John M. Gresko v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Nov 21 2014, 8:50 am
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:
JEREMY K. NIX GREGORY F. ZOELLER
Matheny, Hahn, Denham & Nix, LLP Attorney General of Indiana
Huntington, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN M. GRESKO., )
)
Appellant-Defendant, )
)
vs. ) No. 90A04-1404-CR-196
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS COUNTY CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1210-FD-82
November 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
John M. Gresko (“Gresko”) appeals his conviction and sentence for Escape, a Class
D felony.1 We affirm.
Issues
Gresko presents two issues for review:
I. Whether sufficient evidence supports his conviction; and
II. Whether his sentence is inappropriate.
Facts and Procedural History
Having been convicted of being a Habitual Traffic Violator (“HTV”), on March 8,
2012, Gresko signed a contract governing his court-ordered participation in the Wells
County Community Corrections (“WCCC”) program. Pursuant to the contract, Gresko
was to remain at his residence unless given permission to leave by WCCC staff. Weekly
schedules were drafted in advance; changes could be authorized by telephone.
On September 26, 2012, at around 7:00 p.m., WCCC home detention officer Robert
Frantz (“Frantz”) went to Gresko’s residence to do a routine check. Frantz noticed that,
when he pulled into the driveway, there was no signal from Gresko’s electronic monitoring
bracelet indicating his presence at the residence. Frantz spoke with Gresko’s sister, who
stated that Gresko was at work. Frantz asked if Gresko had obtained employment and
Gresko’s sister then said that Gresko had gone to obtain medicine for a family member.
1
Ind. Code § 35-44.1-3-4(b) (2012). This offense is now a Level 4, 5, or 6 felony. We refer to the version
of the statute in effect at the time of Gresko’s crime.
2
Frantz contacted his supervisor and three WCCC case managers to inquire whether
any of them had given Gresko permission to be absent from his residence. Each advised
Frantz that they had not done so. Frantz ran a computer check on Gresko’s electronic
monitoring device and located Gresko at an apartment complex.
On October 4, 2012, the State charged Gresko with Escape by knowingly or
intentionally violating a home detention order. At the conclusion of a jury trial, Gresko
was convicted as charged. He was sentenced to three years imprisonment. He now appeals.
Discussion and Decision
Sufficiency of the Evidence
The State alleged that Gresko committed Escape by knowingly or intentionally
violating a home detention order. I.C. § 35-44.1-3-4(b); App. 9. Gresko claims that,
although he admittedly was absent from his residence, the State failed to establish the
requisite criminal intent.
The standard by which we review alleged insufficiency of the evidence to support a
criminal conviction is well-settled:
When reviewing the sufficiency of the evidence to support a conviction,
“appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict.” McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005) (emphasis added). It is the fact-finder’s role, not that of appellate
courts, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Wright v. State, 828 N.E.2d
904 (Ind. 2005). To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it “most favorably
to the trial court’s ruling.” Id. Appellate courts affirm the conviction unless
“no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
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2000) (emphasis added). It is therefore not necessary that the evidence
“overcome every reasonable hypothesis of innocence.” Moore v. State, 652
N.E.2d 53, 55 (Ind. 1995). “[T]he evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Pickens v. State, 751
N.E.2d 331, 334 (Ind. Ct. App. 2001).
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).
Pursuant to Indiana Code Section 35-41-2-2, a person engages in conduct
“intentionally” if, when he engages in the conduct, it is his conscious objective to do so.
He engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a
high probability that he is doing so. “Intent is a mental function and, absent an admission,
it must be determined from a person’s conduct and the natural consequences of such
conduct.” Mills v. State, 512 N.E.2d 846, 848 (Ind. 1987).
Frantz testified to the following. He went to Gresko’s residence to do a routine
check, found that Gresko was not there, and was given conflicting explanations for
Gresko’s absence. Frantz then called his supervisor Scott Turmail (“Turmail”), who
advised that Gresko’s schedule had not been changed. At Turmail’s direction, Frantz called
WCCC case managers Lorraine Mettler (“Mettler”), Missy Smith (“Smith”), and Mike
Gerwig (“Gerwig”) to determine if a change had been authorized via telephone
communication. Frantz received information that none of them had changed Gresko’s
schedule and reported back to Turmail. Frantz then ran a computer check and located
Gresko at an apartment complex. Frantz later communicated with Gresko, who claimed
that Smith had approved a schedule change.
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Smith testified and denied that she gave Gresko permission to be out at 7:00 p.m.
Her examination of Gresko’s schedule indicated he might be attending school “but other
than that nothing.” (Tr. 25.) Mettler, Turmail, and Gerwig also testified, each denying
having given Gresko permission to be absent from home on the date in question. Finally,
Gresko testified and acknowledged having made the statement to Frantz: “I did not call in
before I left my house and know I should have called to have it approved.” (Tr. 40.) This
is sufficient evidence from which the jury could conclude that Gresko acted knowingly or
intentionally when he violated a home detention order.
Sentencing
Upon conviction of a Class D felony, Gresko was subject to a sentence of between
six months and three years, with one and one-half years as the advisory term. I.C. § 35-
50-2-7.2 As such, Gresko received a maximum sentence. When imposing this sentence,
the trial court found Gresko’s criminal history and his violation of parole to be aggravators,
and recognized no mitigators.
The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B), which provides: “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
2
This statutory provision was modified, effective July 1, 2014, to include the penalty for level 6 felonies.
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offender.” In performing our review, we assess “the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal
role of such review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must
persuade the appellate court that his or her sentence has met th[e] inappropriateness
standard of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
The nature of Gresko’s offense is that he violated a term of his home detention by
leaving his residence without permission. Because of Gresko’s unauthorized absence, it
became incumbent upon Gresko’s sister to communicate with the WCCC home detention
officer.
Gresko has a substantial criminal history. He has prior felony convictions for
Robbery and being a HTV. He has several misdemeanor convictions, including those for
Check Deception, Possession of Marijuana, and Operating a Vehicle Without a License.
He also has a HTV conviction as a misdemeanor. He has violated the terms of his parole,
probation, and community corrections placement. Gresko’s history indicates an inability
to benefit from rehabilitative efforts short of incarceration.
Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant
appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial
court.
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Conclusion
Gresko’s conviction for Escape is supported by sufficient evidence. His three-year
sentence is not inappropriate.
Affirmed.
NAJAM, J., and PYLE, J., concur.
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