Kamau I. Campbell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 23 2017, 8:28 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kamau I. Campbell, June 23, 2017
Appellant-Defendant, Court of Appeals Case No.
91A05-1606-CR-1521
v. Appeal from the White Superior
Court
State of Indiana, The Honorable Robert B. Mrzlack,
Appellee-Plaintiff. Judge
Trial Court Cause No.
91D01-1505-F3-49
Mathias, Judge.
[1] Kamau Campbell (“Campbell”) was convicted in White Superior Court of
Level 3 felony robbery, and he was ordered to serve eleven years executed in
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the Department of Correction. Campbell appeals his sentence arguing 1) that
the trial court abused its discretion when it considered the circumstances of the
crime as an aggravating circumstance, and 2) that his eleven-year sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History
[3] On May 13, 2015, Campbell robbed the Wells Fargo Bank in Monticello,
Indiana. During the robbery, he carried a metal bar that he had altered so that it
appeared to be a gun. When Campbell entered the bank, he shouted “this is a
real robbery” and demanded cash from the two bank tellers. Tr. Vol. II pp. 80-
81. He threw a bag and other items from the bank counters at the tellers and
told them to put money in the bag and not to set off the alarm. The tellers
complied and followed Campbell’s instructions as the bank had trained them to
do. The bank manager and the teller running the drive thru, who were not in
the front of the bank, were able to set off their alarms to notify the police that a
robbery was in progress.
[4] After the tellers put money in his bag, Campbell fled from the bank carrying the
bag and the metal bar. Campbell ran toward a wooded area adjacent to nearby
railroad tracks. Campbell was apprehended shortly thereafter by officers from
the Monticello Police Department. When he was searched incident to arrest,
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the officers found a knife in his pocket. The officers also recovered the money
stolen from the bank and a black metal bar.
[5] Campbell was charged with Level 3 felony robbery. In May 2016, a jury trial
was held, and Campbell was convicted as charged.
[6] Campbell’s sentencing hearing was held on June 21, 2016. The four employees
present during the bank robbery gave statements expressing the emotional
trauma and fear they suffered both during and after the robbery. The trial court
considered the employees’ continued trauma as an aggravating circumstance.
The trial court found that Campbell’s lack of criminal history, remorse, and
history of depression were mitigating circumstances. The trial court also
considered that Campbell’s crime seemed to be out of character for him.
However, the trial court concluded that the aggravating circumstance
outweighed the mitigating circumstances and ordered Campbell to serve an
eleven-year sentence executed in the Department of Correction. Campbell now
appeals.
Discussion and Decision
[7] Campbell argues that the trial court abused its discretion when it considered the
continued trauma suffered by the bank tellers as an aggravating circumstance.
He also contends that his eleven-year sentence is inappropriate in light of the
nature of the offense and the character of the offender.
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A. Abuse of Discretion
[8] In its sentencing order, the trial court found “that four bank employees were
emotionally harmed by the Defendant’s actions” to be an aggravating
circumstance. At the sentencing hearing, the court stated:
And unfortunately, you traumatized four bank employees and
probably other customers who were there and in the area at the
time. And at least with the bank employees, they’re going to have
to live with that experience for the rest of their lives. And that’s
something that’s not easy to get over. If you lose your feeling and
safety and trust in human beings, you’re constantly looking over
your shoulder, you’re constantly looking around, you’re
constantly in fear of the unknown. . . . Though its something that
hopefully will pass over time, it probably will never go away.
The fact that four individual employees were at the Wells Fargo
Bank when this took place and were victimized by your actions,
the Court finds that to be an aggravating factor, even though you
were charged with just one robbery.
Tr. Vol. III, pp. 48-49.
[9] Campbell argues that the trial court abused its discretion when it considered the
harm suffered by the bank employees as an aggravating circumstance. See
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (stating that sentencing decisions are within the sound discretion of the trial
court). An abuse of discretion occurs when the trial court’s decision is contrary
to “the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.
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State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its
discretion by
(1) failing to enter a sentencing statement, (2) entering a
sentencing statement that explains reasons for imposing the
sentence but the record does not support the reasons, (3) the
sentencing statement omits reasons that are clearly supported by
the record and advanced for consideration, or (4) the reasons
given in the sentencing statement are improper as a matter of
law.
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012).
[10] Under Indiana Code section 35-38-1-7.1(a)(1), the trial court may consider as
an aggravator whether “[t]he harm, injury, loss, or damage suffered by the
victim . . . was . . . significant [ ] and . . . greater than the elements necessary to
prove the commission of the offense.” See also McCoy v. State, 856 N.E.2d 1259,
1263 (Ind. Ct. App. 2006) (stating that in order to find the nature and
circumstances of the crime to be an aggravating circumstance, the trial court
must point to facts not necessary to establish the elements of the offense). In this
case, Campbell was convicted of Level 3 felony robbery and the charging
information alleged that Campbell “did knowingly or intentionally take
property from . . . Wells Fargo Bank . . . by putting the Wells Fargo Bank
employees in fear while armed with a deadly weapon, to wit: a metal pipe.”
Appellant’s App. p. 23.
[11] Because the State was required to prove that Campbell caused the bank
employees to suffer fear during the robbery, that circumstance cannot be used
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as an aggravating factor. However, the trial court specifically considered the
bank employees’ trauma that they continue to suffer even now, as a result of the
robbery. This finding was supported by the testimony and evidence presented at
the sentencing hearing, and the trial court acted within its discretion when it
considered this aggravating circumstance.
B. Inappropriate Sentence
[12] Campbell also argues that his eleven-year executed sentence is inappropriate in
light of the nature of the offense and the character of the offender. Indiana
Appellate Rule 7(B) provides that “[t]he 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 offender.” In conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). “Such deference 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
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).
Ultimately, our principal role is to leaven the outliers rather than necessarily
achieve what is perceived as the correct result. Cardwell v. State, 895 N.E.2d
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1219, 1225 (Ind. 2008). Campbell bears the burden to establish that his sentence
is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
[13] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
advisory sentence for a level 3 felony is nine years, with a sentencing range of
three to sixteen years. Ind. Code § 35-50-2-5(b). Campbell’s eleven-year
sentence is two more years than the advisory.
[14] There is nothing particularly egregious about the nature of Campbell’s offense.
He quickly robbed the bank armed with a metal bar altered so that it would
appear to be a gun. He yelled at the bank tellers to put money in his duffle bag,
and once that was accomplished he ran out of the bank. When he was arrested,
he had a knife in his pocket, but the knife was not used in the commission of
the robbery. No one was physically harmed during the robbery. However,
Campbell’s crime inflicted emotional injury on the bank employees who
continue to suffer from the stress and trauma of the robbery.
[15] Up to the date that thirty-eight-year-old Campbell chose to rob the bank, he led
a law-abiding life and was a productive member of society. The trial court
observed that Campbell has a bachelor’s degree, he was employed, supported
his family, and helped his siblings by serving as a role model for them. The
court stated “so, the Court is convinced that this type of activity is out of
character for you[.]” Tr. Vol. III, p. 48. Campbell also suffers from depression
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and sought treatment for his depression both before and after he committed the
robbery.
[16] No facts in the record would support a sentence higher than the nine-year
advisory if we were just considering the character of the offender. However,
Campbell’s offense has resulted in on-going emotional trauma for the four bank
employees present during the robbery. Under these facts and circumstances, we
cannot conclude that the trial court’s decision to impose an eleven-year
sentence for this offense is an “outlier” that should be revised under our
constitutional authority to review and revise sentences. See Cardwell, 895 N.E.2d
at 1225. For this reason, we conclude that Campbell has not met his burden of
persuading us that his eleven-year sentence, which is five years less than the
maximum sentence allowed,1 is inappropriate, in light of the nature of the
offense and the character of the offender. See Anglemyer, 868 N.E.2d at 494
(stating the burden is on the defendant to persuade the appellate court that his
or her sentence is inappropriate).
[17] Affirmed.
Kirsch, J., and Altice, J., concur.
1
The impact of a three-year sentence is markedly different from a sixteen-year sentence. It is hard to imagine
a scenario where a three-year sentence would be imposed for an armed bank robbery. For comparison’s sake,
other Level 3 felony offenses include possessing more than twenty-eight grams of methamphetamine, sex
trafficking of a minor, arson if it results in bodily injury to any person, child molesting, and aggravated
battery. See I.C. §§ 35-48-4-6.1, 35-42-3.5-1; 35-43-1-1, 35-42-4-3, 35-42-2-1.5.
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