Todd Crane v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jul 31 2015, 10:02 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Todd Crane, July 31, 2015
Appellant-Defendant, Court of Appeals Case No.
15A04-1501-CR-9
v. Appeal from the Dearborn Superior
Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff McLaughlin, Judge
Cause No. 15D02-1403-FD-105
Najam, Judge.
Statement of the Case
[1] Todd Crane appeals his sentence after he pleaded guilty, without the benefit of
a plea bargain, to a number of charges. Crane presents one issue for our review,
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namely, whether his sentence is inappropriate in light of the nature of the
offenses and his character. We affirm Crane’s sentence, but we vacate his
conviction for criminal mischief, as a Class A misdemeanor, because that
conviction violates the prohibition against double jeopardy. We, therefore,
remand to the trial court with instructions to correct its orders.
Facts and Procedural History
[2] After a “two-day paint[-]huffing bender,” on March 1, 2014, Crane was evicted
from a local homeless shelter. Appellant’s Br. at 7. With nowhere else to go,
Crane went to an apartment belonging to his mother, Nancy Smith. Crane left
after about thirty minutes but returned later that night at about 9:15 p.m. When
Crane returned, he was high on inhalants, namely spray paint. Smith fed Crane
dinner, but, after dinner, Crane refused to leave. Instead, Crane went to the
back of Smith’s apartment where his niece—Smith’s granddaughter, R.R.—was
asleep and awoke her by shaking her violently. Smith took R.R. from Crane,
and Smith fled her apartment with R.R. to a neighbor’s apartment where Smith
called the police. R.R. suffered head pain as a result of Crane shaking her.
[3] Before the police arrived, Crane ransacked Smith’s apartment and, in the
process, destroyed “multiple DVR[ boxes], [a] desktop computer, [a] laptop
computer, eyeglasses, [a] flat screen television, [a] bathroom mirror, [a] cellular
telephone, [and a] digital camera.” Tr. at 20. The damage to Smith’s property
exceeded $2,500.
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[4] Officers with the Lawrenceburg Police Department responded to Smith’s call.
When Crane opened the door for the officers, the officers attempted to arrest
him, but Crane fought the officers and yelled obscenities at them. After several
minutes and “multiple Taser applications,” the officers managed to handcuff
Crane and place him in the back of a police car. Appellant’s App. at 6. Once in
the police car, Crane proceeded to yell and “spit all over the back of [the] car.”
Id.
[5] On March 3, 2014, the State charged Crane with (1) battery, as a Class D
felony; (2) criminal mischief, as a Class D felony; (3) resisting law enforcement,
as a Class A misdemeanor; (4) criminal trespass, as Class A misdemeanor; (5)
criminal mischief, as a Class A misdemeanor; and (6) inhaling toxic vapors, a
Class B misdemeanor. On November 5, 2014, Crane pleaded guilty to all
charges without the benefit of a plea agreement. At the plea hearing, the State
informed the trial court that “the Class A, Criminal Mischief [charge] . . . is
duplicative of” the Class D felony criminal mischief charge. Tr. at 22. The trial
court stated it would address this issue at Crane’s sentencing hearing.
[6] The trial court held Crane’s sentencing hearing on December 5, 2014, at the
conclusion of which the court sentenced Crane to three years for the battery
conviction; one-and-one-half years for the Class D felony criminal mischief
conviction; and one year each for the following Class A misdemeanor
convictions: resisting law enforcement, criminal trespass, and criminal
mischief. The trial court ordered the two felony sentences to be served
consecutively and the three misdemeanor convictions to be served concurrent
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with the two felony sentences for an aggregate sentence of four-and-one-half
years in the Indiana Department of Correction. The court dismissed the
inhaling toxic vapors charge but did not explain why it did so.
[7] In sentencing Crane, the trial court noted that Crane had pleaded guilty to the
charges against him and that Crane had benefitted from substance abuse
treatment while awaiting sentencing. However, the court found that these
considerations were outweighed by Crane’s criminal history. As Crane’s
presentence investigation report details, Crane “has been charged with forty[-]
nine [offenses], which include alcohol and drug offenses, theft, [d]riving while
suspended, Criminal Trespass, Disorderly Conduct, Resisting Arrest, Criminal
Littering, Assault, and Battery,” and Crane had received—and had violated the
terms of—probation several times in the past. Appellant’s App. at 123. The
trial court observed that, despite Crane’s criminal history, Crane “got either no
time in jail or a few days in jail or a couple months in jail.” Tr. at 42. Thus, the
court found:
I think based on [your criminal history], you’re not really a
candidate for probation. I don’t think probation has the ability to
monitor you . . . , and I think it’s also a safety factor. . . . [S]o
what I am going to do based on that[] is find that you would be
best rehabilitated through incarceration.
Id. at 43. This appeal ensued.
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Discussion and Decision
[8] Crane contends that his sentence is inappropriate in light of the nature of his
offenses and his character. Article 7, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (alteration in original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in
light of the nature of his offenses and his character. Ind. Appellate Rule 7(B);
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the
trial court’s recognition or non-recognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was inappropriate.
Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a
defendant must persuade the appellate court that his or her sentence has met
th[e] inappropriateness standard of review.” Roush, 875 N.E.2d at 812(alteration original).
[9] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
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severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[10] With respect to the nature of his offenses, Crane asserts that his sentence is
inappropriate because Crane’s “motive” to commit his crimes, intoxication,
does not evince “the depravity of someone who commits criminal acts for
vengeance or personal or financial gain.” Appellant’s Br. at 7. But Crane’s
intoxicated state does not mitigate the gravity of his numerous crimes, which
supports his four-and-one-half-year sentence. While high on inhalants, Crane
violently shook his eight-year-old niece, ravaged his mother’s apartment, fought
responding officers, and spit all over a police car. We cannot say that Crane’s
sentence is inappropriate in light of the nature of his offenses.
[11] Regarding his character, Crane asserts that his sentence is inappropriate
because he is a drug addict who “is capable of redemption and rehabilitation,”
which he argues cannot be achieved in prison. Id. But the trial court found
otherwise, and we cannot say that it erred when it did so. As the trial court
noted, Crane has a significant criminal history, and he has violated the terms of
his probation on a number of occasions. Despite multiple drug offenses in the
past, Crane has not treated his addiction. Thus, the trial court did not err when
it concluded that Crane “would be best rehabilitated through incarceration.”
Tr. at 43. Crane’s character supports his sentence.
[12] Although we affirm Crane’s sentence, we vacate his conviction for criminal
mischief, as a Class A misdemeanor. See Richardson v. State, 717 N.E.2d 32, 54
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(Ind. 1999). Here, Crane was convicted of and sentenced for criminal mischief,
as a Class D felony, and the State conceded to the trial court that the Class A
misdemeanor charge was a lesser-included charge to the Class D felony. It is
well settled that a defendant cannot be convicted of both a greater and lesser-
included offense. See Davenport v. State, 734 N.E.2d 622, 624 (Ind. Ct. App.
2000), trans. denied; see also Ind. Code § 35-43-1-2. “Where a defendant is found
guilty of both the greater offense and the lesser-included offense the . . . proper
procedure is to vacate the conviction of the included offense.” Taflinger v. State,
698 N.E.2d 325, 327 (Ind. Ct. App. 1998), trans. denied. Therefore, we vacate
Crane’s conviction for criminal mischief, as a Class A misdemeanor, but we
note that, because the trial court ordered Crane’s sentences for his misdemeanor
convictions to be served concurrent with those for his felony convictions, his
aggregate four-and-one-half-year sentence is undisturbed by this error. We
remand to the trial court with instructions to correct its orders.
[13] Affirmed and remanded with instructions.
Kirsch, J., and Barnes, J., concur.
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