Bobby L. Peck v. State of Indiana (mem. dec.) ( 2021 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 19 2021, 8:55 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
Arturo Rodriguez II Theodore E. Rokita
Lafayette, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bobby L. Peck, January 19, 2021
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1583
v. Appeal from the Warren Circuit
Court
State of Indiana, The Honorable Hunter Reece,
Appellee-Plaintiff. Judge
Trial Court Cause No.
86C01-1904-F6-36
Altice, Judge.
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Case Summary
[1] Following his guilty plea to two counts of Level 6 felony identity deception and
his admission to being a habitual offender, Bobby Peck appeals his aggregate
four-year executed sentence. He asserts that his sentence is inappropriate in
light of the nature of the offenses and his character.
[2] We affirm.
Facts & Procedural History
[3] On April 22, 2019, a trooper with the Indiana State Police stopped a vehicle,
later determined to be driven by Peck, on U.S. Highway 41 for speeding. The
trooper approached and, while speaking to Peck, smelled what he recognized to
be marijuana. At the trooper’s request, Peck and the passenger exited the
vehicle. During a search of the vehicle, the trooper found five driver’s licenses
bearing the name of Douglas Grant and two bearing the name of Christopher
Simmons, with each having a separate license number. Peck’s photo was on
them all. The trooper also found checks and a prepaid debit card in Grant’s
name and two checks in Simmons’s name. Additionally, the trooper found
twenty-eight counterfeit twenty-dollar bills. The trooper ran a computer check
on the driver’s licenses and learned they were fake.
[4] On April 29, 2019, the State charged Peck with Level 6 felony identity
deception, Level 6 felony synthetic identity deception, and two counts of Class
A misdemeanor false government identification. On April 10, 2020, the State
filed a notice of enhancement, alleging that Peck was a habitual offender, based
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on three prior convictions: a September 1980 Class B felony rape; a September
1986 murder; and a November 2017 conviction in Michigan for stealing a
financial transaction device.
[5] On July 1, 2020, Peck pled guilty to the two Level 6 felony counts of identity
deception and admitted to being a habitual offender, and the State dismissed
the remaining charges. The sentencing terms were left open to the trial court’s
discretion, other than that Peck’s enhancement on the habitual offender was set
at two years and that the sentences on each of the two felonies would run
concurrent with each other and concurrent to his sentence on a federal
counterfeiting case that was pending in the Western District of North Carolina.
The next day, the court accepted the guilty plea and set the sentencing hearing
for July 29, 2020.
[6] At the sentencing hearing, the court acknowledged having received and
reviewed the presentence investigation report. Peck apologized for his
wrongdoing and indicated his acceptance of responsibility. In its sentencing
statement, the court found Peck’s history of criminal or delinquent behavior to
be an aggravating circumstance, as well as the fact that Peck “recently violated
conditions of probation, parole, pardon, community corrections, and placement
or pretrial release[.]” Appellant’s Appendix at 54. The court found as mitigating
that Peck entered a plea of guilty “which shows remorse and accountability”
and that he did not cause or threaten bodily harm. Id. The court sentenced
Peck to two years on each of the two Level 6 felonies, to be served
concurrently, and enhanced his sentence by two years for the habitual offender
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finding, for a total sentence of four years to be served at the Indiana
Department of Correction (DOC). Peck now appeals.
Discussion & Decision
[7] Peck asserts that the four-year sentence is inappropriate and asks us to revise his
sentence to a shorter executed term so that he can obtain needed mental health
treatment that would be available to him on probation. Pursuant to Ind.
Appellate Rule 7(B), we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offenses and the character of the offender. Indiana’s
flexible sentencing scheme allows trial courts to tailor an appropriate sentence
to the circumstances presented, and deference to the trial court “prevail[s]
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 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 principal role of appellate review should be to attempt to
leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The burden is on the
defendant to persuade us his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[8] As to the nature of the offense, the advisory sentence is the starting point the
Legislature has selected as an appropriate sentence for the crime committed. Id.Court of Appeals of Indiana | Memorandum Decision 20A-CR-1583 | January 19, 2021 Page 4 of 8
at 1081. For each of his Level 6 felony convictions, Peck faced between six
months and two and one-half years, with the advisory sentence being one year.
Ind. Code § 35-50-2-7(b). Here, the trial court imposed two years on each of
Peck’s two convictions, to be served concurrently, and it entered the agreed
upon two-year enhancement, 1 for an aggregate four-year sentence.
[9] As this court has recognized, “[t]he nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Peck
argues that there is nothing particularly egregious about the nature of the
offenses, noting that he was only stopped for speeding and was cooperative
with the trooper, and that “the record does not show that that there was any
harm to anyone in these crimes.” Appellant’s Brief at 10. However, Peck was
found with seven fake licenses, as well as checks and a debit card, that he
admitted he intended to use. While that did not cause physical harm to Grant
or Simmons, it certainly could have caused – and may indeed have caused –
significant grief or financial harm to them. Peck has not established that the
nature of the offenses warrants reduction of the trial court’s sentence.
[10] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 952 N.E.2d at 664. When considering the character of the
1
But for the plea agreement, the court could have imposed up to an additional six years for Peck’s status as a
habitual offender. I.C. § 35-50-2-8(i)(2) (stating range is two to six years for person convicted of Level 5 or
Level 6 felony).
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offender, “‘one relevant fact is the defendant’s criminal history,’ and ‘[t]he
significance of criminal history varies based on the gravity, nature, and number
of prior offenses in relation to the current offense.’” Sanders v. State, 71 N.E.3d
839, 844 (Ind. Ct. App. 2017) (quoting Garcia v. State, 47 N.E.3d 1249, 1251
(Ind. Ct. App. 2015), trans. denied), trans. denied. The trial court may consider
not only the defendant’s adult criminal history but also his juvenile delinquency
record in determining whether his criminal history is significant. Id.[11] Peck began having encounters with the juvenile system when he was eleven or
twelve years old, facing charges of, among other things, what would be theft,
fraud, disorderly conduct, auto theft, and robbery if committed as an adult. He
was committed for a period of time to the Indiana Boys’ School. Thereafter,
while on supervised probation, he faced charges of, among other things, assault,
possession of a weapon, truancy, and theft. He was committed to other
placements and was eventually paroled from the Boys’ School in September
1979. In January 1980, he was arrested for rape and waived to adult court,
where he was convicted of Class B felony rape and sentenced to ten years in the
DOC, which sentence was later modified to six years. He was released from
parole in January 1986.
[12] In June 1986, he committed a murder. He pled guilty and was sentenced in
September 1986 to sixty years in the DOC. He reported in his presentence
investigation report to spending fourteen years in solitary confinement due to
disciplinary problems. He was discharged to parole in December 2015 and then
released from parole in December 2016.
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[13] A string of deception-type crimes ensued. In November 2017, he pled guilty to
Class A misdemeanor false government identification, was sentenced to one
year, with thirty-six days to be executed, and the balance was suspended to
probation. In July 2017, he pled guilty to a Michigan felony offense for stealing
a financial transaction device. In June 2018, he pled guilty to Level 6 forgery
that occurred in July 2017. He was sentenced to one and one-half years, served
thirty days, and the balance was suspended to probation, which he then
violated. In November 2017, he was convicted of misdemeanor false
government identification. While on probation, he committed the present
offenses in April 2019. While out on bond in this case, he committed another
offense, misdemeanor reckless driving.
[14] Peck acknowledges having a significant criminal history but maintains that “it
is clear” that he “needs mental health rehabilitation” and that “mere
incarceration fails to solve [his] mental health issues.” Appellant’s Brief at 11.
Thus far, Peck’s mental health issues are self-diagnosed, with him reporting that
he suffers from PTSD due to all the years in prison. He previously reported the
following observation about himself to a probation officer: “After being locked
up for 29 years, yes, I am f*cked up, but I do not know to what degree.”
Appellant’s Appendix at 51. While we hope that Peck ultimately will seek and
obtain the treatment and support he needs, we cannot agree that the sentence
imposed by the trial court was inappropriate. Peck’s long and serious criminal
history and his reported disciplinary issues while incarcerated reflect poorly on
his character and do not support any sentence revision. We also agree with the
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State that, even if we were to give “low significance to [Peck]’s past rape and
murder convictions, his multiple recent fraud/property convictions are directly
related to the present convictions and are highly reflective of his poor
character.” Appellee’s Brief at 10.
[15] Our task on appeal is not to determine whether another sentence might be more
appropriate; rather, the inquiry is whether the imposed sentence is
inappropriate. Miller v. State, 105 N.E.3d 194, 196 (Ind. Ct. App. 2018); Barker
v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Peck has failed
to carry his burden of establishing that his sentence is inappropriate in light of
the nature of the offenses and his character.
[16] Judgment affirmed.
Mathias, J. and Weissmann, J., concur.
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