Jason L. Forshee v. State of Indiana

FILED
Jul 13 2016, 9:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ross G. Thomas Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason L. Forshee, July 13, 2016
Appellant-Defendant, Court of Appeals Case No.
16A05-1511-CR-1923
v. Appeal from the
Decatur Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Matthew D. Bailey, Judge
Trial Court Cause No.
16D01-1403-FA-192
Kirsch, Judge.
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[1] Jason L. Forshee (“Forshee”) pleaded guilty to Class C felony dangerous
control of a child,1 and at the sentencing hearing, the trial court identified
aggravating and mitigating circumstances and then sentenced Forshee to four
years of incarceration, with six months suspended. Forshee appeals and raises
the following restated issue: whether the trial court abused its discretion in
sentencing Forshee because it considered as an aggravating circumstance that
the victim was in Forshee’s “care, custody, or control,” which was an element
of a dismissed charge.
[2] We affirm.
Facts and Procedural History2
[3] In March 2014, Forshee resided in a home in Greensburg, Indiana with his
fiancée, Amy (“Amy”), and their two children, six-year-old son A.F. and seven-
year-old daughter N.F. Amy’s older son, C.R., who was then age 13, also lived
at the home. In the early evening on March 11, all five of the family members
were at home and were getting ready to attend a school banquet in recognition
of C.R.’s academic achievements. During this time, and while waiting for the
others, Forshee began to clean his Colt M4 rifle, which he had used for target
shooting some days prior. Before beginning to clean it, he removed the
1
See Ind. Code § 35-47-10-7(1)(B). We note that this statute was amended, effective July 1, 2014, but we
apply the statute in effect at the time Forshee committed the offense in March 2014.
2
As Forshee notes on appeal, the affidavit of probable cause was incorporated as part of the factual basis
supporting his guilty plea. Appellant’s Br. at 5 n.2.
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magazine and believed the rifle to be unloaded. Sometime during the cleaning
process, Amy spoke to Forshee from the bathroom, but he could not hear her,
so he set down the rifle on a coffee table and walked away to speak with her.
Some seconds later, he heard a loud “pop” and turned to see A.F. holding the
rifle. Sent. Tr. at 33. A cartridge inadvertently had been left in the rifle’s
chamber, and A.F. had shot C.R., who died shortly thereafter at the hospital
from the injuries.
[4] The State charged Forshee with: Count I, Class A felony neglect of a
dependent; and Count II, Class C felony dangerous control of a child. In
exchange for the State’s dismissal of Count I, Forshee pleaded guilty to Count
II, which read:
The parent of [A.F.], age 6, did recklessly permit [A.F.] to
possess a firearm, failing to make reasonable effort to prevent the
use of the firearm by [A.F.] to commit a felony offense, to wit:
Pointing a Firearm, [C]lass D felony and/or Reckless Homicide,
Class C felony, inside the residence[.]
Appellant’s App. at 11. The Plea Agreement (“Plea Agreement”) provided that
sentencing “shall be left OPEN,” but with a cap of six years on the executed
portion of the sentence. Id. at 15 (emphasis in original). It further stated, “The
State will make no sentencing recommendation, but may present evidence and
victim impact statements.” Id. (emphasis added).
[5] At the sentencing hearing, after hearing testimony, receiving argument, and
after having previously reviewed the letters that had been submitted to it, the
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trial court identified mitigating and aggravating circumstances. As far as
mitigators, the trial court found that Forshee was remorseful, had led a “law
abiding life for a long period of time,” was unlikely to commit another crime,
and had sought grief counseling. Sent. Tr. at 46-47. Contrary to Forshee’s
request, the trial court did not find that pleading guilty constituted a significant
mitigating circumstance, as Forshee received the benefit of dismissal of a Class
A felony under the Plea Agreement, and it also rejected Forshee’s claim that
incarceration would result in undue hardship on Forshee’s family, as it results
in hardship on most families, and his situation presented no exception.
[6] With regard to aggravators, the trial court observed that Forshee had four prior
misdemeanor convictions, but concluded they were unrelated in nature and
severity to the current offense, and the most recent was twelve years prior; the
trial court therefore determined that Forshee’s criminal history was not
significant. The trial court recognized as a significant aggravating circumstance
that Forshee “was in a position of care, custody or control of the victim in this
case, with a family relationship that’s been testified about[.]” Id. at 45. The
trial court also found as a significant aggravator that this offense would have a
“long lasting [and] very serious impact” on “the other child in this case and his
future life.” Id.
[7] The trial court sentenced Forshee to the advisory four years for Class C felony
dangerous control of a child, ordering it to be executed at the Indiana
Department of Correction, with six months suspended to probation. Forshee
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filed a motion to correct error, which was deemed denied. Forshee now
appeals.
Discussion and Decision
[8] Forshee contends that the trial court abused its discretion when it sentenced
him because it relied on an improper aggravator. Sentencing decisions rest
within the sound discretion of the trial court and are reviewed on appeal only
for an abuse of discretion. Guzman v. State, 985 N.E.2d 1125, 1131 (Ind. Ct.
App. 2013) (citing 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 marks omitted). When
imposing a sentence in a felony case, the trial court must provide a reasonably
detailed sentencing statement explaining its reason for imposing the sentence.
Id. As the Anglemyer Court explained,
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
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trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Anglemyer, 868 N.E.2d at 490-91.
[9] On appeal, Forshee does not challenge the trial court’s determination with
regard to mitigating factors; rather, his challenge is to one of the two
aggravators that the trial court recognized as significant. Specifically, he asserts
that it was an abuse of discretion for the trial court to rely on the aggravating
circumstance that he was “in a position of care, custody, or control over the
victim[.]”3 Sent. Tr. at 45. Forshee maintains that it was improper as a matter
of law for the trial court to rely on that fact as an aggravator because it is a
material element of the dismissed charge (Count I, Class A neglect of a
dependent). Forshee’s argument, however, was expressly addressed and
rejected by our Supreme Court in Bethea v. State, 983 N.E.2d 1134 (Ind. 2013).4
[10] In Bethea, a defendant had been charged with, among other things, felony
burglary resulting in bodily injury, and he ultimately pleaded guilty to felony
armed robbery and felony criminal confinement. 983 N.E.2d at 1137. At
3
To the extent that Forshee suggests that A.F., the six-year-old who shot the gun, was “the victim” in this
case, we disagree. See Appellant’s Br. at 5 (stating “The trial court did not specify who he was referring to []as
the victim in his ruling.”). Certainly, in a sense, there are many victims in this tragic case; however, we are
certain that the trial court – when stating that “Forshee was in a position of care, custody, or control of the
victim in this case” – was referring to C.R., who suffered a fatal gunshot wound when A.F. handled
Forshee’s rifle, and it discharged.
4
In support of his position, Forshee cites to Farmer v. State, 772 N.E.2d 1025, 1027 (Ind. Ct. App. 2002) and
Roney v. State, 872 N.E.2d 192, 201 (Ind. Ct. App. 2007), trans. denied. Appellant’s Br. at 6. However, our
Supreme Court’s decision in Bethea abrogated Farmer and Roney. See Guzman, 985 N.E.2 1125, 1132 (Ind. Ct.
App. 2013) (recognizing that Bethea abrogated Farmer and Roney).
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sentencing, the trial court found “the harm, injury, and loss suffered by the
victims” to be an aggravating circumstance. Id. at 1138. Bethea appealed his
sentence, arguing that it violated the limitation on consecutive sentences in
Indiana Code section 35-50-1-2.5 Bethea v. State, No. 18A02-0703-CR-247 (Ind.
Ct. App. Nov. 15, 2007). Finding that Bethea had pleaded guilty to a “crime of
violence” as defined in the statute, this court found that Bethea’s sentences were
not subject to the statute, and it affirmed. Id. Bethea sought post-conviction
relief, arguing that both his trial and appellate counsel were ineffective by
failing to challenge the aggravating factors used by the trial court to sentence
him. The post-conviction court denied Bethea’s petition, and Bethea appealed.
Bethea v. State, 964 N.E.2d 255 (Ind. Ct. App. 2012), trans. granted. On appeal,
Bethea argued, among other things, that appellate counsel should have asserted
that it was trial court error to treat the victim’s injury as an aggravating factor
because that was an element of the burglary charge that was dismissed pursuant
to his plea agreement. Id. at 266. A majority of this court affirmed the post-
conviction court’s denial of relief. Id. at 269.
[11] On transfer, the Supreme Court analyzed, among other things, whether the trial
court erred “by treating the victim’s injury as an aggravating factor when the
5
Indiana Code section 35-50-1-2 provides that the aggregate sentence for conduct constituting a single
episode of criminal conduct, except in situations involving “crimes of violence,” may not exceed the advisory
sentence for the class of felony that is one level higher than the most serious felony of which the defendant is
convicted.
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injury was an element of the burglary charge that was dismissed pursuant to
[Bethea’s] plea agreement.” Bethea, 983 N.E.2d at 1142. The Bethea Court
reviewed a line of cases, including Farmer and Roney, and ultimately held that it
was not improper for the trial court in Bethea’s case to give significant weight to
facts relating to the burglary and other dismissed charges. Id. at 1145. It
reasoned that although those facts related to elements of the dismissed charges,
the terms of the plea agreement did not limit or exclude what may be
considered by the trial court. That is, a plea agreement is a contract and each
party bargains “to include or exclude certain terms and each party received
substantial benefits by arriving at an agreement.” Id. at 1144. In Bethea’s case,
Bethea bargained for dismissal of seven of nine counts with which he was
charged; the State bargained to ensure a certain conviction on two Class B
felonies. Bethea’s written plea agreement did not limit what the State could
offer as aggravating factors or what the defendant could submit as mitigating
factors. “In other words, it did not limit the sentencing evidence, only the
maximum sentence.” Id.
It is well within the purview of contract law, and consequentially,
as mentioned above, the law as it relates to plea bargains, for the
Defendant to bargain and the State to accept a plea bargain that
forecloses the possibility of the trial court using enhancements
from the underlying charges that were dismissed, or from the
original charges from which a lesser included plea is taken.
However, if a plea bargain lacks such language, we hold it is not
necessary for a trial court to turn a blind eye to the facts of the
incident that brought the defendant before them.
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Id. at 1145. Simply stated, “Unless evidence is forbidden by the terms of the
plea agreement, the trial court [] may consider all the evidence before [it].” Id.
at 1146.
[12] Here, like in Bethea, the Plea Agreement did not contain any language
“foreclosing the trial court from considering the facts and circumstances relating
to the dismissed charge[].” Guzman, 985 N.E.2d at 1132. Rather, the Plea
Agreement generally provided that the State “may present sentencing
evidence[.]” Appellant’s App. at 15. Therefore, as the Bethea Court explained,
the trial court did not have to “turn a blind eye” to the facts and circumstances
surrounding the case. 983 N.E.2d at 1145. Accordingly, the trial court did not
abuse its discretion when it considered as an aggravator the circumstance that,
at the time of the incident, Forshee was in a position of care, custody, or control
of C.R.6 See Guzman, 985 N.E.2d at 1132 (trial court acted within discretion
when, while sentencing defendant for felony reckless homicide, it considered
surviving victim’s bodily injury as aggravator, even though victim’s injury was
essential element of two charges that were dismissed pursuant to plea
agreement, given that agreement did not contain language foreclosing trial
court from considering facts and circumstances relating to dismissed charges).
6
We recognize that “[w]here a trial court’s reason for imposing a sentence greater than the advisory sentence
includes material elements of the offense, absent something unique about the circumstances that would
justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’” Gomillia v. State,
13 N.E.3d 846, 852-53 (Ind. 2014). However, that principle is inapplicable here, as the fact that C.R. “was
under the care, custody, or control” of Forshee was not a material element of the offense for which Forshee
was sentenced.
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[13] Affirmed.
[14] Riley, J., and Pyle, J., concur.
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