David W. Burget 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
Dec 08 2020, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Anthony S. Churchward, P.C.
Josiah Swinney
Fort Wayne, Indiana Deputy Attorney General
Bernard Lobermann
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David W. Burget, December 8, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-999
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-2001-F3-2
Weissmann, Judge.
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[1] David Burget appeals the thirty-six-year sentence imposed by the trial court
after he was found guilty, as an habitual offender, of Level 3 felony criminal
confinement, Level 5 felony intimidation, and Level 6 felony strangulation.
Burget argues the sentence is inappropriate in light of the nature of the offenses
and his character. Given the terrorizing nature of Burget’s crimes, the
underlying betrayal in his conduct, and his criminal history, we find the
sentence not inappropriate and affirm.
Facts
[2] Burget was kicked out of his brother’s home and found sanctuary with Patricia
Justice, a childhood friend with whom he had recently reacquainted. Tr. Vol. II
pp. 32-34. Justice agreed that Burget could temporarily stay with her, but she
soon caught Burget smoking “crack” cocaine in her living room and ordered
him to leave. Id. at 34-36. Burget responded violently, grabbing Justice by the
throat, slamming her against a wall, and strangling her on the floor. Id. at 36-37,
40. He then held a knife to Justice’s neck and taunted, “I’m just gonna slit your
throat[,] bitch.” Id. at 40. Justice begged for her life until Burget finally released
his grip. Id. But Justice’s ordeal was not yet over.
[3] For the next two hours, Burget held Justice captive in and around her home
while he continued to smoke crack cocaine. Id. at 42. During this time, Burget
told Justice he would “gut” her if she fought back and kill her if she tried to flee.
Id. at 42-43. Burget also warned Justice not to call 911, threatening to kill
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anyone who came to her aid. Id. at 42. Eventually, Justice managed to escape
when Burget took her to a nearby motel to acquire more drugs. Id. at 47-49.
[4] The State charged Burget with one count each of Level 3 felony criminal
confinement, Level 5 felony intimidation, and Level 6 felony strangulation.
Appellant’s App. Vol. II pp. 13-18. A jury convicted Burget on all counts and
determined he was an habitual offender. Id. at 43, 150.
[5] The trial court sentenced Burget to sixteen years for criminal confinement,
enhanced by twenty years for Burget’s habitual offender status. Id. The trial
court also sentenced Burget to concurrent terms of five years for intimidation
and two years for strangulation, yielding a net sentence of thirty-six years. Id.
Burget now appeals.
Discussion and Decision
[6] Burget seeks relief under Indiana Appellate Rule 7(B), arguing the sentence
imposed by the trial court is inappropriate in light of the nature of the offenses
and his character. In reviewing the appropriateness of a sentence, our “principal
role . . . is to attempt to leaven the outliers . . . not to achieve a perceived
‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (internal
citations and quotations omitted). Accordingly, we give “substantial deference”
and “due consideration” to the trial court’s sentencing decision. Id.[7] With respect to the nature of the offenses, Burget terrorized Justice for hours
after she graciously sheltered him in her home. Burget slammed Justice against
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a wall, strangled her, held a knife to her throat, and threatened to gut her if she
tried to escape. Although Justice emerged from the ordeal without any major
physical injuries, she suffers deeply embedded emotional trauma. Tr. Vol. II pp.
50, 182. Perhaps most notably, Justice can no longer associate with some of her
longstanding friends out of fear that they, too, might attack her. Id. at 182.
[8] Burget acknowledges the severity of his offenses but claims they do not justify
the maximum sentence permitted by law. Yet, the thirty-six-year
sentence imposed by the trial court was four years less than the maximum
sentence Burget faced for his Level 3 felony conviction with an habitual
offender enhancement. See Ind. Code §§ 35-50-1-2-(d)(4), -2-8-(i)(1). We are
unmoved as a result.
[9] As to Burget’s character, his presentence investigation report reveals thirteen
prior felony and fourteen prior misdemeanor convictions. Appellant’s App. Vol.
II pp. 138-43. These include convictions on three counts of Class C felony
burglary, two counts of Class D felony possession of cocaine, two counts of
Class A misdemeanor possession of paraphernalia, and four counts of operating
while intoxicated—one as a Class D felony and three as Class A misdemeanors.
Id. Burget has had suspended sentences revoked on three occasions, probation
revoked twice, and parole revoked once. Id. He also has been deemed a
“[h]igh” risk to re-offend. Id. at 145.
[10] The crux of Burget’s character argument is that, notwithstanding his three
burglary convictions, his criminal history consists mostly of non-violent drug
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crimes that are unlike the violent crimes for which he has been sentenced.
Burget glosses over his history of substance abuse and ignores the role illegal
drug use played in his confinement, intimidation, and strangulation of Justice.
[11] Despite Burget’s drug-related convictions and his participation in seven separate
substance abuse treatment programs, Burget has regularly used cocaine since
age thirty-two and was using it twice per week in advance of his crimes. Id.
When Burget was given shelter in a time of need, he violated Justice’s trust by
smoking crack cocaine in her home. Then, after strangling and intimidating
Justice, Burget confined her while he continued to use illegal drugs. And it was
only when Burget sought out more drugs that Justice was able to escape.
[12] Considering Burget’s criminal history and his torment of a welcoming friend,
we find the aggregate thirty-six-year sentence imposed by the trial court is not
inappropriate in light of the nature of the offenses and Burget’s character.
[13] The judgment of the trial court is affirmed.
Mathias, J., and Altice, J., concur.
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