Christopher Lozier v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before any                               Mar 12 2019, 9:05 am
    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
    R. Patrick Magrath                                       Curtis T. Hill, Jr.
    Madison, Indiana                                         Attorney General of Indiana
    Monika Prekopa Talbot
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Christopher Lozier,                                      March 12, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    18A-CR-1145
    v.                                               Appeal from the Dearborn Circuit
    Court
    State of Indiana,                                        The Honorable James D,
    Appellee-Plaintiff.                                      Humphrey, Judge
    The Honorable Eugene Stewart,
    Senior Judge
    Trial Court Cause No.
    15C01-9303-CF-9
    Altice, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                  Page 1 of 21
    Case Summary
    [1]   In October 1992, Christopher Lozier, then age eighteen, and two male friends
    were involved in a robbery-turned-murder of a woman as she was making a
    night deposit at the bank after work. Lozier pled guilty to felony murder and
    Class B felony conspiracy to commit robbery and was sentenced to an aggregate
    seventy-year term of imprisonment. After being granted permission to pursue
    successive post-conviction relief in 2017, Lozier filed a petition for post-
    conviction relief, which the post-conviction court granted in May 2018,
    allowing Lozier to file this belated direct appeal of his sentence. He raises two
    issues that we restate as:
    I. Whether Blakely v Washington, 
    542 U.S. 296
     (2004) applies
    retroactively to Lozier’s case and renders his sentence
    unconstitutional; and
    II. Whether Lozier’s sentence is inappropriate in light of the
    nature of the offense and the character of the offender.
    [2]   We affirm.
    Facts & Procedural History
    [3]   In October 1992, Lozier and two friends, Daniel Widener, age seventeen, and
    Shawn Davis, age eighteen, planned a robbery. They all agreed to rob a night
    manager of the Ponderosa restaurant, where Davis had worked before recently
    getting fired. They planned to use Davis’s 22-caliber revolver to scare the
    Ponderosa employee. Over the next few days, the three of them got together at
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 2 of 21
    least twice to finalize their plans. On the night of October 25, 1992, Davis gave
    the revolver to Lozier, and Lozier and Widener walked from a Wal-Mart
    parking lot to an adjacent Star Bank. 1 Lozier placed a concrete block in the
    driveway of the bank so that anyone making a night deposit would have to exit
    his or her vehicle. Lozier and Widener, while wearing masks, crouched
    between parked cars and waited outside the bank for Vanessa Wells,
    Ponderosa’s night manager, to arrive and make the restaurant’s deposit.
    According to Lozier, he placed the revolver on the ground between him and
    Widener.
    [4]   When Wells arrived at the bank to make the deposit and got out of her car,
    Lozier and Widener appeared in masks and approached her. Wells screamed
    and ran back to her car and got inside it. Widener fired a shot at Wells through
    a cracked passenger-side window. Widener fired a second shot that penetrated
    Wells’s right hand and lodged in her neck, killing her. One or both of them
    moved her body to the floor of the back seat, where she was shot two more
    times. 2 Lozier drove the car to an area near a landfill, where they hid the car in
    some trees and disposed of coats, gloves, at least one mask, and the money bag
    into pools of water at the landfill. Lozier tossed the handgun into the Ohio
    River. Widener and Lozier returned to Widener’s home and went to sleep.
    1
    By agreement, Davis did not go to the bank.
    2
    At the sentencing hearing, Lozier and Widener each testified that it was the other who shot Wells when she
    was in the back of the car on the floor.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                 Page 3 of 21
    The proceeds from the robbery were $275.00, part of which Lozier and
    Widener spent the next day at the mall on a movie and food. Wells’s husband
    reported her missing, and, several days later, hunters discovered Wells’s body
    and her car in the landfill area.
    [5]   The men continued with their daily lives until they were questioned by police in
    March 1993. Police had received a report from an inmate and a Crime
    Stoppers tip that Lozier and Widener were involved in the robbery and murder
    of Wells.
    [6]   In September 1993, while represented by appointed attorney Gary Sorge,
    Lozier pled guilty to felony murder and conspiracy to commit robbery, for
    which he would receive a sixty-year sentence for the felony murder conviction
    and a concurrent twenty-year sentence for the conspiracy conviction. In
    October 1993, attorney Steven Bush entered an appearance for Lozier, and
    Lozier requested and was granted permission to withdraw the plea. Lozier
    entered into a new plea agreement on October 19, 1993, again pleading guilty
    to felony murder and conspiracy to commit robbery, with sentencing left to the
    court’s discretion. Meanwhile Widener pled guilty on October 12, 1993 to
    felony murder and Class B felony conspiracy to commit robbery, and Davis
    pled guilty on October 9, 1993 to Class B felony robbery and Class B felony
    conspiracy to commit robbery. Both Widener’s and Davis’s plea agreements
    left sentencing to the trial court’s discretion.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 4 of 21
    [7]   After receiving evidence over the course of several days in December 1993, the
    trial court sentenced Lozier, Davis, and Widener on January 7, 1994, later
    reduced to a written sentencing order on January 11. The court sentenced
    Lozier to forty years on the felony murder conviction, enhanced by twenty
    years, and a consecutive ten-years on the conspiracy conviction, for an
    aggregate seventy-year sentence. Lozier did not appeal. Davis received twenty
    years on the Class B felony robbery conviction and twenty years on the Class B
    felony conspiracy to commit robbery conviction, to be served consecutively.
    [8]   Widener, like Lozier, received a seventy-year sentence. However, Widener
    filed a direct appeal, arguing that his sentence was manifestly unreasonable.
    Our Supreme Court determined that valid aggravators existed but that,
    although the trial court “did take into account the youthful ages of all three
    defendants,” the trial court “failed to discuss additional mitigating
    circumstances that we find significant.” Widener v. State, 
    659 N.E.2d 529
    , 534
    (Ind. 1995) (J. Dickson, dissenting). The Supreme Court identified the
    following four mitigators: (1) Widener, age seventeen, lacked a significant
    history of criminal involvement and “had not been charged or convicted of any
    criminal acts” prior to the instant charges; (2) Widener pled guilty and saved
    judicial resources; (3) “even though evidence of remorse was rejected by the
    trial court,” Widener’s act of pleading guilty “does show that he was willing to
    accept responsibility for his actions”; and (4) although Widener “actively
    engaged in the murder and robbery,” “the plan was initiated by Lozier and
    formulated primarily by Davis[.]” 
    Id.
     A majority of the Supreme Court
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 5 of 21
    determined that the mitigating factors rendered the seventy-year sentence
    manifestly unreasonable and thus reduced his sentence to fifty years for the
    felony murder conviction to be served concurrent with his ten-year sentence on
    the conspiracy conviction.
    [9]    In 1994 and 1995, Lozier, pro se, filed multiple praecipes for appeal or post-
    conviction relief, seeking permission to pursue direct appeal or other relief to
    have his sentence reviewed and revised, but was unsuccessful in those attempts.
    In 1996, Lozier retained attorney Matt Zerbe, and, pursuant to Ind. Post-
    Conviction Rule 2(1), Lozier filed on May 8, 1996, a petition for a belated
    appeal, which, after a hearing, was denied on July 27, 1998. Lozier did not
    appeal that decision. On March 14, 2006, Lozier filed, pro se, a second P-C.R.
    2(1) petition, which was denied on July 25, 2006. Lozier did not appeal that
    denial.
    [10]   In 2009, Lozier retained attorney Ed Massey, and on November 3, 2009, Lozier
    filed a petition for post-conviction relief under P-C.R. 1 alleging sentencing
    errors, but did not raise issues of ineffective assistance of counsel. Following a
    hearing in April 2010, the post-conviction court denied his petition on March 8,
    2011, and denied his motion to correct error. Lozier did not seek appellate
    review.
    [11]   In 2013 or 2014, Lozier retained attorney Sorge. On February 14, 2014, Lozier
    filed a petition for sentence modification, which, after a hearing, was denied on
    May 30, 2014. Lozier appealed, and by unpublished decision, this court
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 6 of 21
    affirmed the trial court’s denial of Lozier’s request for modification, finding that
    the trial court did not have authority to modify because “Lozier did not have
    the approval of the prosecuting attorney as required by statute” under the
    circumstances of Lozier’s case. Lozier v. State, No. 15A01-1503-CR-105, slip op.
    at *2 (Ind. Ct. App. Nov. 20, 2015). Although the court affirmed the denial of
    Lozier’s petition for sentence modification, the Lozier court determined that
    Lozier was not foreclosed from filing a request for successive post-conviction
    relief.
    [12]   In 2017, Lozier secured representation by attorney Patrick McGrath. On
    September 14, 2017, Lozier sought permission from the Indiana Court of
    Appeals to pursue successive post-conviction relief, and to that end, he filed
    with the Court of Appeals a form for successive post-conviction relief and
    petition for post-conviction relief. On November 3, 2017, the Court of Appeals
    issued an order allowing Lozier to file the petition for post-conviction relief on
    the issue of ineffective assistance of counsel.
    [13]   On November 13, 2017, Lozier filed in the trial court his petition alleging
    ineffective assistance of counsel. At the hearing, attorneys Bush, Massey, and
    Sorge testified. On May 2, 2018, the post-conviction court issued an order
    granting Lozier’s petition for post-conviction relief. Its findings of fact and
    conclusions of law included:
    6. In January of 1994, Lozier, represented by Bush and
    following Bush’s advice, entered an open plea to the trial court,
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 7 of 21
    and was subsequently sentenced to an aggregated executed
    sentence of seventy (70) years.
    7. Following sentencing, Bush advised Lozier that he should
    “wait one year” before pursuing direct appeal and/or
    modification of his sentence.
    ****
    9. Lozier’s co-defendant, Widener, did perfect direct appeal. In
    1995, the Indiana Supreme Court revised Widener’s sentence to
    an aggregate executed sentence of fifty (50) years. The Indiana
    Supreme Court found that Widener was the shooter and Lozier
    was an accomplice. The Indiana Supreme Court found that the
    significant mitigating factors including: young age, lack of
    substantial criminal history, entry of a plea, willingness to accept
    responsibility, and the formulation of the plan by a third party,
    Davis, warranted a revised sentence to fifty (50) years. The
    Indiana Supreme Court did not revise Widener’s sentence as a
    result of inappropriate aggravators.
    10. All of the substantial mitigating circumstances cited by the
    Indiana Supreme Court would have also applied to Lozier.
    Additionally, Lozier would have had the mitigating factor of not
    being the principle whom actually fired the weapon causing
    death. It is very likely that Lozier would have received similar or
    the same revision of his sentence had his direct appeal been
    perfected.
    ****
    24. Lozier is still serving his original sentence in the Indiana
    Department of Correction[] and his anticipated out date is March
    of 2024.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 8 of 21
    25. Lozier’s co-defendant, Widener, has completed his
    sentence[] and been released from incarceration.
    ****
    2. Bush’s conduct fell below an objective standard of
    reasonableness and deprived Lozier of his Sixth Amendment
    Protection. Bush promised to secure a better sentence; counsel
    ethically and realistically cannot promise results from a trial
    court, thus, Bush’s promise was objectively unreasonable. Bush
    advised and represented Lozier through an open plea to murder
    and robbery without obtaining the court’s or prior counsel’s file
    containing all pleadings, orders and discovery; Bush’s
    representation and advice were objectively unreasonable as no
    duly qualified and careful attorney would advise or enter into an
    open plea on a murder case without obtaining all necessary
    information. Bush advised Lozier to “wait one year” before
    pursuing direct appeal or other relief; Bush’s advice was
    objectively unreasonable as waiting one year resulted in Lozier’s
    waiver of direct appeal and motion to modify. Bush promised
    Lozier he would perfect a direct appeal from any adverse ruling
    of the trial court; Bush’s failure to secure a direct appeal or seek
    court appointed assistance in doing so was objectively
    unreasonable. Each of Bush’s failures resulted in Lozier being
    deprived of Sixth Amendment protection at sentencing and in
    pursuit of his right to appeal.
    3. There is a reasonable probability that had Bush provided
    effective representation the result in Lozier’s case would have
    been different. Lozier’s co-defendant had his sentence revised by
    the Indiana Supreme Court as a result of the Court’s
    consideration of substantial mitigators which were equally
    applicable to Lozier. Had Lozier been able to pursue direct
    appeal he likely would have had his sentence reduced as well. As
    a result Widener has been released, Lozier continues to serve his
    sentence.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 9 of 21
    4. Zerbe’s conduct fell below an objective standard of
    reasonableness and deprived Lozier of his Sixth Amendment
    Protection. Zerbe promised to perfect direct appeal of any
    adverse decision of the court; Zerbe’s failure to perfect direct
    appeal or seek court appointed assistance to do so was objectively
    unreasonable and deprived Lozier of his Sixth Amendment
    protection and his right to appeal.
    5. There is a reasonable probability that had Zerbe provided
    effective representation the result in Lozier’s case would have
    been different. Lozier had made several significant efforts to
    secure belated appeal on a pro se basis prior to retaining Zerbe.
    Lozier only failed to perfect direct appeal earlier due to the
    ineffective advice of Bush. The Indiana Courts of review and
    trial courts do not elevate form over substance and prefer to
    resolve cases on the merits. Lozier likely would have secured the
    right to belated appeal on direct [] appeal of the denial of his
    P[CR]2 request.
    6. Massey’s conduct fell below an objective standard of
    reasonableness and deprived Lozier of his Sixth Amendment
    Protection. Massey pursued PCR relief on the grounds of: 1.) the
    jury did not determine the aggravator, 2.) Lozier was present but
    did not commit the murder, 3.) Widener’s sentence was revised
    due to the improper aggravators. Massey’s basis for PCR was
    without any support in law or fact and was an objectively
    unreasonable PCR Petition. Under Indiana Law, the jury was
    not required to determine aggravators on an open plea, Lozier’s
    felony murder conviction did not require proof that he personally
    committed the murder, and the co-defendant’s sentence was no[t]
    revised due to inappropriate aggravators. Massey’s petition was
    further objectively unreasonable in that he failed to address
    known past ineffective assistance of counsel and he failed to
    address the substantial mitigating factors which resulted in the
    revision of the co-defendant’s sentence. Massey’s conduct
    further fell below ‘the objectively reasonable standard by failing
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 10 of 21
    to perfect direct appeal or seek court appointed assistance in
    doing so on Lozier’s behalf. Lozier was deprived of his Sixth
    Amendment protection and right to appeal.
    7. There is a reasonable probability that had Massey provided
    effective representation the result in Lozier’s case would have
    been different. Lozier had two prior instances of ineffective
    assistance of counsel and a significant likelihood of success on
    that issue. Had Massey presented those issues and/or perfected
    appeal from an adverse ruling on those issue[s], Lozier would
    have likely received relief.
    Appellant’s Appendix Vol. 7 at 223-229. The post-conviction court “granted
    [Lozier] the right to pursue belated direct appeal of his sentence.” Id. at 230.
    Lozier now appeals.
    Discussion & Decision
    1. Blakely
    [14]   The trial court imposed forty years for felony murder, enhanced by twenty
    years, 3 and, in support of the enhancement, the trial court found the following
    aggravators:
    a. The Court finds that the manner in which the crime was
    committed was peculiarly heinous, cold blooded and callous in
    that the defendant shot at the victim after she had been
    3
    At the time, the presumptive sentence for felony murder was forty years, to which no more than twenty
    years could be added for aggravating circumstances and not more than twenty years subtracted for mitigating
    circumstances. 
    Ind. Code § 35-50-2-3
    .
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                Page 11 of 21
    immobilized by the co-defendant, Widener; 4 That the bizarre
    disposition of the body by throwing it in the back floorboards of
    the car, stuffing the legs in the car and firing at it again, taking it
    to the city dump and leaving it in the car abandoned in a marshy
    wooded area, is offensive to human decency;
    b. The defendant exhibited a surprising lack of remorse or
    concern exhibited by the calculated and careful disposition of the
    gun, the bullets, the mask and the bank bag immediately after the
    body had been abandoned in the Lawrenceburg city dump; and
    further considering the events of the next day, within a few hours
    of the killing, which involved a trip to the shopping center, a
    movie and other recreational and play activities with the
    proceeds of the robbery display a callous lack of remorse which
    shocks and offends the human conscience;
    c. That defendant and co-defendant, Widener, acted in concert
    in the robbery and the killing;
    d. That the imposition of any reduced or suspended sentence
    would depreciate the seriousness of this crime;
    e. That the defendant has an extensive criminal history of
    increasing severity;
    f. That efforts having been previously made to reform the
    defendant have failed, and the defendant is in need of
    4
    We note that, although the court’s written sentencing order indicates that Lozier fired the shots at Wells
    when she was on the floor in the back seat of the car, the trial court at the sentencing hearing told Lozier, “It
    doesn’t matter who fired those other shots into the victim after she was . . . in the back. What you did, you
    did together. . . . I do not have to decide who did that when it came to the second shots.” Supplemental
    Record of Proceedings at 11.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                      Page 12 of 21
    correctional treatment that can best be provided by a lengthy
    commitment to a penal facility.
    Appellant’s Appendix Vol. 3 at 163. The trial court’s reasons for ordering the ten-
    year sentence for the Class B felony conspiracy to commit robbery conviction to
    be served consecutively included some of the above-listed aggravators, plus the
    fact that “[a] human being met her death as the result of the conspiracy.” Id. at
    164. In this belated appeal, Lozier asserts that “none of the facts used as
    aggravators by the trial court were presented for consideration [to] the jury” and
    that his sentence is unconstitutional under Blakely. Appellant’s Brief at 22. As
    explained below, however, we find that Blakely does not apply here.
    [15]   On June 24, 2004, the United States Supreme Court decided Blakely, which
    held: “‘Other than the fact of a prior conviction, any fact that increases the
    penalty for a crime beyond the prescribed statutory maximum must be
    submitted to a jury, and proved beyond a reasonable doubt.’” Blakely v.
    Washington, 
    542 U.S. 296
    , 301 (2004) (quoting Apprendi v. New Jersey, 
    530 U.S. 466
    , 490 (2000)). Under Blakely a trial court may not enhance a sentence based
    on additional facts, unless those facts are either (1) a prior conviction; (2) facts
    found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant;
    or (4) facts found by the sentencing judge after the defendant has waived
    Apprendi rights and consented to judicial factfinding. Gutermuth v. State, 
    868 N.E.2d 427
    , 431 (Ind. 2007).
    [16]   In response to Blakely, our Supreme Court in Smylie v. State, 
    823 N.E.2d 679
    ,
    686-87 (Ind. 2005), cert. denied, 
    546 U.S. 976
     (2005), held that Indiana’s pre-
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 13 of 21
    2005 sentencing scheme violated the Sixth Amendment because it provided for
    an enhanced sentence based on facts neither found by a jury nor admitted by
    the defendant. 5 In addressing the question of Blakely’s applicability to pre-
    Blakely sentences, the Smylie Court recognized the rule from Griffith v. Kentucky,
    
    479 U.S. 314
    , 328 (1987) providing that “a new rule for the conduct of criminal
    prosecutions is to be applied retroactively to all cases, state or federal, pending
    on direct review or not yet final.” (Emphasis added). Smylie determined that
    Blakely constituted a “new rule” for purposes of retroactivity and held that
    Blakely would be applied “retroactively to all cases on direct review at the time
    Blakely was announced.” Smylie, 823 N.E.2d at 690-91. Relying on this
    principle, Lozier maintains that his sentence “is being challenged on ‘direct
    review’” and “revision of his sentence should be mandatory.” Id. at 23. We
    cannot agree.
    [17]   While Smylie directed that Blakely would be applied retroactively to all cases
    “on direct review” at the time Blakely was announced, Smylie did not consider
    whether an unappealed sentence is “not yet final” based on the potential
    availability of a belated appeal. Our Supreme Court expressly did so, however,
    in Gutermuth, where the Court addressed whether Blakely applies in belated
    appeals under P-C.R. 2. The Gutermuth Court clarified that a belated appeal “is
    treated as though it was filed within the time period for a timely appeal” and “is
    5
    Shortly after Smylie, Indiana’s General Assembly adopted a new sentencing scheme in April 2005
    providing for advisory sentences and allowing a trial court to impose any sentence that is authorized by
    statute regardless of the presence or absence of aggravating or mitigating circumstances.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                  Page 14 of 21
    subject to the law that would have governed a timely appeal.” 868 N.E.2d at
    433. That is, “parties to a belated appeal should not receive a different result
    because the new law has been handed down that would not have been available
    if a timely appeal had been taken.” Id. at 434. The Gutermuth Court held that
    “a defendant’s case becomes ‘final’ for purposes of retroactivity when the time
    for filing a timely direct appeal has expired.” Id. at 435. Applying that
    principle, the Court held that “Blakely is not retroactive for Post-Conviction
    Rule 2 belated appeals because such appeals are neither ‘pending on direct
    review’ nor ‘not yet final’ under Griffith.” Id. Accordingly, “belated appeals of
    sentences entered before Blakely . . . are not subject to the holding in that case.”
    Id. at 428.
    [18]   This is a belated appeal pursuant to P-C.R. 2. Lozier was sentenced in January
    1994. His case was final for purposes of retroactivity when the time for filing a
    direct appeal expired, which was long before Blakely was decided in 2004.
    Because Lozier’s case was neither “pending on direct review” nor “not yet
    final” when Blakely was decided, Blakely does not apply retroactively to him.
    2. Inappropriate Sentence
    [19]   Lozier claims that his seventy-year aggregate sentence is inappropriate.
    Pursuant to Ind. Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the
    principal role of appellate review should be to attempt to leaven the outliers,
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 15 of 21
    “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind. 2008). “‘[W]e must and should exercise deference to a
    trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
    consideration’ to that decision and because we understand and recognize the
    unique perspective a trial court brings to its sentencing decisions.’” Rogers v.
    State, 
    878 N.E.2d 269
    , 275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007)), trans. denied. “Such deference should
    prevail unless overcome by compelling evidence portraying in a positive light
    the nature of the offense (such as accompanied by restraint, regard, and lack of
    brutality) and the defendant’s character (such as substantial virtuous traits or
    persistent examples of good character).” Stephenson v. State, 
    29 N.E.3d 111
    , 122
    (Ind. 2015).
    [20]   The determination of whether we regard a sentence as inappropriate “turns on
    our sense of the culpability of the defendant, the severity of the crime, the
    damage done to others, and myriad other factors that come to light in a given
    case.” Bethea v. State, 
    983 N.E.2d 1134
    , 1145 (Ind. 2013). The question under
    App. R. 7(B) is “not whether another sentence is more appropriate” but rather
    “whether the sentence imposed is inappropriate.” Miller v. State, 
    105 N.E.3d 194
    , 196 (Ind. Ct. App. 2018). Lozier bears the burden of persuading us that
    his sentence is inappropriate. Barker v. State, 
    994 N.E.2d 306
    , 315 (Ind. Ct.
    App. 2013), trans. denied.
    [21]   As this court has recognized, “[t]he nature of the offense is found in the details
    and circumstances of the commission of the offense and the defendant’s
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 16 of 21
    participation.” Croy v. State, 
    953 N.E.2d 660
    , 664 (Ind. Ct. App. 2011). Lozier
    argues that he was one of three young men “who entered into an ill-conceived
    agreement to attempt what they thought would be an easy robbery” and
    highlights that Davis provided the target and the gun and that Widener
    discharged the gun and “accelerated the robbery into a murder.” Appellant’s
    Brief at 14. Lozier acknowledges that he “played his part in the crime,” but
    maintains that his participation “was minimal” in comparison to Widener’s,
    whose “panicked and unnecessary conduct” resulted in Wells’s death. Id. at 18.
    Lozier thus suggests that his culpability was less than Widener’s, who, after
    appeal, received a fifty-year aggregate sentence, and that his sentence should be
    revised to a fifty-year aggregate term. We disagree that the nature of the offense
    warrants a reduction in his sentence.
    [22]   Lozier and his co-defendants decided to rob the night manager of Ponderosa to
    get some cash. While wearing masks, Lozier and Widener crouched in hiding
    for the victim to arrive. They brought Davis’s gun with them. Lozier placed a
    cement block in the bank driveway so that the driver would need to exit her car.
    The first shot to Wells injured her and the second killed her. Thereafter, Lozier
    and/or Widener moved her to the back seat. One or both of them shot her two
    additional times. Lozier drove the car to a landfill area and hid the car amongst
    trees. Lozier and Widener continued with their lives until being questioned
    four or five months later, in March 1993. The nature of the offense displays a
    callous disregard for human life. Lozier has not shown that a sentence
    reduction is warranted based on the nature of the offense.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 17 of 21
    [23]   “The character of the offender is found in what we learn of the offender’s life
    and conduct.” Croy, 953 N.E.2d at 664. Lozier urges that he had “significant
    trauma” in his childhood, which included being raised by an alcoholic mother
    and abusive stepfather. Appellant’s Brief at 19. At his sentencing hearing, Lozier
    described being abused by his biological father who “forcibly injected” Lozier
    with heroin when Lozier was in eighth grade and allowed others to rape Lozier.
    Id. At some point his mother temporarily lost custody of him and his siblings,
    who temporarily lived in foster care. When they returned to her care, Lozier
    stated that he became primarily responsible for protecting and providing for his
    siblings and that he “resorted to stealing to try to keep his family afloat.” Id.
    [24]   As to his character, Lozier also emphasizes that when law enforcement
    interviewed him in March 1993, he confessed, expressed remorse, and
    voluntarily participated in multiple interviews. He also provided law
    enforcement with details, taking police to where he and Widener had disposed
    of clothing and a mask, and where he had thrown the gun, which allowed law
    enforcement to recover the gun from the river. He obtained his GED while
    awaiting sentencing. In arguing for sentence revision, Lozier reminds us that in
    1995 our Supreme Court reduced Widener’s sentence to fifty years given
    mitigating circumstances including Widener’s youth, plea of guilty, and limited
    criminal history, and, as a result, Widener was released in April 2016, yet
    “Lozier remains incarcerated when the man who pulled the trigger walks free.”
    Id. at 21. Lozier argues that his character warrants “at least as much
    consideration as Widener received” and that we should revise his sentence to
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 18 of 21
    fifty-year aggregate term and remand with instructions to release him. Id. We
    do not find, however, that Lozier’s character warrants sentence revision.
    [25]   While Lozier emphasizes that he did not pull the trigger and that it was
    Widener’s panicked and impulsive reaction that turned a blundered robbery
    into a “serious and heinous crime[,]” we examine more than who pulled the
    trigger. Id. at 17. Lozier chose to actively plan and participate in the robbery.
    Indeed, in Widener’s appeal, our Supreme Court found that “the plan was
    initiated by Lozier[.]” Widener, 659 N.E.2d at 534. After Wells was shot,
    Lozier moved her body, either on his own or with Widener’s help, to the floor
    of the back seat, and after one of them shot her again, Lozier drove the car and
    hid it. Lozier took the gun and threw it in the Ohio River. Lozier and Widener
    also discarded other items including gloves, a mask, and the money bag. The
    day after the murder, Lozier went to the mall, saw a movie, and spent proceeds.
    While Lozier emphasizes that he confessed to police and cooperated, that
    occurred months later when police already were armed with information from
    two sources that Lozier and Widener were involved in the crimes. Lozier’s
    planning, commission, and hiding of the crime reflect poorly on his character.
    We do not dispute, nor are we unsympathetic to, Lozier’s characterization that
    he had a “wretched childhood.” Appellant’s Brief at 20. However, “Our
    supreme court has ‘consistently held that evidence of a difficult childhood
    warrants little, if any, mitigating weight.’” Patterson v. State, 
    909 N.E.2d 1058
    ,
    1062 (Ind. Ct. App. 2009) (quoting Ritchie v. State, 
    875 N.E.2d 706
    , 725 (Ind.
    2007)); see also Carter v. State, 
    44 N.E.3d 47
    , 56 (Ind. Ct. App. 2015)
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019   Page 19 of 21
    (recognizing defendant’s “horrendous” childhood but rejecting claim that
    subsequent criminal activity was “inevitable”).
    [26]   “When considering the character of the offender, one relevant fact is the
    defendant’s criminal history,” and “[t]he significance of criminal history varies
    based on the gravity, nature, and number of prior offenses in relation to the
    current offense.” Sanders v. State, 
    71 N.E.3d 839
    , 844 (Ind. Ct. App. 2017)
    (quoting Garcia v. State, 
    47 N.E.3d 1249
    , 1251 (Ind. Ct. App. 2015), trans.
    denied), trans. denied. The trial court may consider not only the defendant’s
    adult criminal history but also his juvenile delinquency record in determining
    whether his criminal history is significant. 
    Id.
    [27]   On appeal, Lozier does not mention having any criminal history. In its written
    sentencing order, however, the trial court observed that Lozier “has an
    extensive criminal history of increasing severity.” 6 Appellant’s Appendix Vol. 3 at
    163. The record reflects that as a juvenile Lozier had an informal adjustment
    for criminal mischief for causing property damage. When he was eighteen, he
    was convicted of Class A misdemeanor theft, originally charged as a felony,
    and placed on probation for a year. While on probation, he was charged with
    burglary and theft. While out on bond on those charges, and still on probation
    6
    When discussing Lozier’s criminal history, the State indicates that “because Defendant has chosen not to
    include his pre-sentence investigation report in the record, this Court will not be able to review that criminal
    history but will simply have to take the trial court’s observation in that regard at face value.” Appellee’s Brief
    at 14. However, Lozier’s 1993 pre-sentence investigation report was included in the record at Appellant’s
    Confidential Appendix Vol. 6.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019                       Page 20 of 21
    for theft, he committed the current offenses. After the death of Wells, he pled
    guilty to Class D felony theft and was sentenced to three years that would be
    served concurrent with whatever sentence would be imposed in the felony
    murder and robbery cause. We find that Lozier had amassed several offenses,
    increasing in severity, and he committed them while out on bond and
    probation. This is distinguishable from Widener, who had virtually no criminal
    history before or after the robbery and murder and had “never been convicted of
    a criminal act nor formally adjudicated a delinquent.” 7 Prior Record of
    Proceedings Vol. 2 at 85. We conclude that Lozier has not shown that his
    character renders the sentence inappropriate.
    [28]   We reiterate that our task on appeal is not to determine whether another
    sentence might be more appropriate; rather, the inquiry is whether the imposed
    sentence is inappropriate. Barker, 994 N.E.2d at 315. Lozier has failed to carry
    his burden of establishing that his sentence is inappropriate in light of the nature
    of the offense and his character.
    [29]   Judgment affirmed.
    Najam, J. and Pyle, J., concur.
    7
    According to the record, Widener had one informal adjustment as a juvenile in April 1992 for “minor
    consuming.” Prior Record of Proceedings Vol. 2 at 85.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1145 | March 12, 2019               Page 21 of 21
    

Document Info

Docket Number: 18A-CR-1145

Filed Date: 3/12/2019

Precedential Status: Precedential

Modified Date: 3/12/2019