Ronald E. Voelker, Jr. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 02 2020, 8:32 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald E. Voelker, Jr., April 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2141
v. Appeal from the Harrison Superior
Court
State of Indiana, The Honorable Joseph L.
Appellee-Plaintiff. Claypool, Judge
Trial Court Cause No.
31D01-1806-F6-441
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2141 | April 2, 2020 Page 1 of 6
Statement of the Case
[1] Ronald E. Voelker, Jr., appeals the sentence the trial court imposed after he
pleaded guilty to escape, a Level 6 felony. We affirm.
Issue
[2] Voelker raises one issue, which we restate as: whether his sentence is
inappropriate in light of the nature of the offense and his character.
Facts and Procedural History
[3] Voelker was serving a sentence under the supervision of a community
corrections program. The conditions of the program included wearing a
monitoring device and attending a weekly appointment with a community
corrections officer.
[4] On June 7, 2018, Voelker was scheduled to appear for an appointment, but he
called to inform the officer that he would be late. He called back later that day
to say he would not appear. GPS tracking data from his monitoring device
showed that Voelker went to Louisville, Kentucky. A warrant was issued for
his arrest, and he was apprehended at a hotel. Voelker later admitted that while
he was in Louisville, he took a ride on the “Belle of Louisville.” Tr. Vol. 2, p.
6.
[5] On June 28, 2018, the State charged Voelker with escape, a Level 6 felony. On
July 26, 2019, Voelker pleaded guilty pursuant to a “blind plea agreement,”
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which did not include an agreement as to sentence. Appellant’s App. p. 64.
The trial court took the plea agreement under advisement.
[6] During an August 14, 2019 hearing, the trial court accepted Voelker’s plea
agreement and sentenced him to serve one year in jail. This appeal followed.
Discussion and Decision
[7] Voelker argues that his one-year sentence is inappropriate and asks the Court to
reduce it to eight months. Although a trial court may have acted within its
lawful discretion in imposing a sentence, article VII, section 6 of the Indiana
Constitution authorizes this Court to independently review and revise
sentences. This authority is implemented through Indiana Appellate Rule 7(B),
which provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we determine that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
[8] When reviewing the appropriateness of a sentence, “we must and should
exercise deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give ‘due consideration’ to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007). Such deference to the trial court’s judgment should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
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defendant’s character (such as substantial virtuous traits or persistent examples
of good character). Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
appellant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[9] The advisory sentence is the starting point that the legislature has selected as an
appropriate sentence for the crime committed. Carter v. State, 31 N.E.3d 17, 32
(Ind. Ct. App. 2015), trans. denied. At the time Voelker committed his offense,
the advisory sentence for a Level 6 felony was one and one-half years, with a
maximum sentence of two and one-half years and a minimum sentence of six
months. Ind. Code § 35-50-2-7 (2016). The trial court sentenced Voelker to one
year, to be served in the county jail.
[10] Turning to the nature of the offense, Voelker told his community corrections
supervisor that he would be late to an appointment, and then later informed the
officer he would skip the appointment, before going to Louisville. During
sentencing, Voelker admitted he knew that he was violating a term of probation
when he skipped the appointment.
[11] Voelker later claimed he had left town because he needed a place to detoxify
from the effects of methadone treatments, but he did not explain why he could
not have stayed at home, or why he could not have asked the community
corrections officer to reschedule his appointment. Voelker also claims he had
spoken with his attorney before leaving town, and his attorney told him he
would not be arrested for skipping an appointment if he did not cut off his
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monitor. Considering Voelker’s substantial criminal history, which we discuss
below, and his admission that he knew he was violating the terms of his
probation by skipping an appointment and leaving town, his claim that he was
misled is entitled to little weight.
[12] As for the character of the offender, Voelker, who was forty-seven years old at
sentencing, concedes he has a lengthy criminal history. He has four prior
felony convictions: possession of a narcotic drug, possession of a syringe,
criminal confinement, and possession of marijuana. In addition, Voelker has
prior misdemeanor convictions for theft, possession of marijuana (2 counts),
battery, false informing, check deception, criminal conversion, and escape. It is
noteworthy that this is his second conviction of escape. Voelker accumulated
his convictions from 1993 to 2002 and from 2010 to present, demonstrating a
long-term refusal to conform to the law. In addition, during the sentencing
hearing in this case, Voelker was facing a pending charge of driving while
suspended, a Class A misdemeanor.
[13] Voelker argues that his convictions were related to, or caused by, his lifelong
addiction to various controlled substances. While this may be true, a history of
consuming controlled substances can be a negative sentencing factor. See Healey
v. State, 969 N.E.2d 607, 617 (Ind. Ct. App. 2012) (identifying history of
consuming controlled substances as a potential aggravating factor), trans. denied.
In addition, the record demonstrates that in the past, Voelker attended a
substance abuse treatment program on at least two occasions (one of them
court-ordered), and he failed to comply with the programs’ requirements.
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[14] Voelker further claims that he had begun turning his life around at the time of
his arrest by complying with a methadone treatment program and by
maintaining a job. Recent improvements do not necessarily outweigh his
lengthy criminal record and prior failures to reform. Voelker has failed to
demonstrate that his sentence, which was already below the statutory advisory
sentence, is an outlier that should be further reduced.
Conclusion
[15] For the reasons stated above, we affirm the judgment of the trial court.
[16] Affirmed.
Bradford, C.J., and Kirsch, J., concur.
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