Marcus J. Schneider v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
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:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
Sep 04 2014, 9:27 am
IN THE
COURT OF APPEALS OF INDIANA
MARCUS J. SCHNEIDER, )
)
Appellant-Defendant, )
)
vs. ) No. 52A02-1402-CR-117
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable Daniel C. Banina, Judge
Cause No. 52D02-1308-FC-178
September 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Following Marcus J. Schneider’s guilty plea to Class D felony residential entry1 and
his admission to habitual offender2 status, the trial court sentenced Schneider to six years
of incarceration. Schneider appeals and asserts that the trial court improperly sentenced
him.
We affirm and remand for correction of the sentencing statement.
FACTS AND PROCEDURAL HISTORY
Schneider and his then-wife, Erica, divorced in January 2012. They have one child
together. In August 2013, Erica and Schneider arranged to meet at a gas station to bring
Schneider’s clothes to him. Erica’s then-boyfriend, Randy, to whom she is now married,
accompanied her to meet Schneider. After their meeting, Erica and Randy went to a local
bar and grill, and Schneider followed them. An altercation ensued, and Schneider was
thrown out of the premises. When Erica and Randy left, Schneider was waiting, and he
followed them to Erica’s home. He tried to enter the home and was refused. Eventually,
he got his foot in the door and entered the home. After a scuffle, Erica and Randy threw
Schneider out onto the porch. The contents of his pockets fell out, including a knife.
Schneider tried to gain entry again, but ran away when Erica called the police. Peru Police
Department Officer Jeremy Brindle apprehended Schneider, who told the officer he had a
1
See Ind. Code § 35-43-2-1.5. We note that, effective July 1, 2014, a new version of this criminal
statute was enacted. Because Schneider committed his crime prior to July 1, 2014, we will apply the statute
in effect at the time he committed his crime.
2
See Ind. Code § 35-50-2-8. Like the residential entry statute, the habitual offender statute was
recodified, effective July 1, 2014, but we apply the statute in effect at the time Schneider committed his
crime in 2013.
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knife in his pocket. Schneider told police nothing had happened and denied having entered
Erica’s house.
Several days later, the State charged Schneider with four counts: (I) Class C felony
intimidation; (II) Class D felony residential entry; (III) Class A misdemeanor battery
resulting in bodily injury; and (IV) Class B misdemeanor criminal mischief. The next day,
the State added a fifth count, alleging Schneider was an habitual offender for having two
prior unrelated felony convictions, one in 2006 for Class D felony auto theft and another
in 2012, also for Class D felony auto theft.
In December 2013, the parties appeared for a change of plea hearing, at which the
trial court was presented with a plea agreement that Schneider had signed. Schneider
pleaded guilty to Count II, Class D felony residential entry and admitted to being an
habitual offender. The plea agreement provided that “sentencing will be left to the
discretion of the court with an agreement for a cap of six years.” Tr. at 22; Appellant’s
App. at 84. The trial court read the charges to Schneider, and in response to each, he
pleaded guilty. The trial court explained the maximum and minimum sentences that
statutorily could be imposed for each conviction. With regard to the habitual offender
finding, the trial court identified the two prior felonies being alleged, and then explained,
“If they prove both those allegations they will have proved the Habitual Offender which
could enhance the sentence up to . . . four and a half years on top of the original charge[.]”
Tr. at 24. Schneider testified and admitted to the two prior felonies. The trial court found
him guilty of the residential entry charge and found the habitual offender count to be true.
Id. at 25. It also dismissed counts I, II, and IV, and dismissed a pending probation violation.
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At the subsequent sentencing hearing, Schneider testified that he was on probation
at the time of the current offense, and the trial court reviewed with Schneider the various
juvenile and adult criminal history convictions appearing in his presentence investigation
report. The trial court identified the following as aggravating factors: (1) Schneider’s prior
criminal record; (2) Schneider was on probation at the time of the offense; (3) he was
carrying a knife; and (4) prior attempts at rehabilitation were unsuccessful, such that
probation was “a disaster.” Id. at 39. The trial court identified as mitigating factors: (1)
Schneider entered a plea of guilty, saving the time and expense of trial; and (2) the mother
of his child was requesting that he not be ordered to serve any incarceration. The trial court
determined that the aggravating circumstances outweighed the mitigating ones, and it
sentenced Schneider to three years in the Department of Correction for residential entry
and three years for the habitual offender finding, for a total of six years executed. Schneider
now appeals.
DISCUSSION AND DECISION
Schneider presents one issue alleging that the trial court improperly sentenced him,
but therein alleges several errors in the trial court’s sentencing, contending that (1) the trial
court abused its discretion when it found as an aggravator that Schneider was carrying a
knife in violation of his probation, (2) the sentence is inappropriate in light of the nature of
the offense and the character of the offender, and (3) the trial court improperly entered a
separate sentence for the habitual offender finding rather than an enhancement of the
residential entry sentence. We address each in turn.
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I. Improper Aggravator
Schneider argues that the trial court abused its discretion when it found that his
possession of a knife3 constituted an aggravating circumstance. Sentencing determinations
are within the trial court’s discretion and will be reversed only for an abuse of discretion.
Baker v. State, 994 N.E.2d 306, 311 (Ind. Ct. App. 2013), trans. denied; see also Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Baker, 994 N.E.2d at 311. A trial court may abuse
its discretion by failing to enter a sentencing statement, entering findings of aggravating
and mitigating factors unsupported by the record, omitting factors clearly supported by the
record and advanced for consideration, or giving reasons that are improper as a matter of
law. Anglemyer, 868 N.E.2d at 490-91. We may review both the written and oral
sentencing statements. Harris v. State, 964 N.E.2d 920, 926 (Ind. Ct. App. 2012), trans.
denied.
Here, in its sentencing statement and during the sentencing hearing, the trial court
identified four aggravating factors: (1) Schneider’s criminal record; (2) he was on
probation at the time of this offense; (3) he was carrying a knife at the time of the incident;
and (4) prior attempts at rehabilitation had failed. Appellant’s App. at 5; Tr. at 39-40. With
regard to the knife, which is the only aggravator being challenged in the appeal, the trial
court stated, “I’m also going to find that it’s in violation . . . that he was carrying a, a knife
3
It is undisputed that the knife was a regular-sized pocket knife.
5
at the time of the offense which is also a violation of his probation.” Tr. at 39. On appeal,
Schneider asserts that, although a pending probation violation was dismissed as part of his
guilty plea agreement, the record contains no evidence of the terms of his probation or the
claimed violation and, consequently, it is not known whether possession of a knife was
precluded as a condition of his probation. Furthermore, he asserts, the record contains no
evidence that Schneider intended to use the knife. For these reasons, Schneider claims the
sentencing statement is not supported by the record and/or the trial court’s reasoning is
improper as a matter of law. Given the record before us, we are not persuaded.
At the sentencing hearing, Schneider told the trial court he was, in fact, on probation
and conceded that he was not supposed to be carrying a knife:
By the Court: And you were on probation at that time?
Schneider: Correct.
By the Court: Then you should not have [had] a knife at all. Correct?
Schneider: Correct.
Tr. at 36. Even if, as Schneider asserts, the trial court did not know the actual terms and
conditions of the probation, and thus whether possession of the knife was a violation of it,
the trial court did hear Schneider admit he was not supposed to be carrying a knife. Also,
contrary to Schneider’s claim that there was no evidence that he intended to use the knife,
Erica told police that Schneider opened the knife after it fell out of his pocket. This was a
deliberate act. Randy heard Erica yell that Schneider had a knife, and Randy pulled her
inside the house. They called the police, and Schneider ran away.
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Even if we were to find that the trial court erred when it identified possession of the
knife as an aggravator, this court has recognized that a single aggravating circumstance
may be sufficient to support the imposition of an enhanced sentence. Flickner v. State, 908
N.E.2d 270, 274 (Ind. Ct. App. 2009). Here, Schneider does not challenge the validity of
the other three stated aggravating factors, namely, his criminal history, being on probation
at the time of the offense, and the fact that prior attempts at rehabilitation had failed. The
two mitigating factors that the trial court identified were that he pleaded guilty and that his
ex-wife did not want the State to seek punishment. The trial court, after reviewing the
aggravators and mitigators, determined, “obviously aggravating outweigh mitigating.” Tr.
at 40. Even excluding the knife as an aggravator, we find no abuse of discretion in the trial
court’s sentencing of Schneider.
II. Appropriateness of Sentence
Schneider pleaded guilty the Class D felony residential entry with a habitual
offender enhancement. The sentencing range for Class D felonies is between six months
and three years, with an advisory sentence of one and one-half years. Ind. Code § 35-50-
2-7. A habitual offender is subject to an additional sentence ranging from the advisory
sentence for the underlying offense to three times that advisory sentence. Ind. Code § 35-
50-2-8(h). Therefore, Schneider faced up to seven and one-half years, but the State agreed
to cap his sentence at six years and to dismiss three counts and a pending probation
violation. Following a sentencing hearing, the trial court sentenced Schneider to three
years of incarceration for the residential entry conviction and three years for the habitual
offender finding. Schneider argues that he “received little benefit” from the plea
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agreement, because his six-year sentence was only one and one-half years shorter than the
maximum possible. Appellant’s Br. at 12. He asks this court to reverse and impose a
sentence of two years on the residential entry conviction enhanced by two years for the
habitual offender finding, arguing that his sentence is inappropriate pursuant to Indiana
Appellate Rule 7(B).4
Appellate courts have the constitutional authority to revise a sentence if, after
consideration of the trial court’s decision, the court concludes the sentence is inappropriate
in light of the nature of the offense and character of the offender. Ind. Appellate Rule 7(B).
A defendant bears the burden of showing both prongs of the inquiry favor revision of his
or her sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (citing
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied. When a defendant
requests appellate review and revision of his sentence, we have the power to affirm, reduce,
or increase the sentence. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting
our review, we do not look to see whether the defendant’s sentence is appropriate or if
another sentence might be more appropriate; rather, the test is whether the sentence is
4
We note that not every sentence that is the product of a plea agreement is subject to Rule 7(B)
review; only if the trial court is exercising discretion in imposing sentence may a defendant then contest on
appeal the merits of that discretion on the grounds that the sentence is inappropriate. Hole v. State, 851
N.E.2d 302, 304 (Ind. 2006). Here, where the plea agreement provided for a sentencing cap, the trial court
was required to exercise discretion in deciding whether to impose the maximum sentence allowed by the
cap, or something less. Therefore, Schneider did not waive his right to contest the merits of that discretion
on grounds that his sentence is inappropriate in light of the nature of the offense and the character of the
offender. Miles v. State, 889 N.E.2d 295, 296 (Ind. 2008) (defendant did not waive appellate sentence
review under invited error doctrine where defense agreed to sixty-five year cap and he was sentenced to
sixty-five years); Childress v. State, 848 N.E.2d 1073, 1078-79 (Ind. 2006) (defendant may challenge
appropriateness of sentence imposed under plea agreement that has sentencing cap or range).
8
inappropriate. Former v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007) (emphasis in
original).
The nature of the offense inquiry compares the defendant’s actions with the required
showing to sustain a conviction under the charged offense. Anderson, 989 N.E.2d at 827.
To convict Schneider of residential entry, the State had to prove that he knowingly or
intentionally broke into and entered Erica’s dwelling. Ind. Code § 35-43-2-1.5. Schneider
claims that he was convicted of entering his ex-wife’s home to discuss discipline concerns
involving their child and concedes that an altercation ensued; however, he contends that
both he and Randy engaged in the altercation and asserts that the record is not clear who
initiated it. Therefore, he argues, the nature of the offense does not warrant the maximum
six-year sentence authorized under the plea agreement. The State maintains that
Schneider’s conduct exceeded the elements of the residential entry statute, and we agree.
According to the record before us, Erica arranged to meet Schneider at a gas station
to give him clothes that belonged to him but that had been left in her possession. After
meeting him, Erica and Randy went to a bar to meet her uncle, pursuant to previous plans.
Schneider followed her, went into the bar, and confronted them at their table; Erica believed
Schneider was going to punch Randy. Eventually, Schneider was kicked out of the bar.
When Erica and Randy later left, Schneider was waiting outside and followed them to
Erica’s home. They denied entry to him, but he pushed open the door and wedged his foot
in the doorway, so they could not shut it. Eventually, he gained entry and a scuffle ensued.
Randy was able to throw Schneider out of the front door, at which time the contents of
Schneider’s pockets emptied, including a pocket knife. Schneider opened it. Meanwhile,
9
Erica had reached police who arrived at the home, and, as they did, Schneider ran way but
was apprehended. He told police nothing had happened, and he denied being inside Erica’s
home.
As to the character of offender, Schneider reminds us that he is the father of three,
possibly four, children, including his son with Erica, and that he expressed remorse for his
misconduct and accepted responsibility by pleading guilty. The contention that he
expressed remorse is debatable; at the sentencing hearing, Schneider admitted that he was
“in the wrong” in the situation, but when asked, “Is this something that would not happen
again?” he replied, “I promise it wouldn’t. It’s not worth all this time.” Tr. at 33.
Schneider acknowledges having a juvenile and adult criminal history, but suggests that the
criminal history, “while lengthy, was relatively minor, given the harshest conviction he
received [w]as a Class D felony.” Appellant’s Br. at 11. We disagree that his criminal
history is relatively minor. Schneider’s repeated encounters with the juvenile justice
system began at age twelve, and he was adjudicated delinquent on at least six occasions.
He has eleven convictions as an adult, four of which are felony convictions. One of those
convictions was felony non-support of a dependent, which as the State notes, “undermines
any assertion that being the father of three or four children reflects positively on his
character.” Appellee’s Br. at 12. According to the presentence investigation report,
Schneider has been placed on probation eleven times, has violated probation seventeen
times, and has never completed an adult probation successfully. The trial court stated, “[I]t
seems like you could never stay out of trouble. You never completed any probation. . . .
[Y]ou’ve been given several opportunities for alcohol and drug rehabilitation and never
10
completed any of them.” Tr. at 39. The probation department reported that Schneider was
not an acceptable candidate for the community corrections program.
We are not persuaded that Schneider’s six-year sentence, which was within the
terms of his plea agreement, is inappropriate in light of the nature of the offense or the
character of the offender.
III. Habitual Offender Sentencing
At the sentencing hearing, the trial court imposed a sentence of three years for the
residential entry conviction and three years for the habitual offender finding, for a total of
six years executed, stating, “[S]o it’s gonna be three years on Count V, that’s running
consecutive to Count II for a total of six years Department of Correction.” Id. at 40. The
subsequent written sentencing statement likewise indicated a three-year sentence “on each
count” and ordered them to “run consecutively.” Appellant’s App. at 34. Schneider argues,
and the State concedes, that the trial court entered a separate three-year sentence for the
habitual offender finding to be served consecutive to the sentence for the residential entry
conviction, rather than a sentence enhancement. Schneider is correct that this was
improper.
A habitual offender finding does not constitute a separate crime, nor does it result
in a separate sentence. See Ind. Code § 35-50-2-8. Rather, a habitual offender finding
results in a sentence enhancement imposed upon the conviction of a subsequent felony.
Harris, 964 N.E.2d at 927 (citing Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind. 2001)).
Therefore, we remand for correction of the sentencing order so that it reflects that the three-
year habitual offender enhancement serves as an enhancement of the Class D felony
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residential entry conviction. See Bauer v. State, 875 N.E.2d 744, 747 (Ind. Ct. App. 2007)
(illustrating remand is appropriate remedy where trial court erroneously treats habitual
offender enhancement as separate sentence), trans. denied.
Affirmed and remanded.
MAY, J., and BAILEY, J., concur.
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