Randall E. Reynolds, II v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:06 am
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 ATTORNEY FOR APPELLEE
Donald C. Swanson, Jr. Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randall E. Reynolds, II, February 10, 2015
Appellant-Defendant, Court of Appeals Case No. 02A03-
1408-CR-271
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Judge
Appellee-Plaintiff.
Cause No. 02D04-1405-FD-503
Brown, Judge.
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[1] Randall E. Reynolds, II, appeals his sentence for invasion of privacy as a class
D felony. Reynolds raises one issue which we revise and restate as:
I. Whether the trial court abused its discretion in sentencing him; and
II. Whether his sentence is inappropriate in light of the nature of the offense
and the character of the offender.
We affirm.
Facts and Procedural History
[2] In 2013, Reynolds, who was born in 1984, and Kathryn Gill began dating, and
they dated for approximately six months. On February 26, 2014, Reynolds was
served with a protective order. Between February 26, and April 20, 2014,
Reynolds knowingly and intentionally violated the protective order in Allen
County, Indiana. Specifically, Reynolds made contact with Gill via her cell
phone and text messaging on numerous occasions. Gill filed seven different
police reports in reference to the texts, calls, and items left on her porch.
Reynolds admitted to Fort Wayne Police Detective Jason Snyder that he had
called Gill and sent her text messages, that he had been to her house on at least
two occasions, and that he had left a note and some flowers on her front porch.
Detective Snyder asked Reynolds why he had contacted Gill, and Reynolds
stated: “I guess I[’]m an idiot.” Appellant’s Appendix at 29. Reynolds had
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previously been convicted of invasion of privacy under cause number 17D01-
0303-CM-212 on March 10, 2003.
[3] On May 6, 2014, the State charged Reynolds with invasion of privacy as a class
D felony. On June 25, 2014, Reynolds pled guilty as charged.
[4] On July 24, 2014, the court held a sentencing hearing. At the hearing,
Reynolds’s counsel stated that he concurred with the recommendation in the
presentence investigation report (“PSI”) that Reynolds receive the advisory
sentence of one and one-half years with 183 days executed and one year of
probation. Reynolds’s counsel argued that mitigating circumstances included
Reynolds’s age, he “had a relationship with this woman and he continued to
have a relationship in violation of the Restraining Order,” there was no
violence toward the victim, he obtained his GED in 2010, he was employed up
until his incarceration, and he pled guilty. Sentencing Transcript at 6.
[5] Gill testified that her world has “changed dramatically,” that she stays locked
inside unless she is with her mother, that she now carries mace, that she “had to
completely shut off . . . from the world,” and that her “total life was turned
inside out and upside down.” Id. at 8. She also stated that she was “completely
fearful of” Reynolds and that “[i]f he won’t act, he’ll manipulate anyone to do it
for him.” Id. at 9. Nancy Brown, Gill’s mother, testified that Reynolds began
threatening Gill and her children and that “[i]nitially it wasn’t as if he was
gonna do anything, but he knew somebody that was going to.” Id. at 12. She
also testified that Reynolds would text Gill and say that he saw her at different
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places, that he was always accurate, that it “was just really creepy,” and that
she could not figure out how he would know Gill’s location because she did not
believe that Reynolds had a car. Id. at 14.
[6] The prosecutor asked for two and one-half years executed. The prosecutor
stated that the case was “really solid” and that Reynolds’s guilty plea was more
than acceptance of responsibility, it was “acceptance of reality,” and asked that
it be given “very little weight.” Id. at 17.
[7] The court found Reynolds’s guilty plea as a mitigator and stated that Reynolds
pled guilty “and he’s taken acceptance of responsibility and not even had the,
um, I guess privilege of having a plea agreement.” Id. at 20. The court did not
give the guilty plea “a lot of weight” because he was caught by an officer. Id.
The court stated that it heard no remorse from Reynolds, but acknowledged
that it heard nothing from Reynolds which is his right. The court stated: “I
have taken into consideration, um, the advocacy of [Reynolds’s trial counsel] in
this case in the sense of, um, the type of case that it is and – and you are right,
nobody was hurt, yet.” Id. at 21. The court observed that Reynolds knows how
the protective orders work and “has chosen to show complete disdain for the
system and the Court Orders.” Id. at 21-22. The court acknowledged
Reynolds’s criminal history including ten misdemeanors, and found that there
was a pattern of similar offenses that it found extremely aggravating. The court
observed that prior attempts of rehabilitation failed and that Reynolds was at
high risk to reoffend, and sentenced him to two years and 183 days with one
year executed.
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Discussion
I.
[8] The first issue is whether the trial court abused its discretion in sentencing
Reynolds. We review the sentence 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). An abuse of discretion occurs if the decision 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. A trial court
abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)
enters “a sentencing statement that explains reasons for imposing a sentence –
including a finding of aggravating and mitigating factors if any – but the record
does not support the reasons;” (3) enters a sentencing statement that “omits
reasons that are clearly supported by the record and advanced for
consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490-491. If the trial court has abused its discretion, we will remand for
resentencing “if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491. The relative weight or value assignable to
reasons properly found, or those which should have been found, is not subject
to review for abuse of discretion. Id.
[9] The determination of mitigating circumstances is within the discretion of the
trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.
denied. The trial court is not obligated to accept the defendant’s argument as to
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what constitutes a mitigating factor, and a trial court is not required to give the
same weight to proffered mitigating factors as does a defendant. Id. An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
If the trial court does not find the existence of a mitigating factor after it has
been argued by counsel, the trial court is not obligated to explain why it has
found that the factor does not exist. Id.
[10] Reynolds argues that the trial court abused its discretion when it failed to
properly identify his GED, completion of substance abuse treatment through
the Salvation Army, employment prior to his incarceration, the fact that he pled
guilty fairly quickly, and the fact that he demonstrated remorse to the author of
the PSI as mitigators.
[11] With respect to his GED, we observe that Reynolds completed his GED in
2010, and yet since 2011 he has been sentenced for five misdemeanors. We
cannot say that the trial court abused its discretion in failing to consider
Reynolds’s GED as a mitigator.
[12] As for the completed substance abuse treatment in 2013, Reynolds’s counsel at
one point mentioned substance abuse1 but Reynolds does not argue on appeal
1
At the sentencing hearing, Reynolds’s trial counsel stated:
After reviewing all the documents, the Court records, and interviewing my client, uh,
with respect to the mental health stipulation, uh, that of course a mental health
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and our review does not reveal that he argued that his completed substance
abuse treatment constituted a mitigator. “If the defendant does not advance a
factor to be mitigating at sentencing, this Court will presume that the factor is
not significant and the defendant is precluded from advancing it as a mitigating
circumstance for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651
(Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g
denied).
[13] With respect to employment, we have held that “[m]any people are gainfully
employed such that this would not require the trial court to note it as a
mitigating factor . . . .” Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.
2003), trans. denied. Reynolds’s trial counsel argued that Reynolds was
“employed . . . making fifteen ($15.00) dollars per hour . . . up until his
incarceration.” Sentencing Transcript at 19. The record does not contain any
evidence regarding Reynolds’s employment other than the PSI. Under
“Employment,” the PSI states: “TI Automotive, Ashley, Indiana, 2011 to 2013,
laborer, $13.00 per hour, incarcerated.” Appellant’s Appendix at 23. However,
under “Financial Situation,” Reynolds indicated that he earned an unknown
amount in 2013. Id. Further, under the risk and needs assessment, the PSI
evaluation would be a part of special conditions of probation. And I would anticipate
that that would be the case, particularly in light of the substance abuse, uh, that these, uh,
crimes suggest.
Sentencing Transcript at 18-19.
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states that the areas of highest concern regarding the risk to reoffend were
Reynolds’s education, employment and financial situation, and substance
abuse.2 The “Evaluation/Summary” of the PSI states that Reynolds “has a
GED and is unemployed.” Id. at 25. We cannot say that Reynolds has
demonstrated that the evidence of his employment is both clearly supported by
the record and significant. See Espinoza v. State, 859 N.E.2d 375, 387-388 (Ind.
Ct. App. 2006) (holding that the defendant failed to establish that the
employment evidence was both significant and clearly supported by the record
and that the trial court did not abuse its discretion by not considering
defendant’s employment history as a mitigating circumstance); Bennett v. State,
787 N.E.2d 938, 948 (Ind. Ct. App. 2003) (holding that the trial court properly
did not find that the defendant’s employment was a significant mitigating
circumstance where defendant did not present a specific work history,
performance reviews, or attendance records), trans. denied.
[14] To the extent Reynolds argues that the trial court abused its discretion by failing
to find that he pled guilty fairly quickly as a mitigator, we note that the court
found Reynolds’s guilty plea as a mitigator but did not give it “a lot of weight”
because he was caught by an officer. Id. at 20. As noted, the relative weight or
value assignable to reasons properly found, or those which should have been
2
The PSI indicates that Reynolds received his GED in 2010, that he owed approximately $50,000 in medical
debt, and that he has used alcohol, marijuana, cocaine, methamphetamine, prescription pills, Spice, acid,
ecstasy, heroin, and mushrooms.
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found, is not subject to review for abuse of discretion. Anglemyer, 868 N.E.2d at
491.
[15] As for Reynolds’s remorse, we acknowledge that the PSI indicates that he
expressed remorse. However, Reynolds does not point to the record and our
review does not reveal that Reynolds specifically argued that his remorse
constituted a mitigator. Further, the court asked Reynolds at the sentencing
hearing whether he had anything to say to the court, and Reynolds said: “No.”
Sentencing Transcript at 20. We also note that the court told Reynolds that it
would put into place another no contact order and asked him if he understood
how this works, Reynolds said yes, the court told Reynolds not to use the
phones in the Department of Correction to contact certain individuals, and then
the court said “don’t smirk at me.” Id. at 24. Under the circumstances, we
cannot say that the trial court abused its discretion.
II.
[16] The next issue is whether Reynolds’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
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[17] Reynolds argues that his crimes did not involve any violence, that he admitted
his wrongdoing, and that his crime does not indicate that he is one of the worst
offenders for whom maximum sentences are appropriate. He argues that he
obtained his GED, has one dependent child, was employed at the time of his
incarceration, and completed substance abuse treatment. He asserts that the
imposition of the minimum sentence of six months is appropriate. The State
argues that Reynolds’s sentence is not inappropriate based on his repeated and
egregious conduct, his criminal history, and his history of substance abuse.
[18] Initially, to the extent Reynolds claims that he received a maximum sentence
and that such sentences should be reserved for the worst offenders, Reynolds
did not receive a maximum sentence in this case when the court sentenced him
to two years and 183 days. See Ind. Code § 35-50-2-7 (Supp. 2013) (“A person
who commits a Class D felony shall be imprisoned for a fixed term of between
six (6) months and three (3) years, with the advisory sentence being one and
one-half (1 ½ ) years.”).3 We also observe that the court ordered that only one
year of Reynolds’s sentence be executed. See Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010) (noting that in reviewing sentences pursuant to Ind.
Appellate Rule 7(B), we may consider not only the appropriateness of the
aggregate length of the sentence, but also “whether a portion of the sentence is
3
Subsequently amended by Pub. L. No. 158-2013, § 660 (eff. July 1, 2014); Pub. L. No. 168-2014, § 117 (eff.
July 1, 2014).
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ordered suspended or otherwise crafted using any of the variety of sentencing
tools available to the trial judge”).
[19] Our review of the nature of the offense reveals that Reynolds knowingly and
intentionally violated a protective order. Specifically, Reynolds made contact
with Gill via phone and text messages on numerous occasions. Gill filed seven
different police reports in reference to the texts, calls, and items left on her
porch. Reynolds admitted to Detective Snyder that he had called Gill and sent
her text messages, that he had been to her house on at least two occasions, and
that he had left a note and some flowers on her front porch.
[20] Our review of the character of the offender reveals that Reynolds pled guilty as
charged. The PSI reveals that Reynolds has one dependent child for which he
is not ordered by a court to pay child support. The PSI indicates that Reynolds
obtained his GED in 2010 and was employed between 2011 and 2013.
According to the PSI, Reynolds denied having any mental health related
illnesses, and reported that he first tried alcohol and marijuana when he was ten
years old and used both once every other day until his present incarceration.
He reported that he first tried cocaine when he was thirteen years old and used
it every other day until 2008, used methamphetamine daily from age eighteen
until 2009, abused prescription pills daily from age twenty to twenty-eight, used
Spice daily from 2012 until 2013, and experimented with acid, ecstasy, heroin,
and mushrooms. Reynolds indicated that he completed substance abuse
treatment at the Salvation Army in 2013. The PSI indicates that he expressed
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remorse for his actions and said that “[i]t was stupid.” Appellant’s Appendix at
24.
[21] As an adult, Reynolds was convicted of invasion of privacy as a misdemeanor
in 2003. He was sentenced to 100 days with ninety days suspended and ten
days executed, and his probation was revoked. In 2004, he was convicted of
breaking and entering as a fifth degree felony in Ohio. In 2007, he was
convicted of operating while intoxicated as a misdemeanor. In 2008, Reynolds
was sentenced for battery as a class B misdemeanor and later violated his
probation. Also in 2008, he was sentenced for criminal conversion as a
misdemeanor. In 2010, he was sentenced for criminal trespass as a
misdemeanor. In 2011, he was sentenced for driving while suspended as a
misdemeanor, possession of marijuana as a misdemeanor, and public
intoxication as a misdemeanor. In 2013, he was sentenced for battery resulting
in bodily injury as a misdemeanor and child solicitation as a class A
misdemeanor resulting in his registering as a sex offender. The PSI indicates
that Reynolds’s overall risk assessment score put him in the high risk category
to reoffend.
[22] After due consideration of the trial court’s decision, we cannot say that the
sentence of two years and 183 days with one year executed imposed by the trial
court is inappropriate in light of the nature of the offense and the character of
the offender.
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Conclusion
[23] For the foregoing reasons, we affirm Reynolds’s sentence.
[24] Affirmed.
Bailey, J., and Robb, J., concur.
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