Michael Sopher 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,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN E. BARRETT GREGORY F. ZOELLER
Rush County Public Defender’s Office Attorney General of Indiana
Rushville, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 28 2012, 9:18 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
MICHAEL SOPHER, )
)
Appellant-Defendant, )
)
vs. ) No. 70A01-1203-CR-133
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RUSH CIRCUIT COURT
The Honorable David E. Northam, Judge
Cause No. 70C01-1108-FB-502
September 28, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Michael Sopher pleaded guilty pursuant to a plea agreement to class C felony child
molesting. The trial court imposed an eight-year executed sentence. Sopher challenges the
sentence, presenting the following restated issues for review:
1. Did the trial court err in finding improper aggravating circumstances
and misdemeanor-weighing the mitigating circumstances?
2. Did the trial court impose a sentence that is inappropriate in light of the
nature of the offense and the character of the offender?
We affirm.
The facts favorable to the conviction are that on August 9, 2011, Sopher was visiting a
home with his mother. The owners of the home had a daughter, five-year-old B.M. At some
point, Sopher went upstairs and began looking at pornographic websites on a computer.
Defendant had pulled down his pants and was masturbating when B.M came into the room.
He told her to touch his erect penis, which she did. Sopher was eighteen years old at the
time. He knew B.M. was five years old because he had been a guest at her most recent
birthday party.
In connection with this incident, the State charged Sopher with class C felony child
molesting, class B felony criminal deviate conduct, and class D felony sexual battery.
Sopher and the State entered into a written plea agreement by which Sopher agreed to plead
guilty to class C felony child molesting in exchange for the State’s agreement to dismiss the
other two charges and an unrelated, pending case for driving while suspended. Pursuant to
the agreement, sentencing was left to the trial court’s discretion.
A sentencing hearing was conducted at which Sopher apologized for his actions. He
informed the court he had very limited reading and writing skills. He also claimed that he
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had been diagnosed with ADD and ADHD, but had not received treatment for the latter
conditions. The evidence indicated that Sopher was unemployed and drawing disability
benefits. At the conclusion of the hearing, the trial court found two mitigating factors:
Sopher’s remorse and his guilty plea. With respect to the latter, however, the court noted that
Sopher had received a benefit from entering into the plea agreement. The court noted that he
had no adult criminal history, but observed that this “may have something to do with … his
young age.” Transcript at 51.
The trial court found as aggravating circumstances that Sopher had made threats to
B.M. to coerce her silence and noted that those threats were brought to the court’s attention
in letters written to the court by several members of B.M.’s family in anticipation of
sentencing. According to B.M.’s great-aunt, those threats included that he would “do it to
her again when she is 10.” Exhibit Index, Exhibit 1. The court also cited Sopher’s “extensive
juvenile record”, but stressed that it would not consider status juvenile offenses such as
curfew violations and runaway. Transcript at 51. The court expressly did not consider the
victim’s age or the results of a risk-assessment test that indicated Sopher presented a low risk
of reoffending. The trial court sentenced B.M. to eight years imprisonment, the maximum
allowable sentence for a class C felony.
1.
Sopher contends the trial court erred in finding improper aggravating circumstances
and in failing to accord sufficient weight to the mitigating circumstances properly found by
the court. “[S]entencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222
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(Ind. 2008). The trial court must enter a sentencing statement that includes its reasons for
imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218. If such includes a finding of aggravating or mitigating
circumstances, the statement must identify all significant mitigating and aggravating
circumstances. Id.Sopher sums up his contention with respect to the mitigating circumstances found by
the trial court as follows:
The Defendant argues he is entitled to a sentence less than the maximum for
his acceptance of responsibility, his willingness to plead guilty to a crime for
which he was originally charged, and his remorse expressed to the victim and
her family. Further, the Defendant did not have any criminal history as an
adult. The Defendant submits that the trial court did not appropriately weigh
the aforementioned mitigating factors.
Appellant’s Brief at 5. Essentially, Sopher claims the trial court did not properly weigh the
mitigating factors. This claim is beyond our purview. See Webb v. State, 941 N.E.2d 1082,
1088 (Ind. Ct. App. 2011) (“[t]he relative weight given to the aggravating and mitigating
factors is not subject to review”), trans denied.
Sopher next contends the trial court erred in identifying two aggravating
circumstances. The first is that the trial court erred in citing threats Sopher made to B.M.
These threats appear to have been substantiated only in letters written by B.M.’s family to the
court in anticipation of sentencing. His entire argument on this point is reproduced here:
The trial court also relied upon an alleged threat the Defendant made toward
the victim. There is no evidence in the transcript record that the Defendant
made any threat whatsoever toward the victim and the Defendant did not
confess to same. The Defendant believes its consideration by the trial court is
error and not justified by Indiana law or any evidence submitted to the trial
court.
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Appellant’s Brief at 7-8.
“A party waives an issue where the party fails to develop a cogent argument or
provide adequate citation to authority and portions of the record.” Hogan v. State, 966
N.E.2d 738, 743 n.2 (Ind. Ct. App. 2012), trans. denied (quoting Davis v. State, 835 N.E.2d
1102, 1113 (Ind. Ct. App. 2005), trans. denied). Sopher’s claim on this issue is neither
explained nor supported by citation to authority. Indeed, it is not developed beyond the point
of being a mere assertion. As such, it is waived.
Sopher stated in the “summary of the argument” section of his brief that the court
considered aggravating circumstances – plural – that were not introduced into evidence. We
have identified one aggravator to which this claim must allude, i.e., the threat to B.M.
referenced in some of the letters submitted to the court by B.M.’s family members. The
second claimed invalid aggravator must be the fact that Sopher could have been convicted of
a class B felony had the State not dropped the charge as part of the plea agreement. Sopher’s
entire argument upon this point consists of the following:
The State of Indiana recommended, and the court followed, a sentence of eight
(8) years executed. The Defendant submits that the State based its
recommendation solely on the idea that the Defendant “could have” been
convicted of a Class ‘B’ Felony at trial. The Defendant does not believe the
aforementioned is an appropriate reason for sentencing him to the maximum of
eight (8) years. The State of Indiana’s argument is not based on Indiana law
and makes assumptions about conclusions to which we will never have an
answer. The trial court appears to have relied on same to some degree in
stating: “Uh, the uh, dismissal of the “B” Felony, which has some effect on
that.”
Appellant’s Brief at 7.
We first observe that in order to accept the premise, i.e., that the court identified as an
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aggravator the possibility of a conviction of a dismissed charge, we must lift the trial court’s
comment completely out of context. It is clear that the court referenced the dismissed charge
only to gauge the mitigating weight of the guilty plea. That is, the court discounted
somewhat the mitigating weight of the guilty plea because Sopher benefitted from entering
into the agreement when the class B felony charge was dismissed. Therefore, the plea may
have been motivated as much by pragmatic considerations as an acceptance of responsibility.
As has been frequently observed, “a plea is not necessarily a significant mitigating factor.”
Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005); see also Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005) (“a guilty plea does not rise to the level of significant mitigation where
the defendant has received a substantial benefit from the plea or where the evidence against
him is such that the decision to plead guilty is merely a pragmatic one”), trans. denied.
Be that as it may, the presentation of this issue suffers from the same fatal flaws as the
one rejected above – it is not explained and supported with legal authority; it is merely
asserted as fact. Sopher claims that the State’s comment was “not based on Indiana law,”
Appellant’s Brief at 7, but does not identify the law or laws to which he alludes, nor explain
how the comments ran afoul of those legal principles. The argument is waived. Hogan v.
State, 966 N.E.2d 738.
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2.
Sopher contends his sentence was inappropriate in light of his character and the nature
of his offense. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
1219 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Wilkes v. State, 917 N.E.2d 675, 693
(Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[S]entencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d at 1223. Sopher bears the burden on appeal of persuading us
that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
We begin by considering the nature of the offense. While visiting the home where his
mother was staying, Sopher accessed pornography on that family’s computer and began to
masturbate. When the five-year-old victim walked in on him, he made her touch his erect
penis in order to satisfy his sexual desires. He then threatened his victim that he would do it
to her again in the future. We need not undertake the effort to assess this conduct because
Sopher himself characterizes his actions against the victim as “egregious.” Appellant’s Brief
at 6. Letters from B.M.’s family indicated that she has become fearful and withdrawn since
the molestation.
Turning now to Sopher’s character, the trial court properly found as mitigators that
Sopher was remorseful and that he pled guilty. His apparently sincere remorse is entitled to
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some mitigating weight. The mitigating value of his guilty plea, however, is diminished by
the fact that he benefitted from the agreement. By the age of nineteen, Sopher had
accumulated multiple juvenile adjudications for acts that would constitute the crimes of
criminal recklessness, disorderly conduct, burglary, theft, and battery if committed by an
adult. This reflects poorly on his character. Sopher urges that we should consider as
mitigating his relatively young age, illiteracy, lack of education, and his diagnosis of ADHD
and ADD. It is difficult to understand how, with respect to this particular offense, these
factors either reflect well on his character or diminish his culpability. They are of little-to-no
mitigating value.
Considered in toto, we do not believe the trial court abused the “considerable
deference” accorded to it in determining what Sopher’s sentence should be and thus conclude
that an eight-year sentence for this offense is not inappropriate. See Cardwell v. State, 895
N.E.2d at 1223.
Judgment affirmed.
BROWN, J., and PYLE, J., concur.
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