Dominick Fazzini v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 17 2015, 10:02 am
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
Joanne Baitup Gregory F. Zoeller
Law Office of Joanne Baitup Attorney General of Indiana
Valparaiso, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominick Fazzini, February 17, 2015
Appellant-Defendant, Court of Appeals Cause No.
64A04-1406-CR-296
v. Appeal from the
Porter Superior Court
State of Indiana, The Honorable Roger V. Bradford,
Judge
Appellee-Plaintiff.
64D01-1208-FA-8167
Kirsch, Judge.
[1] Dominck Fazzini (“Fazzini”) appeals his conviction of burglary as a Class A
felony1. He presents one issue on appeal: whether his sentence was
1
See Ind. Code § 35-43-2-1
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inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History
[3] Fazzini received information that Cheri Baruch (“Baruch”) had money and
several guns locked in a safe in her basement. Fazzini recruited Michael
Sprague (“Sprague”), Jordan Wilkerson (“Wilkerson”), and Shawn Duffy
(“Duffy”) to join him in burglarizing and robbing Baruch. Because the money
and guns were located in Baruch’s safe, Fazzini told his accomplices that they
would need to commit their crime while Baruch was home so that she could
open the safe for them.
[4] On August 8, 2012, Fazzini and the other men drove to Baruch’s house.
Wilkerson attempted to gain entry by asking Baruch if he could come in. When
she refused, Wilkerson asked her for some water. When she opened the door to
give Wilkerson the water, Wilkerson forced himself inside. Fazzini and Duffy
entered behind Wilkerson. Both were armed with handguns. Duffy pointed his
gun at Baruch, and Wilkerson knocked her to the floor and held her down.
Baruch sustained injuries to her head, back, and knee.
[5] One of the men grabbed Baruch’s keys from her, and then the group forced her
down to the basement safe. The group threatened to shoot her if she did not
open the safe. Baruch complied, and Fazzini and his accomplices took the guns
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and money. They then made Baruch put on a new shirt and attempted to
destroy their fingerprints with bleach.
[6] While Fazzini and his accomplices were still at Baruch’s residence, her
neighbor, James Filby (“Filby”), arrived causing the men to flee. After hearing
about what happened, Filby called 911 and gave chase. The pursuit concluded
when the vehicle in which Fazzini and his accomplices were traveling crashed.
Fazzini, Sprague, and Wilkerson all fled, but were apprehended shortly
afterward. During the encounter, Duffy exchanged gunfire with the police—
shooting Filby in the hand in the process—before turning his gun on himself
and taking his own life.
[7] The State charged Fazzini with burglary as a Class A felony, robbery as a Class
B felony, and criminal confinement as a Class B felony. Fazzini agreed to plead
guilty to burglary as a Class A felony in exchange for the dismissal of the two
lesser charges as well as an executed sentence cap of 40 years. All remaining
charges were dismissed. Fazzini was sentenced to 35 years executed and 5
years suspended. Fazzini now appeals.
Discussion and Decision
[8] Appellate courts may revise a sentence after careful review of the trial court's
decision if they conclude that the sentence is inappropriate based on the nature
of the offense and the character of the offender. Ind. Appellate Rule 7(B). Even
if the trial court followed the appropriate procedure in arriving at its sentence,
the appellate court still maintains a constitutional power to revise a sentence it
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finds inappropriate. Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005).
While the trial court is not afforded excessive deference, “we must and should
exercise deference to a trial court’s sentencing decision” in part because of the
trial court’s unique perspective on sentencing decisions. Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007)
[9] Fazzini contends that trial court abused its discretion because his sentence was
inappropriate in light of the character of the offender. Fazzini is conflating two
entirely separate analyses: “[I]nappropriate sentence and abuse of discretion
claims are analyzed separately. . . . [A]n inappropriate sentence analysis does
not involve an argument that the trial court abused its discretion in sentencing
the defendant.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Our
Supreme Court has stated that an abuse of discretion at sentencing occurs when
the trial court “fails to enter a sentencing statement . . . enters a sentencing
statement that explains reasons for imposing a sentence 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).
[10] Fazzini does not explicitly contend the trial court committed any of the
aforementioned errors. Rather, Fazzini claims that the trial court abused its
discretion in failing to find that the mitigating factors of the case outweighed the
aggravating factors. However, our Supreme Court has held that “[b]ecause the
trial court no longer has any obligation to ‘weigh’ aggravating and mitigating
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factors against each other when imposing a sentence . . . a trial court cannot
now be said to have abused its discretion in failing to ‘properly weigh’ such
factors.” Id. at 491. Fazzini’s argument is incorrect as a matter of law.
[11] Regarding the claim that a sentence is inappropriate in light of the nature of the
offense and the character of the offender, the defendant has the burden of
persuading the appellate court that his sentence is inappropriate. King, 894
N.E.2d at 267. Here, the trial court determined that the damage done to the
victim, the danger the crime posed to the community, and Fazzini’s role as the
mastermind behind the crime justified a sentence higher than the advisory
sentence. We see no reason to disagree. Fazzini was the mastermind behind a
brutal attack on an innocent woman. This is not his first offense. Finally, the
nature of the offense is particularly heinous: a pre-planned attack on a
defenseless woman in her own home that ultimately left one dead and two
injured. Fazzini’s sentence is not inappropriate in light of the nature of the
offense and the character of the offender.
[12] Affirmed.
Friedlander, J., and Crone, J., concur.
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