Christopher Clark v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 21 2016, 7:39 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John L. Tompkins Gregory F. Zoeller
Brown Tompkins Lory & Mastrian Attorney General of Indiana
Indianapolis, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Clark, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
33A04-1605-CR-974
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Kit C. Dean Crane,
Appellee-Plaintiff Judge
Trial Court Cause No.
33C02-1411-FB-21
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 1 of 8
Case Summary
[1] Christopher Clark pled guilty to causing the death of his son and the serious
bodily injury of his daughter while operating a vehicle with marijuana in his
system. The trial court sentenced him to serve seven years in prison followed
by one year of probation. On appeal, Clark argues that the trial court erred by
failing to find certain mitigating factors and that his sentence is inappropriate
and should be reduced under Indiana Appellate Rule 7(B). We affirm.
Facts and Procedural History
[2] In April 2013, Clark was driving with his two-year-old son and his six-year-old
daughter when he failed to yield the right-of-way at an intersection and collided
with a van, resulting in the death of his son and serious injuries to his daughter.
The investigation of the incident revealed that Clark’s blood contained 3.0
ng/mL of THC and 34 ng/mL of THCA, two chemicals found in marijuana.
[3] The State charged Clark with two counts of operating a vehicle with a schedule
I controlled substance in his body, one a Class B felony for causing death, see
Ind. Code Ann. § 9-30-5-5(b)(2) (West 2012), and the other a Class D felony for
causing serious bodily injury, see Ind. Code Ann. § 9-30-5-4(a)(2) (West 2012).
The Class B felony carried with it a sentencing range of six to twenty years and
an advisory sentence of ten years, see Ind. Code Ann. § 35-50-2-5 (West 2012),
and the Class D felony a range of six months to three years with an advisory
sentence of one-and-a-half years, see Ind. Code Ann. § 35-50-2-7 (West 2012).
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 2 of 8
Facing up to twenty-three years in prison, Clark entered into a plea agreement
that (1) capped his sentence on the death count at eight years and (2) provided
that his sentence on the serious-bodily-injury count would run concurrent with
the sentence on the death count but (3) otherwise left sentencing to the
discretion of the trial court.
[4] In sentencing Clark, the trial court found two aggravating factors—Clark’s
victims were less than twelve years old and were in Clark’s care, custody, or
control. It also found one mitigating factor—Clark had no history of
delinquency or criminal activity. With those factors in mind, the court
sentenced Clark to eight years with one year suspended to probation on the
death count and a concurrent term of two years on the serious-bodily-injury
count. The court ordered that Clark serve his seven years in the Department of
Correction (“DOC”).
[5] Clark now appeals his sentence.
Discussion and Decision
[6] Clark contends that the trial court should have found additional mitigating
factors and, in the alternative, that his sentence is inappropriate and should be
reduced pursuant to Indiana Appellate Rule 7(B).
I. Mitigating Factors
[7] Clark asked the trial court to find six mitigating factors, but the court found
only one: Clark’s lack of criminal history. He argues that the court erred by not
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 3 of 8
finding the other five. Our trial courts enjoy broad discretion in finding
mitigating (and aggravating) factors, and we will reverse only for an abuse of
that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013). “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.1
[8] Clark first asserts that the trial court should have found that his crime was the
result of circumstances unlikely to recur and that he is unlikely to commit
another crime. See Ind. Code § 35-38-1-7.1(b)(2), (8). The trial court
considered these mitigators but rejected them because of Clark’s admission that
he continued to use marijuana after this incident and Clark’s “troubling”
driving record, which includes eleven traffic citations from both before and after
the incident. Tr. p. 50. The trial court acted well within its discretion in this
respect.
[9] Next, Clark argues that the trial court should have assigned mitigating weight to
the fact that he paid $1100 in restitution to his son’s mother at the sentencing
hearing. See I.C. § 35-38-1-7.1(b)(9). In rejecting this mitigator, the court noted
that the total restitution to be paid was $3496.47, meaning that Clark was
1
Clark also purports to challenge the weight that the trial court assigned to the aggravators and the mitigator
that it did find. However, our Supreme Court has made clear that a trial court’s weighing of aggravators and
mitigators is no longer subject to review for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); see also Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct.
App. 2009).
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 4 of 8
paying only about a third of what he owed. While a third is certainly better
than nothing, we cannot say that the trial court abused its discretion in this
regard.
[10] We do think the trial court probably should have accepted Clark’s other two
proposed mitigators. First, Clark’s imprisonment will “result in undue
hardship” to his daughter. See I.C. § 35-38-1-7.1(b)(10). The daughter’s mother
testified that Clark’s relationship with their daughter “has become
unimaginable” since the incident, that “[t]hey share something none of us can
quite understand because we were not in that accident with them,” and that
their daughter “turns to her daddy for strength when she’s having a bad day or
night.” Tr. p. 37. She also testified that Clark “works six (6) days a week with
overtime” and is their “sole financial provider.” Id. Second, the probation
department wrote in its pre-sentence investigation report that Clark is “likely to
respond affirmatively to probation or short term imprisonment.” See I.C. § 35-
38-1-7.1(b)(7). The State did not argue against this mitigator at sentencing, and
the trial court did not provide an explanation for rejecting it.
[11] That said, we will remand for resentencing only 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.” Anglemyer, 868
N.E.2d at 491. Here, we are entirely confident that the trial court would have
imposed the same sentence even if it had found all of the mitigators proposed
by Clark. Significant mitigation was built into the plea agreement. The eight-
year cap was well below the potential maximum sentence of twenty-three years
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 5 of 8
and also below the ten-year advisory sentence for the death count. There is
nothing in the record before us suggesting that the trial court would choose a
different sentence on remand, even in light of additional mitigators.
II. Appropriateness
[12] Clark also asks us to exercise our authority under Indiana Appellate Rule 7(B),
which provides that an appellate 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.” “Whether a sentence is inappropriate ultimately
turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016). Clark has not met that burden in this case.
[13] Clark focuses on the nature of his offense, noting that the amount of THC and
THCA in his blood at the time of the collision was small, that there is no
evidence that he was impaired at the time, and that the loss of his son and the
injuries to his daughter have caused and will continue to cause him a great
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 6 of 8
amount of personal suffering beyond any sentence imposed.2 But even if we
accept all of these things as true, they do not justify a sentence reduction.
Again, Clark’s sentence was capped well below his total exposure of twenty-
three years and also below the ten-year advisory sentence on the death count,
and the trial court ultimately ordered him to serve seven years, just one year
more than the minimum sentence under the plea agreement. Given that Clark’s
victims were, as the trial court emphasized, his own young children who were
helpless to protect themselves, a sentence slightly longer than the minimum is
by no means inappropriate.
[14] As for Clark’s argument that he should serve his time on home detention, work
release, or community corrections instead of in the DOC, we first note that our
trial courts are in a far better position than this Court to determine the feasibility
and appropriateness of particular placements in particular communities. See
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Moreover, the issue for
us is whether the chosen placement is inappropriate, not whether an alternative
placement would be “more appropriate.” Id.[15] In light of Clark’s failure to properly care for his children, and the tragic
consequences of that failure, we cannot say that requiring him to serve his near-
2
There is evidence that Clark was sending and receiving text messages in the minutes leading up to the
collision, a fact on which the State places a great deal of emphasis. We agree with the State that texting-and-
driving is disturbing behavior. However, the State has not directed us to any evidence that Clark was driving
when he was texting, let alone evidence that he was using or looking at his phone as he approached or
entered the intersection. Perhaps for these reasons, the trial court did not mention the texting when imposing
Clark’s sentence.
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 7 of 8
minimum sentence in prison is inappropriate. The purpose of Rule 7(B) review
is to “leaven the outliers.” Cardwell, 895 N.E.2d at 1225. The sentence
imposed here is not an outlier.
[16] Affirmed.
Bradford, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A04-1605-CR-974| December 21, 2016 Page 8 of 8