Donny Lee Sturgill v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
FILED
Sep 27 2012, 9:24 am
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
__________________________________________________________
DONNY LEE STURGILL, )
)
Appellant-Defendant, )
)
vs. ) No. 52A02-1202-CR-162
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
________________________________________________________________________
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable Daniel C. Banina, Judge
Cause No. 52D02-1105-FD-86
______________________________________________________________________________
September 27, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Donny Sturgill appeals his three-year sentence for Class D felony escape. We
affirm.
Issue
Sturgill raises one issue, which we restate as whether his three-year sentence is
inappropriate.
Facts
In 2001, Sturgill pled guilty to attempted murder and was sentenced to thirty years
with ten years suspended. After seeking post-conviction relief, the State and Sturgill
agreed to set aside the attempted murder conviction, and Sturgill pled guilty to Class B
felony aggravated battery. Sturgill was sentenced to twenty years and apparently was
permitted to serve the remainder of his incarceration on in-home detention. After
approximately six months, Sturgill violated the terms of his in-home detention by using
cocaine, and his in-home detention was revoked. After serving time in the Department of
Correction, Sturgill was again permitted to serve a portion of his sentence on in-home
detention.
On May 21, 2011, while on in-home detention, Sturgill cut his electronic
monitoring device after an argument with his wife and then fled to Illinois. On May 26,
2011, the State charged Sturgill with one count of Class D felony escape for removing the
electronic monitoring device. On September 14, 2011, the State filed a second Class D
felony escape charge for fleeing to Illinois. Sturgill eventually pled guilty to the first
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count, and the State agreed to dismiss the second count and not to file charges arising out
of an unrelated incident.
On January 30, 2012, a sentencing hearing was held. The trial court considered
Sturgill’s criminal history and the fact that he was in a community transition program at
the time of the offense as aggravators. The trial court considered Sturgill’s guilty plea as
a mitigator. The trial court found that the aggravators outweighed the mitigators and
sentenced him to three years in the Department of Correction. Sturgill now appeals.
Analysis
Sturgill argues that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) permits us to 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 offenses and the character of the
offender. Although Rule 7(B) does not require us to be “extremely” deferential to a trial
court’s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and
recognize the unique perspective a trial court brings to its sentencing decisions. Id.“Additionally, a defendant bears the burden of persuading the appellate court that his or
her sentence is inappropriate.” Id.The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
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the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Sturgill contends that the nature of the offense does not warrant the maximum
sentence because he cut the electronic monitoring device after an argument with his wife.
According to Sturgill, he was acting in a moment of stress and strong emotion without the
benefit of cool reflection. Even if Sturgill, who had previously violated the terms of his
in-home detention, was upset because of an argument with his wife, it does not justify
cutting off the electronic monitoring device and fleeing the state for two months. We are
not convinced that the nature of the offense warrants a reduction of the sentence.
As for his character, Sturgill asserts the maximum sentence is not warranted
because he pled guilty and his criminal history is “not reprehensible.” Appellant’s Br. p.
9. Although he pled guilty, he benefited from the dismissal of another charge and the
State’s agreement not to file additional unrelated charges. Further, Sturgill’s criminal
history includes three juvenile adjudications and a Class B felony aggravated battery
conviction, the basis for his in-home detention. More importantly, however, Sturgill had
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previously violated the conditions of in-home detention by using cocaine. Sturgill’s
character does not require reduction of his sentence.
Conclusion
Sturgill’s three-year sentence for escape is not inappropriate. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
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