Adam Sullender v. State of Indiana ( 2013 )

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 Jul 30 2013, 11:12 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PETER D. TODD GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM SULLENDER, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1212-CR-554
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-1205-FC-130
July 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Adam Sullender (“Sullender”) appeals his sentence for Class C felony battery of a
pregnant woman1 and Class D felony strangulation.2
We affirm.
ISSUE
Whether the trial court abused its discretion in sentencing Sullender.
FACTS
Kristy Kasper (“Kasper”) and her two-year daughter, R.H., lived with Sullender in
Elkhart, Indiana. Kasper was seven-and-one-half months pregnant with Sullender’s
child. On May 15, 2012, Sullender and Kasper were arguing. Kasper called her
estranged husband, Joshua Huff (“Huff”), and asked him to pick up their daughter. When
Huff arrived, he noticed that Kasper was crying and that she had blood on her arm and a
bruise on her cheek. Huff went to the Elkhart Police Department and spoke with an
officer.
Officers went to Sullender and Kasper’s home and observed that Kasper had a
scratch on the left side of her face and appeared to be upset. Another officer observed
that Kasper seemed scared. All of the officers observed that Kasper was visibly pregnant.
Kasper did not initially cooperate and told the officers that nothing happened.
As the officers returned to their vehicles, a neighbor yelled that Sullender hit
Kasper. The officers enlisted the neighbor to help in the investigation, but Kasper again
1
Ind. Code § 35-42-2-1(a)(8).
2
Ind. Code § 35-42-2-9(b)(1).
2
refused to cooperate. According to their department protocol, the officers left a domestic
violence referral form with Kasper. At that point, Kasper sat down because she was
feeling ill. Kasper stated that her ear hurt and that she had trouble hearing out of it. An
officer observed that the area behind Kasper’s ear was red and bleeding. Officers
requested that an ambulance come to the scene. When the ambulance arrived and the
medic helped her inside, Kasper stated that “[Sullender] hit her.” (Tr. 451). When she
arrived at the hospital, Kasper gave a statement to the police stating that she and
Sullender argued. Kasper further stated that Sullender choked her, slammed her against a
wall, and punched her head.
On May 17, 2012, the State charged Sullender with battery on a pregnant woman,
a Class C felony, strangulation, a Class D felony, and domestic battery, a Class A
misdemeanor. The trial court held a jury trial on October 9, 2012, and the jury convicted
Sullender of all charges.3 The trial court found Sullender’s criminal history, the brutality
of the crime, and his recent release from parole as aggravating circumstances. The trial
court found Sullender’s apology and remorse as mitigating circumstances. The trial court
sentenced Sullender to an aggregate sentence of eleven (11) years, with eight (8) years
executed and three (3) years suspended to probation. Of the eight (8) years executed, the
trial court ordered that Sullender serve four (4) years in the Department of Correction and
four (4) years in a work release program.
3
For double jeopardy purposes, the trial court vacated the conviction for domestic battery.
3
DECISION
Sullender argues that the trial court abused its discretion in determining his
sentence. Specifically, he contends that the trial court failed to properly consider the
hardship his incarceration would cause his family.
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.” Anglemeyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on other grounds on reh’g 875 N.E.2d 218. 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. Anglemeyer, 868 N.E.2d at 490. An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant to establish that the mitigating
evidence is both significant and clearly supported by the record. Rascoe v. State, 736
N.E.2d 246, 249 (Ind. 2000). A trial court is not obligated to accept what a defendant
contends to be a mitigating circumstance. Id. If an abuse of discretion is found, remand
for resentencing may be appropriate “if we cannot say with confidence that the trial court
4
would have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Anglemeyer, 868 N.E.2d at 491.
Here, we first note that Ind. Code § 35-38-1-7.1(b)(10) allows a trial court to
consider whether incarceration “will result in an undue hardship to the person or the
dependents of the person.” (emphasis added). Our Indiana Supreme Court has stated
that, “[m]any persons convicted of serious crimes have one or more children and, absent
special circumstances, trial courts are not required to find that imprisonment will result in
undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). At his
sentencing, Sullender presented a letter from his mother and testimony from Kasper
asserting that his incarceration would be a hardship. However, neither the letter nor
Kasper’s testimony presented any special circumstances that would have mandated the
trial court’s consideration. Moreover, Sullender received alternative placement for a
portion of his sentence despite the fact that he was recently released from parole for a
violent felony.4 In sum, the record showed no special circumstances that would have
warranted Sullender’s entire sentence to be served on work release. Accordingly, the
trial court did not abuse its discretion in sentencing Sullender.
Affirmed.
VAIDIK, J., and KIRSCH, J., concur.
4
According to the presentence investigation, Sullender was convicted in Michigan for assault with intent
to murder and discharged from parole on July 28, 2011.
5