Michael L. Crowe v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
Apr 24 2012, 8:54 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
CLERK
law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK I. COX GREGORY F. ZOELLER
The Mark I. Cox Law Offices, LLC Attorney General of Indiana
Richmond, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL L. CROWE, )
)
Appellant- Defendant, )
)
vs. ) No. 89A01-1108-CR-420
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable David A. Kolger, Judge
Cause Nos. 89C01-0812-FD-130
89C01-1005-FC-10
April 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Michael L. Crowe pleaded guilty to two counts of forgery, Class C felonies, and
one count of receiving stolen property, a Class D felony. Crowe was also convicted by a
jury of theft, a Class D felony. He appeals, raising the sole issue of whether his sentence
of fourteen years in the Indiana Department of Correction is inappropriate. Concluding
that the sentence is not inappropriate, we affirm.
Facts and Procedural History
On November 13, 2008, Crowe received dental care at the office of Dr. Burke. He
signed a form acknowledging that he understood that payment was due at the time the
services were provided. In addition, signs were posted around the office to notify
patients that payment was due when the services were rendered. Crowe’s bill totaled
$140. When payment was due, Crowe told the office staff that his checkbook was in his
car and he needed to get it to pay. He did not return to pay or set up an alternative
method of payment. An office staff member watched Crowe get into his car and drive
away. Other attempts to get payment by mail were unsuccessful because Crowe provided
a false address on his required information form. On December 23, 2008, Crowe was
charged with theft, a Class D felony, in cause number 89C01-0812-FD-130 (“Cause
Number 130”). A jury found him guilty of the charge on July 21, 2011.
In an unrelated incident in December 2009, Crowe was riding in an automobile
with Rita Jones. Crowe took two personal checks from her checkbook without her
permission. The checks belonged to Rita and Jeff Jones. Two days later, Crowe
attempted to cash the checks at two grocery stores in Richmond, Indiana. Crowe signed
the checks using Jeff Jones’s name. Both of these transactions were recorded on
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videotape. In cause number 89C01-1005-FC-010 (“Cause Number 010”), Crowe was
charged with two counts of forgery, Class C felonies, and one count of receiving stolen
property, a Class D felony. He was also alleged to an habitual offender. In June 2011,
Crowe pleaded guilty to all four counts.
Crowe was sentenced for Cause Numbers 130 and 010 in one hearing. As to
Cause Number 130, Crowe was sentenced to one year to be served concurrent to his
sentence in Cause Number 010. In Cause Number 010, Crowe was sentenced to six years
for each count of forgery and two years for receiving stolen property, all to be served
concurrently. In addition, the six-year aggregate sentence was enhanced by eight years
for the habitual offender finding. In total, Crowe was sentenced to fourteen years to be
served in the Department of Correction. Crowe now appeals.
Discussion and Decision
I. Standard of Review
A criminal defendant may challenge his sentence on appeal. Ind. Appellate Rule
7(A). “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.” App. R. 7(B). A reviewing
court “may look to any factors appearing in the record.” Roney v. State, 872 N.E.2d 192,
206 (Ind. Ct. App. 2007), trans. denied. The burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006).
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II. Crowe’s Sentence
Crowe argues his trial court’s sentence is inappropriate “in light of the offense and
the character of the offender.” Appellant’s Brief at 7. Crowe proposes that his sentence
be modified to eight years: one year for theft, four years for the two forgery convictions,
two years for receiving stolen property, all to be served concurrently, enhanced by an
additional four years for the habitual offender finding.
Crowe argues that the sentence is inappropriate with regard to the nature of the
offenses because these crimes did not harm persons or property and because he confessed
to police when he was questioned. While technically true, his offenses did cause, at the
least, a serious, unwarranted inconvenience to the dental office and Rita and Jeff Jones.
The dental office did not receive timely payment for services rendered, which could pose
difficulty for a small business. The fact that Crowe’s unlawful acts did not result in
tangible harm does not mean they are negligible. In any event, we find the sentence is
appropriate in light of his character.
In regards to his character, Crowe presented evidence to suggest that his criminal
history began after he became dependant on prescription medications which led to heroin
use. Crowe stated that he would not have a criminal history had he not become addicted
to drugs. Further, he argues such a long prison sentence would be a hardship on his two
children. Finally, Crowe contends that he expressed remorse and accepted responsibility
for his actions.
In determining Crowe’s sentence, the trial court considered all of the factors which
Crowe now raises. However, it also addressed numerous aggravating factors which it
deemed to outweigh the mitigating factors. In March 2003, Crowe was convicted of
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operating a motor vehicle while intoxicated, a Class A misdemeanor. His sentence was
suspended and he was ordered to go through a drug and alcohol evaluation. In December
2007, Crowe was convicted of identity deception, a Class D felony. He was sentenced to
one and one-half years, but the sentence was suspended. He was placed on probation,
which was revoked six months later. Rather than incarcerating Crowe, the trial court
placed him on probation again and ordered that he complete another drug and alcohol
evaluation. Not quite one year later, Crowe’s probation was revoked again. On
November 25, 2009, Crowe was convicted of burglary and theft. He was sentenced to ten
years, but three years were reduced to probation. The remaining seven years were to be
served on work release. While on work release, Crowe committed a robbery at a
pharmacy in Montgomery, Ohio. He was later convicted in Ohio of robbery and physical
harm, a second degree felony. In summary, Crowe has four felony convictions, one
misdemeanor conviction, and two probation revocations.
The trial court stated Crowe “has been treated with kid gloves for [his] entire
criminal history and it has not worked.” Tr. at 217. He has been given a number of
opportunities to change his behaviors, including probation and work release, but has not
taken advantage of them. His probation has been revoked twice and he continued to
commit crimes while on work release. In addition, Crowe has been ordered to complete
drug and alcohol evaluations twice and has continued using drugs. We agree with the
trial court that Crowe is not likely to respond affirmatively to probation or short-term
imprisonment. The trial court stated “that [Crowe] has been given lenient sentences all
along and they’ve not dissuaded [him] from engaging in criminal conduct.” Tr. at 220.
Crowe has been given a number of opportunities by the trial courts to turn his life around
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to no avail. We therefore conclude that the nature of his character does not warrant a
lesser sentence. Crowe has not met his burden of persuading us that his fourteen-year
sentence is inappropriate in light of the nature of his offenses and his character.
Conclusion
Based on the foregoing, we conclude that Crowe’s fourteen-year sentence is not
inappropriate, and therefore we affirm.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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