Samuel Trahan IV v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Apr 08 2015, 9:59 am
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
Craig Persinger Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Jonathan R. Sichtermann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samuel Trahan IV, April 8, 2015
Appellant-Defendant, Court of Appeals Case No.
27A02-1409-CR-629
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J. Kenworthy,
Judge
Appellee-Plaintiff.
Case No. 27D02-1403-CM-44
Vaidik, Chief Judge.
Case Summary
[1] Despite a no-contact order, Samuel Trahan IV contacted the victim of his
crimes numerous times while he was in jail awaiting trial. He pled guilty to
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Class A misdemeanor invasion of privacy, and the trial court sentenced him to
nine months executed in the Indiana Department of Correction. On appeal, he
argues that his sentence is inappropriate. We find that the escalating severity of
Trahan’s crimes and the fact that lesser punishments have not deterred Trahan
justifies his nine-month sentence. We therefore affirm.
Facts and Procedural History
[2] In 2013 Trahan was charged with Class C felony battery resulting in bodily
injury to a pregnant woman, Class D felony strangulation, Class D felony
residential entry, and Class A misdemeanor criminal trespass in Case No.
27D02-1312-FC-92 (“Case No. 92”). PSI p. 5. At the initial hearing, the trial
court issued a no-contact order that prohibited Trahan from contacting the
victim of his crimes, his pregnant girlfriend Cindy Vanessa Medina. Tr. p. 23.
[3] In January 2014, while incarcerated at the Grant County Security Complex
awaiting trial in Case No. 92, Trahan contacted Cindy approximately ten times
using his sister, Asia Boff, as an intermediary. That is, Trahan called Asia, who
then called Cindy using three-way calling. Some of the phone calls were about
Trahan and Cindy’s newborn son; however, in other phone calls Trahan asked
Cindy to contact his lawyer in order to help him with his charges in Case No.
92.
[4] The State charged Trahan with Class A misdemeanor invasion of privacy for
violating the no-contact order. Trahan pled guilty as charged without the
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benefit of a plea agreement, and the trial court accepted Trahan’s plea. Both
Trahan and Cindy testified at the sentencing hearing. Cindy testified that she
no longer wanted the no-contact order in place and that Trahan did not
threaten or harass her during the calls. Trahan admitted violating the no-
contact order but claimed that the majority of the calls were about his newborn
son. He acknowledged that he asked Cindy to contact his attorney. Id. at 20.
The court found three aggravators: (1) Trahan has a substantial criminal
history, which the court described as “a strong aggravator”; (2) Trahan enlisted
his sister, Asia, to violate the no-contact order, which subjected her to criminal
charges and demonstrated his “selfish nature”; and (3) Trahan’s “character and
attitude indicate that [he] is not likely to follow orders of the Court, or rules of
probation.” Appellant’s App. p. 40. The court found one mitigator:
In the PSI, the probation officer has found that [Trahan] is likely to
respond to short term incarceration or probation. However, based
upon [Trahan’s] pattern of behavior, character and attitudes, the Court
finds this is a weak mitigating factor.
Id. Concluding that the aggravators outweighed the mitigators, the court
sentenced Trahan to nine months executed in the DOC, to be served
consecutive to his sentence in Case No. 92.1 The court gave Trahan credit for
135 “actual” days he was incarcerated. Id. at 41.
1
The trial court would have sentenced Trahan to a greater sentence in this case:
The State’s asking for nine months executed. Frankly, I would’ve given you more. I am
giving you the benefit of pleading guilty to this case and taking responsibility and for that
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[5] Trahan now appeals his sentence.
Discussion and Decision
[6] Trahan contends that his nine-month sentence is inappropriate and asks us to
reduce it to ninety days. See Appellant’s Br. p. 6.
[7] Our appellate rules authorize revision of a sentence “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.” Ind.
Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his
or her sentence has met this inappropriateness standard of review.” Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[8] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Whether a sentence is inappropriate ultimately turns on the culpability
of the defendant, the severity of the crime, the damage done to others, and a
myriad of other factors that come to light in a given case. Id. at 1224.
reason, I will accept the State’s recommendation and sentence you to nine months
executed . . . .
Tr. p. 30.
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[9] Indiana Code section 35-50-3-2 provides that “[a] person who commits a Class
A misdemeanor shall be imprisoned for a fixed term of not more than one (1)
year[.]” Here, the trial court sentenced Trahan to nine months.
[10] Trahan contends the nature of the offense is “minor” because his violation of
the no-contact order was “technical, given that the victim did not indicate that
she felt threatened or that her privacy was compromised in a meaningful
sense.” Appellant’s Br. p. 5. Although this case may not involve an egregious
violation of a no-contact order, Trahan, while in jail awaiting trial on charges
for harming his pregnant girlfriend, used his sister as an intermediary to contact
Cindy approximately ten times. In some of the calls, Trahan asked Cindy to
contact his lawyer in order to help him with his charges in Case No. 92.
[11] Trahan concedes that his character, as reflected by his criminal history,
“indicates some difficulty in abiding by the law.” Id. Trahan was twenty-four
years old when he was sentenced in this case. His PSI reflects the following
convictions: misdemeanor minor consumption of alcohol (2011), misdemeanor
possession of marijuana (2011), and misdemeanor possession of marijuana
(2012). In addition, in Case No. 92, Trahan pled guilty to Class C felony
battery resulting in bodily injury to a pregnant woman, Class D felony
strangulation, and Class A misdemeanor criminal trespass, and the trial court
sentenced him to an aggregate term of four years, with two years suspended to
probation. Finally, Trahan was on probation when he violated the no-contact
order in this case. See Tr. p. 5. The escalating severity of Trahan’s crimes and
the fact that lesser punishments have not deterred Trahan justifies his nine-
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month sentence for violating the no-contact order by contacting the victim of
his crimes while in jail awaiting trial. We therefore affirm Trahan’s sentence.
[12] Affirmed.
Kirsch, J., and Bradford, J., concur.
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