Calvin A. Lowe v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 26 2019, 8:14 am
regarded as precedent or cited before any
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
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin A. Lowe, August 26, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-574
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1808-F5-152
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Calvin Lowe (Lowe), appeals his sentence following his
guilty plea to attempted burglary, Ind. Code §§ 35-43-2-1, 35-41-5-1, a Level 5
felony; resisting law enforcement using a vehicle, I.C. §§ 35-44.1-3-1(a)(3), 35-
44.1-3-1(b)(1)(A), a Level 6 felony; and to being an habitual offender, I.C. § 35-
50-2-8(a).
[2] We affirm.
ISSUE
[3] Lowe presents one issue on appeal, which we restate as: Whether remand is
necessary for resentencing due to an inconsistency between the trial court’s oral
and written sentencing statements.
FACTS AND PROCEDURAL HISTORY
[4] On August 10, 2018, Lowe attempted to open the doors of a business, La
Zacatecana, 1 in Lafayette, Indiana, when it was closed and without the
permission of the owners. Lowe intended to commit a theft inside the business
if he had been successful at entering. When officers of the Lafayette Police
Department responded to an alarm signal, Lowe fled from them in his vehicle,
despite the fact that he was aware that the officers were in pursuit. According
to the probable cause affidavit filed in this case, officers noticed that the doors
1
This business is referred to as “La Sacatina” in the transcript. (Transcript Vol. II, p. 22).
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of two other businesses located in the same plaza as La Zacatecana “had their
locks punched out and appeared to have been tampered with.” (Appellant’s
App. Vol. II, p. 54).
[5] On August 15, 2018, the State filed an Information, charging Lowe with three
Counts of attempted burglary and one Count of resisting law enforcement using
a vehicle. In a separate Information, the State alleged that Lowe was an
habitual offender. On December 14, 2018, Lowe pleaded guilty to one Count
of attempted burglary, resisting law enforcement using a vehicle, and to being
an habitual offender due to having three prior, unrelated felony convictions in
the state of Illinois, two for forgery and one for theft.
[6] The presentence investigation report (PSI) revealed that Lowe had a total of five
prior felony convictions—three for forgery, one for burglary, and one for theft.
Lowe had violated his probation on three occasions, and he was on parole in
Illinois for one of his forgery convictions when he committed the instant
offenses. Lowe also had a felony theft case pending in Illinois. Lowe reported
having been diagnosed with bipolar disorder in 1998. The presentence
investigator recommended that the aggravating factors for sentencing were
Lowe’s criminal history and that he had recently violated the conditions of his
parole. The presentence investigator found no mitigating circumstances. The
presentence investigator recommended that the trial court impose a five-year
sentence on the attempted burglary conviction, enhanced by two years for being
an habitual offender, and a two-year sentence on the resisting law enforcement
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conviction, all to be served consecutively, for an aggregate sentence of nine
years.
[7] On February 8, 2019, the trial court held Lowe’s sentencing hearing. The State
argued that the mitigating circumstances were Lowe’s guilty plea and his
expressions of remorse but that the significance of the guilty plea was lessened
due to the benefit he gained in the dismissal of the other two burglary charges.
The State argued that the aggravating circumstances were Lowe’s criminal
history, his recent violation of the conditions of his parole, and the nature of the
offense, in that Lowe planned to commit the burglary and came to Lafayette
expressly to steal from businesses there. During his allocution Lowe told the
trial court that the offenses were the result of a negative mental health episode
and stated that “I’m just so embarrassed, I’ve never done anything like this
before, I feel ridiculous that it happened . . . .” (Tr. Vol. II, p. 34).
[8] In its oral sentencing statement, the trial court found that, due to Lowe’s
criminal history, it was “struggling” with accepting his explanations for the
offenses. (Tr. Vol. II, p. 42). The trial court also noted that Lowe had planned
the burglary and that those who plan burglaries are aware that, if they are
caught, they will go to prison. The trial court explained as follows:
That’s kind of where I’m at and you got caught, and you tried to
run and now is the date of sentencing and it’s hard to look at
those cases and say well probation is appropriate or let’s suspend
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the sentence and because you knew exactly what you’re getting
into unfortunately. When this all occurred. 2
(Tr. Vol. II, p. 44).
[9] The trial court found as aggravating circumstances Lowe’s criminal history and
his recent violation of parole. The trial court found Lowe’s guilty plea to be
“significant” as a mitigator. (Tr. Vol. II, p. 45). The trial court also found
Lowe’s mental health to be a mitigating circumstance but that it “may have
played some part of this, not all of it. You knew what you were doing.” (Tr.
Vol. II, p. 45). The trial court stated, “I believe the aggravators outweigh the
mitigating factors” and accepted the sentencing recommendations contained in
the PSI. (Tr. Vol. II, p. 45). The trial court sentenced Lowe to five years for
the attempted burglary and enhanced that sentence by two years for being an
habitual offender. The trial court sentenced Lowe to two years for resisting law
enforcement and ordered Lowe to serve all sentences consecutively, for an
aggregate sentence of nine years. The trial court also suspended two years to
probation. Prior to concluding the hearing, the trial court noted that the
premeditated nature of the crime and Lowe’s apparent targeting of a
“vulnerable” business community required serious repercussions and merited
the sentence imposed. (Tr. Vol. II, p. 46). In its written sentencing statement,
2
These statements are attributed to Lowe in the transcript. However, it is evident from the context of the
remarks that it is the trial court making them, not “the Defendant”. (Tr. Vol. II, p. 44).
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the trial court imposed the same sentence but found that the “mitigating factors
outweigh the aggravating factors.” (Appellant’s App. Vol. II, p. 18).
[10] Lowe now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Lowe contends that the trial court erred when it imposed enhanced, consecutive
sentences after finding in its written sentencing statement that the mitigating
circumstances outweighed the aggravating circumstances. However, Lowe also
acknowledges that the trial court found in its oral sentencing statement that the
aggravators outweighed the mitigators. As a general rule, we review a trial
court’s imposition of sentence only 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). A trial court may abuse its discretion by entering a sentencing statement
that explains the imposition of the sentence with reasons that are not supported
by the record or by giving reasons that are improper as a matter of law. Id. at
490-91. When a trial court issues conflicting sentencing statements, “[r]ather
than presuming the superior accuracy of the oral statement, we examine it
alongside the written sentencing statement to assess the conclusions of the trial
court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). If the two statements
truly conflict, the court may credit the statement that accurately pronounces the
sentence, or it may remand for resentencing. Id.[12] Lowe urges us that remand is necessary because “if the trial court found that
the mitigating factors outweighed the aggravating factors, then the imposition
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of enhanced sentences would be highly inappropriate.” (Appellant’s Br. p. 8).
Lowe offers a similar argument regarding the trial court’s imposition of
consecutive sentences. However, Lowe does not develop any argument that the
mitigating circumstances actually outweighed the aggravating ones, and his
argument ignores that we have the option of assessing the conflicting statements
and crediting the one which we find accurately pronounces the sentence.
McElroy, 865 N.E.2d at 589.
[13] Here, the trial court imposed identical sentences in its oral and written
sentencing statements. Our examination of both statements leads us to
conclude that the trial court’s oral statement accurately pronounced the
sentence. In its oral sentencing statement, the trial court found two aggravating
circumstances, namely Lowe’s criminal history and his recent parole violation,
and it stated that his premeditation and selection of a “vulnerable” victim
merited the sentence imposed. (Tr. Vol. II, p. 46). While the trial court found
Lowe’s guilty plea to be significant, it found his mental illness to be less so
because, while it may have played a role, he was still aware of his conduct. In
addition, the trial court adopted the sentencing recommendations of the
probation department’s investigator, who found no mitigating circumstances,
which also leads us to conclude that the trial court did not accord overriding
weight to the mitigators it found. In short, we find that the trial court’s
inconsistent statements regarding the mitigating and aggravating circumstances
were merely an oversight or a clerical error and that its intent to impose
enhanced, consecutive sentences is sufficiently clear in the record that remand is
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not necessary. See Dowell v. State, 873 N.E.2d 59, 60-61 (Ind. 2007) (applying
McElroy and resolving conflicting sentencing statements after a comparison
rather than remanding for resentencing).
CONCLUSION
[14] Based on the foregoing, we conclude that the trial court intended to find that
the aggravators outweighed the mitigators for sentencing and that remand is not
necessary to clarify the trial court’s reasons for the imposition of its sentence.
[15] Affirmed.
[16] Vaidik, C. J. and Bradford, J. concur
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