessarily
    requires a statement of facts, in some detail, which are peculiar to
    the particular defendant and the crime . . . [and] such facts must have support in
    the record.” 
    Id. [6] The
    trial court is not required to find mitigating circumstances. Fugate v. State,
    
    608 N.E.2d 1370
    , 1374 (Ind. 1993). When a defendant offers evidence of
    mitigators, the trial court has the discretion to determine whether the factors are
    mitigating, and it is not required to explain why it does not find the proffered
    factors to be mitigating. Taylor v. State, 
    681 N.E.2d 1105
    , 1112 (Ind. 1997).
    However, a court abuses its discretion if it does not consider significant
    mitigators advanced by the defendant and clearly supported by the record.
    
    Anglemyer, 868 N.E.2d at 490
    .
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 4 of 7
    [7]   The court did not abuse its discretion by failing to declare Clark’s guilty plea a
    mitigator, as he received significant benefit from the plea bargain. See Fields v.
    State, 
    852 N.E.2d 1030
    , 1034 (Ind. Ct. App. 2006) (when defendant receives
    significant benefit, plea “does not reflect as favorably upon [defendant’s]
    character as it might otherwise”), trans. denied. In return for Clark’s guilty plea,
    the State agreed to drop the most serious charge, Level 5 felony criminal
    confinement. A conviction thereof could have increased Clark’s possible
    underlying sentence from two and one-half years to six years. Compare Ind.
    Code § 35-50-2-6(b) (Level 5 felony carries a maximum six years), with Ind.
    Code § 35-50-2-7(b) (Level 6 felony carries a maximum two and one-half years).
    In addition, if Clark had been convicted of the Level 5 felony, he would have
    been qualified to be assigned only to “Class B” as a prisoner and could have
    only “earn[ed] one (1) day of good time credit for every three (3) days” he was
    imprisoned. See Ind. Code § 35-50-6-3.1(c) and Ind. Code § 35-50-6-4 (b). As
    the State dismissed the Level 5 felony and Clark was convicted only of the
    Level 6 felony, he qualifies to be assigned to “Class A” and can “earn[] one (1)
    day of good time credit for each day” he is imprisoned. See Ind. Code § 35-50-
    6-3.1(b) and Ind. Code § 35-50-6-4(a). As such, Clark received significant
    benefit for his guilty plea.
    [8]   Clark’s assertion the court should have found his substance abuse issues to be a
    mitigator is not supported by the record as he has not taken advantage of prior
    court orders to complete substance abuse treatments. Clark was twice found in
    contempt for failing to complete substance abuse counseling and treatment. As
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 5 of 7
    a youth, Clark did not complete the Youth Alcohol Program (YAP) and was
    ordered to serve his sentence incarcerated instead. Although Clark has a
    fourteen-year criminal history involving substance abuse, he has not resolved
    his substance abuse issues. In such a circumstance, the court was not required
    to find a mitigator. See Caraway v. State, 
    959 N.E.2d 847
    , 952 (Ind. Ct. App.
    2011) (no error when trial court found as an aggravator that Caraway
    recognized addiction but did not seek treatment), trans. denied.
    [9]   Finally, Clark’s assertions regarding his remorse are not supported by the
    record. He did “ask for mercy of the Court . . . I need some kind of treatment .
    . . for my, uh, addiction to come out to society and be a better person.” (Tr. at
    4.) However, when the trial court was explaining the possible sentence, Clark
    stated “since I signed the plea, I’d look more towards 2 [years] than 6 [years.]”
    (Tr. at 12.) The trial court went to great lengths to be sure Clark understood the
    habitual offender enhancement would increase his sentence. Still, instead of
    expressing remorse for his actions, Clark said, “I didn’t think there was anyway
    [sic] possible I could be facing anywhere remotely close to 8½ years on Level
    6’s, you know.” (Id. at 13.) We find no error in the trial court not recognizing
    Clark as remorseful. See Chambliss v. State, 
    746 N.E.2d 73
    , 78-79 (Ind. 2001)
    (trial court did not abuse its discretion when it did not recognize remorse as a
    mitigating circumstance, even though the defendant read a note to the family of
    the victim and defendant’s attorney referred to his remorse during the hearing).
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 6 of 7
    Sentencing Order
    [10]   Clark asserts the sentencing order is not clear enough because it says all the
    sentences should be served both consecutively and concurrently. As it is
    impossible to serve the sentences both consecutively and concurrently, we agree
    the order must be corrected. The State asserts the underlying felony sentences
    and the habitual offender sentences should not be listed separately. We agree.
    See Hendrix v. State, 
    759 N.E.2d 1045
    , 1048 (Ind. 2001) (“habitual offender
    finding does not constitute a separate crime nor does it result in a separate
    sentence”). Accordingly, we remand for the trial court to clarify and correct the
    sentencing order.
    Conclusion
    [11]   As the trial court did not abuse its discretion when it found no mitigating
    factors, we affirm Clark’s sentence. However, we remand the sentencing order
    for clarification and correction.
    [12]   Affirmed and remanded.
    Kirsch, J., and Crone, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-386 | September 1, 2016   Page 7 of 7