Dustin Lee Fisher v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 18 2019, 8:45 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
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General of Indiana
Greenfield, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Lee Fisher, June 18, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-186
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable R. Scott Sirk,
Appellee-Plaintiff. Judge
Trial Court Cause No.
30C01-1802-F5-419
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-186 | June 18, 2019 Page 1 of 8
Case Summary
[1] Dustin Lee Fisher (“Fisher”) pleaded guilty to Failure to Register as a Sex
Offender, as a Level 5 felony,1 without the benefit of a plea agreement. The
trial court sentenced him to four years in the Indiana Department of Correction
(“DOC”), with one year suspended to probation. Fisher now appeals his
sentence. We affirm.
Issues
[2] Fisher presents the following two issues for our review:
I. Whether the trial court abused its discretion by relying on
Fisher’s history of criminal and delinquent behavior when
imposing a sentence greater than the advisory term; and
II. Whether Fisher’s sentence is inappropriate in light of the
nature of his offense and his character.
Facts and Procedural History
[3] In 2014, under trial court cause number 30C01-1404-FD-613, Fisher pleaded
guilty to Criminal Confinement, as a Class D felony,2 and was sentenced to
1
Ind. Code §§ 11-8-8-17(a)(1) & (b)(1).
2
I.C. § 35-42-3-3(a)(1).
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three years in the DOC. Fisher was also required to register as a sex offender
for a ten-year period.
[4] In 2015 and 2016, Fisher pleaded guilty to two separate counts of Failure to
Register as a Sex Offender, as Level 6 felonies, under trial court cause numbers
30C01-1506-F6-802 (“cause number F6-802”) and 49G09-1506-F6-20020.
[5] In early 2018, Fisher failed to timely notify the Hancock County Sheriff’s
Department that he had changed his place of employment. As a result, Fisher
was charged with Failure to Register as a Sex Offender, this time as a Level 5
felony due to his prior convictions for Failure to Register. 3 On November 9,
2018, Fisher pleaded guilty as charged in open court, without the benefit of a
plea agreement. The trial court held a sentencing hearing on January 3, 2019,
and sentenced Fisher to four years in the DOC, with three years executed and
one year suspended to probation. Fisher now appeals his sentence.
Discussion and Decision
Sentencing Discretion
[6] Fisher first argues that the trial court abused its discretion by improperly
considering his criminal history as an aggravating circumstance when imposing
a sentence greater than the advisory term.
3
In the charging information, the State relied only on the conviction under cause number F6-802.
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[7] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed 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). 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. (citation and quotation marks omitted).
Trial courts must enter a sentencing statement whenever imposing a sentence
for a felony offense, and the statement must include a reasonably detailed
recitation of the court’s reasons for imposing a particular sentence. Id. “If the
recitation includes a finding of aggravating or mitigating circumstances, then
the statement must identify all significant mitigating and aggravating
circumstances and explain why each circumstance has been determined to be
mitigating or aggravating.” Id.
[8] A trial court abuses its discretion if it (1) does not enter a sentencing statement,
(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 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. Jackson v. State, 973
N.E.2d 1123, 1130 (Ind. Ct. App. 2012) (citing Anglemyer, 868 N.E.2d at 490-
91), trans. denied.
[9] A Level 5 felony carries a sentencing range of one to six years, with the
advisory sentence being three years. I.C. § 35-50-2-6. At the sentencing
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hearing, the trial court considered as a mitigating circumstance that Fisher took
responsibility for his offense. As aggravating circumstances, the trial court
found that Fisher (1) has “a history of criminal delinquent behavior” and (2)
had recently violated the rules of probation, parole, and community corrections.
(Tr. Vol. II 72.) Finding that the aggravating circumstances outweighed the
mitigating circumstance, the trial court sentenced Fisher to four years in the
DOC, with three years executed and one year suspended to probation. 4
[10] Fisher argues that by identifying his criminal history as an aggravating
circumstance, the trial court relied on Fisher’s prior convictions for failure to
register as a sex offender, and that this reliance was improper because his prior
convictions comprised a material element of the offense for which he was being
sentenced. (Appellant’s Br. 8.) Our supreme court has explained that “[w]here
a trial court’s reason for imposing a sentence greater than the advisory sentence
includes material elements of the offense, absent something unique about the
circumstances that would justify deviating from the advisory sentence, that
reason is ‘improper as a matter of law.’” Gomillia v. State, 13 N.E.3d 846, 852-
53 (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491).
[11] In sentencing Fisher, the trial court made no specific reference to Fisher’s two
prior convictions for failure to register as a sex offender, instead identifying only
4
The State mischaracterizes Fisher’s sentence as “the advisory sentence” (Appellee’s Br. 4) and later as “the
advisory executed sentence of three years, with one additional year suspended to probation.” (Appellee’s Br.
9.) Fisher was sentenced to an aggregate of four years, a deviation from the advisory sentence of three.
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Fisher’s “history of criminal delinquent behavior” as one of two aggravating
circumstances it considered. (Tr. Vol. II 72.) We thus disagree with Fisher that
the trial court’s general reference to Fisher’s criminal history equated to an
improper reliance on a material element of the crime for which he was being
sentenced. While Fisher’s two prior convictions for failure to register certainly
fall under the general category of Fisher’s past criminal behavior, he has
additional criminal history wholly unrelated to the instant and underlying
offenses, including at least four adult convictions and four juvenile
adjudications. The trial court could properly have relied on these unrelated
convictions and adjudications under the category of “history of criminal
delinquent behavior” to justify a sentence greater than the advisory term. See
Gomillia, 13 N.E.3d at 853 (citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind.
2001)) (holding that even if the trial court relied on an improper factor under
the aggravating circumstance of ‘nature and circumstances of a crime,’ the
sentence may be upheld so long as the remaining components of the aggravator
were proper); Shotts v. State, 53 N.E.3d 526, 538-39 (Ind. Ct. App. 2016)
(holding that the trial court did not abuse its discretion in considering the
defendant’s criminal history as an aggravating circumstance where his criminal
history included the robbery conviction that was an element of the crime for
which the defendant was being sentenced).
[12] The trial court did not abuse its discretion in relying on Fisher’s history of
criminal and delinquent behavior in imposing a sentence greater than the
advisory term.
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Independent Sentence Review
[13] We turn now to Fisher’s contention that his sentence was inappropriate in light
of the nature of his offense and his character. Article 7, Section 6 of the Indiana
Constitution grants this Court authority to independently review and revise a
sentence imposed by the trial court. To implement this grant of authority,
Indiana Appellate Rule 7(B) provides: “The 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.” Ind. Appellate Rule 7(B). The analysis is
not whether another sentence is more appropriate, but whether the sentence
imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The
principal role of our review is to leaven the outliers, and our review is very
deferential to the trial court. Id. The defendant bears the burden of persuading
the appellate court that his or her sentence is inappropriate. Id.
[14] As to the nature of the offense, there is nothing remarkable about Fisher’s
failure to register. Fisher was required to timely inform the Hancock County
Sheriff’s Department of a change in his place of employment, but did not.
[15] As to the character of the offender, at the time of sentencing, twenty-three-year-
old Fisher had accumulated a criminal history including ten juvenile cases and
referrals, resulting in at least four adjudications, and eight adult cases (one
waived from juvenile court), resulting in six felony and two misdemeanor
convictions (including the instant and underlying convictions). He has a well-
documented history of noncompliance with the rules of probation and
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community corrections. And as both the probation officer who prepared the
presentence investigation report and the trial court acknowledged, Fisher had
been “given chances other offenders are never offered” (Tr. Vol. II 71), such as
being permitted to return to community corrections work release twice outside
the normal operating procedures. Nevertheless, the record reveals that Fisher
failed to take advantage of these alternatives to incarceration, instead engaging
in a pattern of rule noncompliance.
[16] Fisher has not demonstrated that a sentence of four years in the DOC, with one
year suspended to probation, is inappropriate in light of the nature of his offense
and his character.
Conclusion
[17] The trial court did not abuse its discretion in sentencing Fisher. Fisher’s
sentence is not inappropriate.
[18] Affirmed.
Riley, J., and Pyle, J., concur.
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