Ryan Sizemore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
May 24 2016, 9:15 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Jerry T. Drook Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ryan Sizemore, May 24, 2016
Appellant-Defendant, Court of Appeals Case No.
27A02-1511-CR-1918
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff. Kenworthy, Judge
Trial Court Cause No.
27D02-1505-F6-193
Bradford, Judge.
Case Summary
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[1] In May of 2015, Appellant-Defendant Ryan Sizemore engaged in a series of
verbal and physical disputes with his then-girlfriend. As a result of Sizemore’s
actions during these disputes, Appellee-Plaintiff the State of Indiana (the
“State”) subsequently charged Sizemore with Level 4 felony possession of a
firearm by a serious violent felon, Level 6 felony residential entry, Level 6
felony domestic battery in the presence of a child, Level 6 felony neglect of a
dependent, and two counts of Class A misdemeanor invasion of privacy.
[2] On August 18, 2015, the morning that his trial was scheduled to begin,
Sizemore pled guilty as charged. In exchange for Sizemore’s guilty plea, the
State agreed that it would not request consecutive sentences. The trial court
subsequently accepted Sizemore’s guilty plea and sentenced him to an
aggregate term of twelve years. Sizemore contends on appeal that the trial
court abused its discretion in sentencing him. Concluding otherwise, we affirm.
Facts and Procedural History
[3] On May 22, 2015, Jeff Hartman, his girlfriend Kimberly Troy, and Carolyn
Duncil went to Duncil’s apartment so that Duncil could tend to her dog.
Hartman and Troy waited outside while Duncil went into the apartment.
While Duncil was inside the apartment, Sizemore—who was Duncil’s
boyfriend—ran into the apartment. After Sizemore had entered the apartment,
Hartman and Troy heard screaming coming from inside the apartment.
Hartman went to the door to investigate. He was met at the door by Sizemore
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who repeatedly stated that Duncil was not leaving. Hartman and Troy
implored Sizemore to let Duncil leave.
[4] After more arguing between Sizemore and Duncil and repeated requests from
Hartman and Troy for Sizemore to let Duncil leave, Duncil and Sizemore came
to the door. Sizemore again reiterated that Duncil was not leaving. When
Troy threatened to call the police if Sizemore did not allow Duncil to leave the
apartment, Sizemore pulled up his shirt to show that he had a pistol in his
waistband and said, “If I go I’m taking everyone with me.” Tr. p. 23. About
ten minutes later, Sizemore relented and allowed Duncil to leave the apartment.
[5] Duncil, Hartman, and Troy left in Hartman’s truck and began to make their
way to Troy’s residence. While in route to Troy’s residence, Duncil became
sick and Hartman had to pull the truck to the side of the road to allow Duncil to
vomit. The trio “took off” after they noticed Sizemore approaching Hartman’s
truck on a bicycle. Tr. p. 24. As they continued towards Troy’s residence, the
trio stopped and purchased a blanket for Duncil from a local store. Upon
arriving at Troy’s residence, Hartman stayed at the residence and Duncil and
Troy left in Hartman’s truck.
[6] Soon thereafter, Hartman saw Sizemore approaching the residence on a bicycle.
While standing on the sidewalk in front of Troy’s residence, Sizemore told
Hartman that he was “waiting” on Duncil and Troy. Tr. p. 24. Sizemore was
still waiting when Troy and Duncil returned. Troy parked Hartman’s truck in
her driveway and she and Duncil ran in the back door of her residence.
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However, before Hartman could close the door behind them, Sizemore “put his
foot between the door and the doorjamb” so that Hartman could not close it
completely. Tr. p. 25.
[7] Sizemore yelled that he wanted to talk to Duncil. Duncil initially refused, but
after about fifteen minutes of continued yelling and arguing, Duncil met
Sizemore on Troy’s front porch. Before long, Duncil and Sizemore were
yelling at each other. Hartman came to the front porch and instructed
Sizemore to leave. Sizemore responded by getting “nose to nose” with
Hartman, asking him “Do you know who you’re … f-ing with?” Tr. p. 25.
Duncil escorted Sizemore off the porch to the sidewalk. Sizemore then pulled
out a “blue, anodized” pistol, pointed it at Hartman, and again asked Hartman
“Do you know who you’re f-ing with?” Tr. p. 25. Hartman, who had seen
Sizemore with that particular pistol on multiple occasions, then called 911.
Sizemore then fled to a local restaurant. Later that evening, the responding
officer made contact with Sizemore and told him “to stay away for the night.”
Tr. p. 28.
[8] The next day, Hartman, Troy, Duncil, and others—including Duncil’s and
Sizemore’s three-year-old daughter, Tazra, and Hartman’s one-and-a-half-year-
old son, Kyden—were at Troy’s residence preparing to go to a picnic. Sizemore
approached the residence, again on a bicycle; walked into the residence, and
talked to Duncil. Sizemore demanded that Duncil leave with him. Duncil
refused and ran out the back door of the residence. Once outside, Duncil
picked up Tazra. Sizemore came out of the residence and attempted to
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“forcefully grab” Duncil to make her come with him. Tr. p. 30. When Shawna
Bryant, another person who happened to be at Troy’s residence, protested,
Sizemore “forcefully pushed her against the trunk” of Hartman’s vehicle. Tr. p.
30. Sizemore then grabbed Duncil, who was still holding Tazra, and pulled her
down the street.
[9] “[A]bout three-quarters of the way down the block,” Sizemore began hitting
Duncil, who again was still holding Tazra, with a closed fist. Tr. p. 30.
Hartman again called 911. Hartman and some of the other people at Troy’s
residence then pursued Sizemore, who had stopped striking Duncil and had fled
down an alley. Duncil later found Sizemore’s pistol in a burn barrel in the
alley. Hartman and another man retrieved the pistol from the barrel and gave it
to Duncil. Duncil subsequently gave the pistol to Sizemore’s mother.
Sizemore was later arrested and a no-contact order relating to Duncil was put in
place.
[10] On May 27, 2015, the State charged Sizemore with Level 6 felony residential
entry, Level 6 felony domestic battery in the presence of a child, and Level 6
felony neglect of a dependent. On June 29, 2015, the State amended the
charging information to include a charge of Level 4 felony unlawful possession
of a firearm by a serious violent felon. The State subsequently amended the
charging information a second time on August 5, 2015, to include two counts of
Class A misdemeanor invasion of privacy. Sizemore remained in custody while
awaiting trial.
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[11] While in custody, Sizemore made 726 calls to Duncil in violation of the no-
contact order. During the relatively few calls in which he successfully made
contact with Duncil, Sizemore instructed her not to appear at his trial, told her
that she would not get in trouble if she did not appear, indicated that she should
contact the prosecutor and recant her statement, and indicated that she should
convince Hartman and Troy to recant their statements regarding the events in
question. Sizemore also told Duncil that she should tell the Department of
Child Services that his conduct was not as serious as the witnesses said it was.
[12] On the morning of August 18, 2015, the date Sizemore’s trial was scheduled to
begin, Sizemore pled guilty to each of the charged offenses. In exchange for
Sizemore’s guilty plea, the State agreed that it would not request consecutive
sentences. The trial court subsequently sentenced Sizemore to an aggregate
term of twelve years. This appeal follows.
Discussion and Decision
[13] On appeal, Sizemore contends that the trial court abused its discretion in
sentencing him. Sentencing decisions rest within the sound discretion of the
trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on
reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. (quotation omitted).
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One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence-including a finding of aggravating and
mitigating factors if any-but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490-91.
[14] In challenging the trial court’s sentencing order, Sizemore claims that the trial
court abused its discretion by failing to consider certain proffered mitigating
factors. The finding of mitigating factors is discretionary with the trial court.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535
N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the
presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).
Further, the trial court is not required to weigh or credit the mitigating evidence
the way appellant suggests it should be credited or weighed. Id. (citing
Hammons v. State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if the trial
court does not find the existence of a mitigating factor after it has been argued
by counsel, the trial court is not obligated to explain why it has found that the
factor does not exist. Id. (citing Hammons, 493 N.E.2d at 1254-55).
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A. Sizemore’s Guilty Plea
[15] Sizemore claims that the trial court abused its discretion by failing to find the
fact that he pled guilty to be a mitigating factor at sentencing. “[A]lthough we
have long held that a defendant who pleads guilty deserves ‘some’ mitigating
weight to be given to the plea in return, a guilty plea may not be significantly
mitigating when the defendant receives a substantial benefit in return or when
the defendant does not show acceptance of responsibility.” McElroy v. State, 865
N.E.2d 584, 591 (Ind. 2007) (citations omitted).
[16] In the instant matter, Sizemore’s decision to plead guilty seems to represent a
tactical decision rather than a sincere display of remorse. The trial court noted
its belief that Sizemore did not plead guilty prior to the morning of trial because
Sizemore was “banking on the victim and the witnesses not coming to court,
because [Sizemore] directed them multiple times not to come to court.” Tr. p.
92. Further, the trial court specifically stated that it did not find Sizemore to be
remorseful. The trial court noted that Sizemore was not truly taking
responsibility for his actions as he continued to blame Duncil for his actions.
The trial court further noted that Sizemore continued to make threatening
comments to Duncil, including telling her that it would be “[w]ay worse when
[he] [got] out” if she did not follow his instruction to fail to appear at his trial.
Tr. p. 93. The record also demonstrates that Sizemore benefitted from this
tactical decision as the State agreed that it would not seek consecutive sentences
in exchange for Sizemore’s guilty plea.
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[17] In addition, we recognize that the Indiana Supreme Court has held that a
defendant generally deserves to benefit when his guilty plea spares the victim of
the trauma of a trial and the State of the need to expend considerable time,
resources, and effort to prepare for trial. See Sensback v. State, 720 N.E.2d 1160,
1164 (Ind. 1999). Here, however, Sizemore did not enter into his guilty plea
until the morning of trial. Thus, while spared of need to actually testify during
trial, Duncil was not spared of the trauma associated with preparing for trial.
Likewise, Sizemore’s decision to plead guilty did not spare the State of the need
to expend the necessary time, resources, and effort to prepare for trial.
[18] Review of the record indicates that, contrary to Sizemore’s claim on appeal, the
trial court did consider Sizemore’s guilty plea in sentencing Sizemore. In light
of the seemingly tactical nature of Sizemore’s decision to plead guilty coupled
with the trial court’s determination that Sizemore lacked remorse and did not
seem to truly accept responsibility for his actions, we conclude that Sizemore
has failed to demonstrate that his guilty plea warranted significant mitigating
weight.
B. Potential Hardship on Sizemore’s Dependents
[19] Sizemore also claims that the trial court abused its discretion by failing to
consider his “expressed concern for being away from his young children for a
lengthy incarceration” and the potential hardship a lengthy incarceration would
have on his family. Appellant’s Br. p. 11. We have previously concluded that a
trial court “is not obligated to find a circumstance to be mitigating merely
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because the defendant advances it.” Benefield v. State, 904 N.E.2d 239, 247 (Ind.
Ct. App. 2009) (citing Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007)).
More specifically, as Sizemore acknowledges, a trial court is not required to
find that a defendant’s incarceration would result in undue hardship on his
dependents. Id. In reaching this conclusion, we observed that “[m]any persons
convicted of crimes have dependents and, absent special circumstances showing
that the hardship to them is ‘undue,’ a trial court does not abuse its discretion
by not finding this to be a mitigating factor.” Id. In order for the hardship to
the dependent to be “undue,” there must be special circumstances that make the
burden on the dependent unusual. See generally, id. at 247-48.
[20] Sizemore claims that the trial court abused its discretion by failing to even
consider his claimed concern about the potential hardship that his incarceration
would have on his children. The record reveals, however, that the trial court
considered and rejected Sizemore’s expressed concern in sentencing Sizemore.
The trial court noted that Sizemore committed some of the violent acts at issue
in front of one of his children. The trial court also noted that Sizemore “felt
free to use his mother and his children … to communicate with the victim after
being served with the no-contact order.” Tr. p. 91. In expressing concern for
Sizemore’s apparent willingness to use his mother and children in this way, the
trial court stated the following:
This tells me, sir, that you’re willing to put your mother in
jeopardy of arrest, you’re willing to put your children in a very
bad position, communicating things to their mother. And I note,
in one of the jail calls, you talked to a little boy and you tell him,
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“Make sure mom doesn’t have any dudes around,” uh, tell him
he’s the man of the house, and we’re talking about a little boy.
So you’re putting responsibility to watch for mom’s boyfriends
on a little child.
Tr. p. 91. The trial court also noted the in threatening Duncil, Sizemore had
indicated that his threat was “a promise on my kids.” Tr. p. 93. In mentioning
this statement, the trial court explained: “And that tells me what you think of
your children as well. You say that they mean the world to you here today, I
see you using them as a threat to the victim.” Tr. p. 93. These statements
indicate that the trial court considered Sizemore’s claimed concern for his
family.
[21] The record also reveals that both Sizemore’s mother and Duncil would be
available to care for the children during Sizemore’s incarceration. The record
further reveals that Sizemore was largely unemployed at the time of his arrest.
Duncil, on the other hand, was employed and provided for the family.
Sizemore fails to explain how his incarceration would impede Duncil’s ability
to continue to care and provide for the children.
[22] It is clear from the record that the trial court considered Sizemore’s claimed
concern for the impact that his incarceration would have on his children, but
that it simply did not afford Sizemore’s claim with the mitigating weight
Sizemore believed it should have. Again, “[a] trial court is not obligated to
weigh or credit the mitigating factors the way a defendant suggests they should
be weighed or credited.” Jones v. State, 790 N.E.2d 536, 540 (Ind. Ct. App.
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2003) (citing Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000)). Sizemore
has again failed to demonstrate that his claim is both significant and clearly
supported by the record or that it warranted significant mitigating weight.
Conclusion
[23] In sum, Sizemore has failed to demonstrate that either of the above-discussed
proffered mitigating factors were both (1) significant and clearly supported by
the record or (2) warranted significant mitigating weight. As such, we conclude
that the trial court did not abuse its discretion in sentencing Sizemore.
[24] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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