Carl Strobel 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 Dec 21 2016, 6:37 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jake Warrum Gregory F. Zoeller
Warrum Law Office Attorney General of Indiana
Mt. Vernon, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl Strobel, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
65A04-1603-CR-582
v. Appeal from the
Posey Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. James M. Redwine, Judge
Trial Court Cause No.
65C01-1511-F4-458
Kirsch, Judge.
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[1] Following a bench trial, Carl Strobel (“Strobel”) was convicted of Level 6
felony residential entry1 and Class A misdemeanor attempted theft.2 He appeals
his sentence, asserting that the trial court abused its discretion when it
sentenced him.
[2] We affirm.
Facts and Procedural History3
[3] On the evening of November 2, 2015, George and Deborah Morgan and their
son, Ben, (collectively, “the Morgans”) were at their home in Posey County,
Indiana. George heard unknown voices in the laundry room of the home, and
he held the laundry room door shut as the intruders tried to open it. He told the
people to leave, but they did not. Deborah and Ben retrieved firearms kept in
the home, and then the Morgans, armed with one or more weapons, opened the
laundry room door, at which time Strobel, a woman later determined to be
Amy Neighbors (“Neighbors”) and a dog entered the Morgans’ kitchen. None
of the Morgans knew Strobel or Neighbors. Ben, while holding a gun to Strobel
1
See Ind. Code § 35-43-2-1.5.
2
See Ind. Code §§ 35-43-4-2(a), 35-41-5-1.
3
Strobel does not include a Statement of Facts section in his Appellant’s Brief as required by Indiana
Appellate Rule 45(A)(6). Pursuant to Indiana Appellate Rule 9(F)(5), Strobel was to request and provide this
court with “all portions of the Transcript necessary to present fairly and decide issues on appeal,” and, as this
appeal presents sentencing issues, Strobel elected to provide this court with the Transcript of the sentencing
hearing only, and not that from the bench trial. Given the sparse record, the State, for its Statement of Facts
section, draws facts from the presentence investigation report, which incorporated the probable cause
affidavit and appears in Appellant’s Appendix. Appellee’s Br. at 6 n.1; Appellant’s App. at 99-100. We do the
same.
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and Neighbors, escorted them out of the house and to their vehicle, which was
a pick-up truck parked approximately fifty yards from the house and next to the
Morgans’ detached garage. Strobel, Neighbors, and the dog got in the vehicle
and drove away.
[4] Meanwhile, Posey County Sheriff’s Department deputies had been dispatched
to investigate what was reported as a burglary in progress at the Morgans’
home. While on the way to the residence, the deputies were informed that the
intruders had left the property in a white Chevrolet pick-up truck and were
heading south. The deputies encountered and stopped the vehicle, which was
carrying Strobel, Neighbors, and the dog. Ben came to the scene and identified
them as the persons and dog that had been in his family’s home. Deputies went
to the Morgan’s home and spoke with George and Deborah, who related the
occurrence. Deputies also viewed the detached garage and determined that
someone had been in it, as well as Deborah’s vehicle, because its center console
was open and its contents appeared to have been rummaged through.
[5] On November 4, 2015, the State of Indiana charged Strobel with: (1) Count 1,
burglary, a Level 4 felony; (2) Count 2, residential entry, a Level 6 felony; and
(3) Count 3, attempted theft, a Class A misdemeanor. Strobel waived his right
to a jury trial. According to Strobel, he conceded at the bench trial that the
residential entry occurred. See Appellant’s Br. at 11.
[6] The trial court found Strobel not guilty of burglary, but found him guilty of
residential entry and attempted theft. At the sentencing hearing, counsel for the
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parties presented argument concerning the presence of aggravators and
mitigators. Thereafter, the trial court issued a sentencing statement and
identified two mitigators: (1) Strobel waived a jury trial; and (2) he was at low
risk to re-offend. Appellant’s App. at 14. It also identified two aggravators: (1)
Strobel had a criminal history consisting of three misdemeanors; and (2) the
particular harm that occurred was greater than the elements needed to find
Strobel guilty. Id. Finding that the aggravators outweighed the mitigators, the
trial court sentenced Strobel to two and one-half years imprisonment at the
Indiana Department of Correction (“DOC”) for the Level 6 felony residential
entry conviction and to one year of imprisonment at the Posey County Jail for
the Class A misdemeanor attempted theft. Id. at 15. The trial court ordered the
sentences to be served consecutively, for a total sentence of three and one-half
years, with two years executed, and the remaining one and one-half years
suspended to probation. Strobel now appeals.
Discussion and Decision
[7] Strobel asserts that the trial court abused its discretion when it sentenced him.
Sentencing decisions rest within the sound discretion of the trial court, and as
long as a sentence is within the statutory range, it is subject to review only for
an abuse of discretion. Barker v. State, 994 N.E.2d 306, 311 (Ind. Ct. App. 2013)
(citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218), trans. denied. An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it. Barker, 994 N.E.2d at 311. A trial court may abuse its discretion by
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failing to enter a sentencing statement, entering findings of aggravating and
mitigating factors unsupported by the record, omitting factors clearly supported
by the record and advanced for consideration, or giving reasons that are
improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91.
[8] Strobel argues that the trial court abused its discretion by ordering him to serve
“a maximum sentence.” Appellant’s Br. at 8. The sentencing range for Strobel’s
Level 6 residential entry conviction was six months to two and one-half years,
with the advisory term being one year. Ind. Code § 35-50-2-7. For the Class A
misdemeanor attempted theft conviction, Strobel faced up to one year in jail. Ind.
Code § 35-50-3-2. While the trial court did impose the maximum two-and-one-
half years for the residential entry and a consecutive one year for the attempted
theft, for an aggregate three and one-half years of incarceration, it ordered that
two years be executed, suspending the remainder to supervised probation.4 As
this court has observed, “[A] maximum sentence is not just a sentence of
maximum length, but a fully executed sentence of maximum length” and that
“[a]nything less harsh, be it placement in community corrections, probation, or
any other available alternative to prison, is simply not a maximum sentence.”
Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009) (emphasis in
original), trans. denied. In this case, one and one-half years of Strobel’s sentence
were suspended, and, thus, contrary to Strobel’s assertion, he did not receive the
4
The trial court explained to Strobel that it was suspending a portion of his sentence to probation because “I
want you to be on probation for a while. I am hoping that will help you once you get out[.] . . . I want you to
have a chance to be successful[.]” Tr. at 9.
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maximum sentence possible. See Bratcher v. State, 999 N.E.2d 864, 870-71 (Ind.
Ct. App. 2013) (defendant’s twenty-year sentence with five years suspended to
probation for Class B felony, for which the sentencing range was between six and
twenty years, was not “maximum sentence”), trans. denied.
[9] Strobel also argues that “the trial court erred by failing to consider the other
statutory mitigating factors that were presented at the sentencing hearing,”
namely that (1) Strobel in the past had responded affirmatively to probation, (2)
he owns his own business and supports family and incarceration would place
undue hardship on his family and his business, and (3) he would benefit from
treatment at a Veterans Administration facility for PTSD-type symptoms, not
officially yet diagnosed, which stem from his prior military service. Appellant’s
Br. at 9-10. A trial court abuses its discretion in sentencing if it overlooks
“substantial” mitigating factors that are “clearly supported by the record.”
Anglemyer, 868 N.E.2d at 491. The burden is on the defendant to establish that
the mitigating evidence is both significant and clearly supported by the record.
Corbett v. State, 764 N.E.2d 622, 630 (Ind. 2002). A trial court is not required to
find mitigating factors, nor is it obligated to accept as mitigating each of the
circumstances proffered by the defendant. Ashby v. State, 904 N.E.2d 361, 363
(Ind. Ct. App. 2009). Furthermore, if the trial court does not find the existence
of a mitigator after it has been argued by counsel, the court is not obligated to
explain why it found the circumstance not to be mitigating. Barker, 994 N.E.2d
at 311.
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[10] Here, at sentencing, counsel for Strobel presented argument to the trial court
concerning Strobel’s past success with completing probation, the fact that he
ran his own business and supported dependents, and that Strobel may suffer
from PTSD-type of issues related to his prior military service. Tr. at 5-6.
Neither Strobel nor the State presented any evidence at the hearing. The trial
court was not obligated to accept Strobel’s arguments concerning the proffered
mitigators, and Strobel has failed to establish that the proffered mitigating
circumstances were both significant and clearly supported by the record. To the
extent that Strobel’s claim is a challenge to the trial court’s weighing of the
aggravators and mitigators, that claim is not subject to appellate review. See
Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009) (relative weight or
value assignable to reasons properly found, or to those which should have been
found, is not subject to review for abuse of discretion), trans. denied.
[11] Strobel also contends that the trial court improperly applied the aggravator that
the particular harm that Strobel caused to the victims exceeded that necessary
to find him guilty.5 In order to find the impact on the victim’s family to be an
aggravating circumstance, the trial court must explain how the impact on the
family was different than the impact which normally results from the
commission of the offense. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007).
5
In his brief, Strobel characterizes this as “the main” aggravating factor used by the trial court. See
Appellant’s Br. at 6, 11, 12. However, the record before us reflects that the harm to the victims was one of two
aggravating circumstances that the trial court identified, and nothing suggests that either was “the main”
aggravator.
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Also, such harm must have been foreseeable to the defendant. Pickens. v. State,
767 N.E.2d 530, 535 (Ind. 2002). Strobel argues on appeal that “the basic
elements of the offense are very serious and traumatizing,” and that, in this
case, the impact on the victims was not so “destructive” that it was beyond the
range of impacts “normally associated with the commission of the offense.”
Appellant’s Br. at 6, 12. Further, he contends, any such destructive impact was
not foreseeable to him.
[12] The limited record before us indicates that Strobel, along with Neighbors and
the dog, were inside the Morgans’ home while the Morgans were present, the
Morgans heard the intruders and ordered them to leave, but Strobel
nevertheless continued to try to open the door and gain access to interior areas
of the home. The Morgans armed themselves with one or more firearms and
confronted Strobel and Neighbors, who were strangers, and then Ben, while
pointing a firearm at Strobel and Neighbors, walked them to their vehicle. As
counsel and the trial court observed at sentencing, but for the Morgans’ exercise
of restraint, this story could have had a different ending, including with
members of the Morgan family being injured. The trial court remarked that this
case presented facts that “frankly I have not seen . . . in my experience,” and it
explained, “I am not using the elements of the crimes I found you guilty of to
aggravate your sentence. I’m saying that what aggravates the sentence is the
particular harm that occurred, not simply violating the law there.” Tr. at 8.
Strobel has failed to establish that the trial court abused its discretion when it
considered the impact on the Morgan family to be an aggravating circumstance.
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[13] However, even if, as Strobel claims, the trial court improperly relied on this
circumstance to support the sentence imposed, we find no error. When a
sentencing court improperly applies an aggravating circumstance, but other
valid aggravating circumstances do exist, a sentence enhancement may still be
upheld. Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013). A single
aggravating factor is sufficient to warrant an enhanced sentence. Id. Here, the
trial court identified as an aggravator that Strobel has a criminal history, which
was comprised of several Class A misdemeanor convictions: criminal trespass
in 2009; battery resulting in bodily injury in 2011; and invasion of privacy in
2011. Strobel acknowledges his criminal history, Appellant’s Br. at 6, and he
does not challenge its validity as an aggravating circumstance. Strobel’s
criminal history was a proper aggravating circumstance. See Deloney v. State,
938 N.E.2d 724, 732 (Ind. Ct. App. 2010) (trial court was within its discretion
to consider defendant’s “somewhat brief” criminal history as an aggravating
factor), trans. denied. Strobel has failed to show that the trial court abused its
discretion when it imposed its sentence.
[14] Strobel also contends that the trial court abused its discretion by ordering that
the sentences for Counts 2 and 3 be served consecutive to each other. The
imposition of consecutive sentences is a separate and discrete decision from
sentence enhancement, although both may be dependent upon the same
aggravating circumstances. Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006);
see also Moore v. State, 907 N.E.2d 179, 181 (Ind. Ct. App. 2009) (noting the trial
court “may rely on the same reasons to impose an enhanced sentence and also
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impose consecutive sentences”), trans. denied. Whether to impose consecutive
or concurrent sentences is within the trial court’s sound discretion and is
reviewed only for an abuse of discretion. Henderson v. State, 44 N.E.3d 811, 814
(Ind. Ct. App. 2015) (citing Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct.
App. 2009)). The trial court abuses its discretion if its decision is clearly against
the logic and effect of the facts and circumstances. Gellenbeck, 918 N.E.2d at
712.
[15] Indiana Code section 35-50-1-2 provides:
[T]he court shall determine whether terms of imprisonment shall
be served concurrently or consecutively. The court may consider
the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b) in making a
determination under this subsection[.]
Ind. Code § 35-50-l-2(c). The trial court must find at least one aggravating
circumstance before imposing consecutive sentences. Henderson, 44 N.E.3d at
814. Here, the trial court found two aggravators. Accordingly, the trial court
did not abuse its discretion when it ordered Strobel to serve the residential entry
sentence consecutive to the attempted theft sentence.
[16] Strobel has not shown that the trial court abused its discretion when it
sentenced him to three and one-half years, of which one and one-half years was
suspended to supervised probation.
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[17] Affirmed.
May, J., and Crone, J., concur.
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