Joseph Pohl v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2015, 10:59 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 ATTORNEYS FOR APPELLEE
Mark A. Delgado Gregory F. Zoeller
Monticello, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Pohl, January 30, 2015
Appellant-Defendant, Court of Appeals Cause No.
38A02-1404-CR-223
v. Appeal from the Jay Circuit Court
State of Indiana,
Appellee-Plaintiff
Pyle, Judge
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Statement of the Case
[1] Joseph Pohl (“Pohl”) appeals his sentence, after a jury trial, for his two
convictions of Class B felony burglary1 and two convictions of Class D felony
theft.2 On appeal, Pohl claims that the trial court abused its discretion by
sentencing him to consecutive sentences that exceed what is allowed for as a
single episode of criminal conduct. In addition, Pohl asserts that the trial
court’s sentencing statement is inadequate and that it ignored his youthful age
as a mitigating circumstance. He also argues that his sentence is inappropriate.
Concluding that the trial court did not abuse its discretion in sentencing Pohl,
and that Pohl waived his argument under Indiana Appellate Rule 7(B), we
affirm his sentence.
[2] We affirm.
Issues
[3] 1. Whether the trial court abused its discretion in sentencing Pohl.
[4] 2. Whether Pohl’s sentence is inappropriate under Indiana Appellate Rule 7(B).
1
IND. CODE § 35-43-2-1. We note that, effective July 1, 2014, a new version of this burglary statute was
enacted and that Class B felony burglary is now a Level 4 felony. Because Pohl committed his crimes in
2013, we will apply the statute in effect at that time.
2
IND. CODE § 35-43-4-2. Again, effective July 1, 2014, a new version of this theft statute was enacted, and
Class D felony theft is now a Class A misdemeanor. We will apply the statute in effect at the time of Pohl’s
crimes.
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Facts
[5] Pohl lived in Dunkirk next door to Barbara Irelan (“Irelan”). Irelan
occasionally paid Pohl to cut her grass, trim her hedges, and shovel her snow.
On June 6, 2013, Irelan went to Indianapolis for an Elk’s convention. Irelan
locked the doors to her home when she left, but she left a window open on the
front of her house.
[6] On the day that Irelan left for Indianapolis, Pohl and his girlfriend, Kassandra
Workman (“Workman”), were sitting on his back porch. Pohl decided to try
and break into Irelan’s car, but it was locked. Pohl then remembered that Irelan
was out of town, and he told Workman that he was going to try to break into
Irelan’s house. Pohl did break into the house and stole a bottle of vodka.
[7] The next evening, Workman was at a friend’s house, and Pohl came over with
the bottle of vodka. He said that he had taken the vodka from Irelan’s house,
which he had entered through the front window. After drinking the vodka,
Pohl and Workman decided to break into Irelan’s house “[j]ust to look around,
[and] see what [they] could get.” (Tr. 61). They opened Irelan’s front door,
went inside, and took coins and a handgun.
[8] Pohl and Workman took the items to Alex Blankenship’s (“Blankenship”)
house. They asked Blankenship if he could help them sell the gun.
Blankenship took the gun and sold it to his step-father, Larry Kelly, for $50.
Pohl and Workman then took the coins to a machine at Wal-Mart to exchange
for cash. They used the cash to buy narcotics.
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[9] When Irelan returned to her home, she found the front door ajar. The window
screen had “a ripple in it showing that [] something had happened to it” (Tr. 23-
24). She noted that a bottle of vodka, loose and rolled coins, a handgun, tie
tacks, and jewelry were missing.
[10] On August 2, 2013, the State charged Pohl with two counts of burglary and two
counts of theft. A jury trial was held on February 3, 2014, and the jury found
Pohl guilty as charged. At the sentencing hearing, the trial court stated the
following reasons for imposing its sentence:
Alright [sic] the court is required to make a reasonably detailed
sentencing statement to explain to you, those persons present and
perhaps a reviewing court . . . the basis for the sentence that I’m about
to impose.
*****
As far as aggravating circumstances, the court finds as follows, you
have a healthy history of criminal activity. You have a juvenile
adjudication. You have recently violated conditions of probation.
You have recently violated conditions of parole. While awaiting trial
in this matter, you violated jail rules resulting in good time or loss of
good time credit of thirty days. Furthermore, the victim of your
offense was over 65 years of age. Each of those are aggravating
circumstances. As far as mitigation, the court finds that your
specialized [safety] issues require some consideration. The quote,
quite honestly you-I am not going to find that imprisonment is going
to result in undue hardship to you. You have been to one prison and
somehow in your mind you are now a target for everybody in the
Department of Correction. I don’t buy it. I think it’s another
unsuccessful attempt at manipulating your sentence. The aggravating
circumstances in your particular case far outweigh the mitigating
circumstances[.]
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[11] (Sent. Tr. 24). The trial court sentenced Pohl to fifteen (15) years for each
burglary conviction and thirty (30) months on each theft conviction. The court
ordered Pohl to serve the burglary convictions consecutive to one another, but
the theft convictions were to be served concurrently with each other and the
burglary convictions. The total sentence imposed was an executed term of
thirty (30) years in the Department of Correction. Pohl now appeals.
Decision
[12] On appeal, Pohl argues that the trial court abused its discretion in three ways.
First, because the crimes were a single episode of criminal conduct, he claims
that the consecutive sentence imposed by the trial court exceeded the amount
allowed by statute. In addition, he claims that the trial court’s sentencing
statement is inadequate in that “it merely states aggravating factors and a
mitigating fact followed by conjecture.” (Pohl’s Br. 6). Finally, he asserts that
the trial court abused its discretion by failing to consider his youthful age as a
mitigating circumstance. Furthermore, Pohl argues that his sentence is
inappropriate. We address each of his claims in turn.
1. Abuse of Discretion
a. Single Episode of Criminal Conduct
[13] We first address Pohl’s claim regarding his consecutive sentences. Generally, a
trial court cannot impose consecutive sentences without express statutory
authority. Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014). A sentence
that is contrary to or in violation of a statute is illegal because it is without
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statutory authorization. Id. We review a claim of sentencing error for an abuse
of discretion, and reversal is only warranted when there has been a manifest
abuse of discretion. Id.[14] When a trial court orders a defendant to serve consecutive sentences for
multiple felony convictions, the trial court must comply with INDIANA CODE §
35-50-1-2(c), which provides the following:
. . . , except for crimes of violence, the total of the consecutive terms of
imprisonment, . . . to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not
exceed the advisory sentence for a felony which is one (1) class higher
than the most serious of the felonies for which the person has been
convicted.
[15] (emphasis added). The State argues that pursuant to IND. CODE § 35-50-1-
2(a), Pohl’s burglary convictions are crimes of violence. Burglary as a class B
felony is among the listed offenses considered a crime of violence. IND.
CODE § 35-50-1-2(a)(13). Thus, even if the burglaries were a single episode of
criminal conduct, the limit on the term of imprisonment, by statute, would not
apply. Therefore, the trial court did not abuse its discretion in sentencing Pohl
to consecutive terms.
b. Inadequate Sentencing Statement & Mitigating Circumstances
[16] Pohl argues that the trial court further abused its discretion by making an
inadequate sentencing statement and overlooking his youthful age as a
mitigating circumstance.
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[17] Notwithstanding the authority afforded to appellate courts by Indiana Appellate
Rule 7(B), “sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v.
State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds 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.” K.S. v.
State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637,
640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a
defendant by: (1) failing to enter a sentencing statement; (2) entering a
sentencing statement that explains reasons for imposing the sentence but the
record does not support the reasons; (3) omitting reasons that are clearly
supported by the record and advanced for consideration; or (4) imposing a
sentence for reasons that are improper as a matter of law. Anglemyer, 868
N.E.2d at 490.
[18] In this case, Pohl essentially argues that the trial court failed to properly
“weigh” the aggravating and mitigating circumstances. However, “[b]ecause
the trial court no longer has any obligation to ‘weigh’ aggravating and
mitigating factors against each other when imposing a sentence, unlike the pre-
Blakely statutory regime, a trial court cannot now be said to have abused its
discretion in failing to ‘properly weigh’ such factors.” Id. at 491 (quoting
Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000)). “Where a trial court imposes
sentence for a felony offense it is required to issue a sentencing statement that
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includes a reasonably detailed recitation of the trial court’s reasons for the
sentence imposed.” Anglemyer, 868 N.E.2d at 481. In order for an appellate
court to perform a meaningful review of a trial court’s sentencing statement, we
must be informed of the trial court’s reason for imposing the sentence, and this
necessarily requires a statement of fact, in some detail which, are peculiar to the
particular defendant and the crime, as opposed to general impressions or
conclusions. Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2007).
[19] Here, the trial court outlined the aggravating and mitigating circumstances
particular to Pohl and his crimes. The trial court took note of his significant
criminal history and the fact that he had victimized an elderly neighbor. In
addition, the trial court took into consideration Pohl’s alleged safety concerns if
he returned to the Department of Correction. As a result, the trial court did not
abuse its discretion because the sentencing statement and the record before us
are sufficient to conduct a meaningful review.
[20] Next, Pohl argues that the trial court erroneously failed to consider his young
age as a mitigating factor. However, Pohl did not raise his age as a mitigator
during the sentencing hearing. A trial court does not abuse its discretion in
failing to consider a mitigating factor that was not raised at sentencing.
Anglemyer, 868 N.E. 2d at 492 (citing Georgopulos v. State, 735 N.E2d 1138, 1145
(Ind. 2000)).3 “[I]f the defendant fails to advance a mitigating circumstance at
3
On rehearing, the Supreme Court clarified that “a defendant who pleads guilty does not forfeit the
opportunity to claim on appeal that the trial court should have considered his guilty plea a mitigating
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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.” Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App.
2006). Accordingly, he is precluded from doing so here.
2. Inappropriate Sentence
[21] Finally, Pohl argues that his sentence is inappropriate. Rule 7(B) of the Indiana
Rules of Appellate Procedure provides that “[t]he Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” However, Pohl makes no argument
showing how the trial court’s sentence is inappropriate based upon this
standard. In addition, our supreme court held in Anglemyer that abuse of
discretion and inappropriate sentence claims are to be analyzed separately.
Anglemyer, 868 N.E.2d at 491; see also King v. State, 894 N.E.2d 265, 267 (Ind.
Ct. App. 2008) (observing that “an inappropriate sentence analysis does not
involve an argument that the trial court abused its discretion in sentencing the
defendant”). Pohl cited Anglemyer in support of his inappropriate sentence
claim. Yet, he still failed to separately argue his abuse of discretion and 7(B)
circumstance even though the defendant failed to assert this claim at sentencing.” Anglemyer, 875 N.E.2d at
219.
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claims.4 Accordingly, Pohl’s argument that his sentence is inappropriate is
waived. See Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008); Ind.
Appellate Rule 46(A)(8)(a); see also Smith v. State, 822 N.E.2d 193, 202-203 (Ind.
Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where
the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”), trans. denied.
[22] Affirmed.
[23] Najam, J., and Bailey, J., concur.
4
Pohl also cited our supreme court’s decision in Reid v. State, 876 N.E.2d 1114, where the Court, pursuant to
Indiana Appellate Rule 7(B), revised a maximum sentence on a conspiracy to commit murder conviction.
Nevertheless, Pohl still made no argument regarding the nature of this offense and his character.
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