Dustin J. Spence v. State of Indiana (mem. dec.)

FILED
MEMORANDUM DECISION Apr 21 2016, 9:19 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court
Court of Appeals
Memorandum Decision shall not be regarded as and Tax Court
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
Cara Schaefer Wieneke Gregory F. Zoeller
Brooklyn, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin J. Spence, April 21, 2016
Appellant-Defendant, Court of Appeals Case No.
84A01-1509-CR-1414
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Judge
Appellee-Plaintiff
Trial Court Cause No. 84D01-1501-
F4-267
Bradford, Judge.
Case Summary
Part of a group that calls itself “The Squad” (Appellant’s App. 8), Defendant-
Appellant Dustin Spence drove two friends to a residence, knowing they
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intended to commit theft therein. Appellee-Plaintiff the State of Indiana (“the
State”) charged Spence with burglary and theft. Pursuant to a plea agreement,
Spence pled guilty to burglary in exchange for dismissal of the theft and gang
enhancement charges. The trial court sentenced Spence to six years of
incarceration. Spence argues that his sentence is inappropriate because his role
in the burglary was minor and his character evinces rehabilitation. Because
Spence has failed to establish his sentence was inappropriate, we affirm.
Facts and Procedural History
[1] Spence, Matt Hensley, and Steven Perry were part of a group who called
themselves the “The Squad.” Appellant’s App. p. 8. On January 5, 2015,
Spence drove Hensley and Perry to the residence of Veronica Kraemer and
Dustin Nally in Terre Haute, Vigo County. Spence knew that Hensley and
Perry entered the residence with intent to commit theft, though Spence did not
enter the residence himself.
[2] On January 29th, the State charged Spence with burglary and theft of Kraemer
and Nally’s two video-gaming systems, video games, and a fifty-two-inch flat-
screen television. Under his plea agreement, Spence agreed to plead guilty to
Level 4 felony burglary in return for dismissal of the theft and gang
enhancement charges. Spence’s plea agreement capped his sentence at six
years.
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[3] At sentencing, the trial court found Spence’s criminal history exemplifies a
“typical escalation” and no evidence that his criminal activity is nonrecurring.
Tr. p. 26. Accordingly, the trial court sentenced Spence to six years: four to be
executed as a direct commitment to In-Home Detention and the other two
suspended to formal probation. Spence contends that given certain mitigating
circumstances, his sentence was inappropriate.
Discussion and Decision
Appropriateness of Sentence
[4] This court “may revise a sentence authorized by statute 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). The defendant has the burden of
persuading this court that his sentence is inappropriate. See Hollar v. State, 916
N.E.2d 741, 743 (Ind. Ct. App. 2009) (citing Reid v. State, 876 N.E.2d 1114,
1116 (Ind. 2007)). Furthermore, when considering an inappropriateness
challenge, “[w]e must exercise great restraint in reviewing and revising
sentences and recognize the special expertise of the trial bench in making
sentencing decisions.” Wells v. State, 836 N.E.2d 475, 480 (Ind. Ct. App. 2005).
[5] As to the nature of the offense, Spence argues that his role in the burglary was
minor compared to Hensley and Perry’s roles. Spence emphasizes that he did
not participate in the actual burglary itself but merely drove Hensley and Perry
to the victim’s house. However, a person who assists in a crime is nevertheless
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equally culpable as those who committed the crime, Ind. Code 35-41-2-4, as
Spence acknowledged. Moreover, no authority requires that co-participants
receive proportional sentencing. Lopez v. State, 527 N.E.2d 1119, 1133 (Ind.
1988).
[6] As to his character, Spence argues that his voluntary life changes should be
acknowledged as a reflection on his character and justify a reduction in his
sentence. Specifically, Spence claims he has broken ties with Hensley and
Perry, become employed, attempted to enroll in school, and complied with all
the conditions imposed upon him while on pretrial home detention.
Notwithstanding these life changes, we find that several other circumstances
outweigh them.
[7] Defendants’ criminal records can be relevant in determining their character,
revealing whether they are deterred from committing future offenses. See Cotto
v. State, 829 N.E.2d 520, 526 (Ind. 2005). Even a minor criminal record can be
relevant in assessing character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.
Ct. App. 2007). Whether prior offenses are significant depend on “the gravity,
nature and number of prior offenses as they relate to the current offense.”
Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999).
[8] From 2010 to 2013, Spence committed six offenses, four of which were felony
property crimes. Specifically, one of those four was for burglary. We agree
with the trial court that Spence’s criminal record indicates “typical escalation,”
tr. p. 26, given that these past offenses are similar to the current offense and that
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Spence has not been deterred by his prior contacts with the criminal justice
system.
[9] Additionally, Spence argues that his guilty plea should be taken into
consideration as a reflection of character because his plea shows that he has
accepted responsibility and it saves the State time and expenses by foregoing
trial. First, after review of the probable cause affidavit in Spence’s case, the
State clearly had substantial evidence of Spence’s guilt. Second, Spence
received substantial benefit from his plea agreement. The maximum sentence
for a Level 4 felony is twelve years and Spence’s sentence was capped at six.
Ind. Code § 35-50-2-5.5. The State also agreed to drop the theft and gang
enhancement charges against Spence. Spence was not ordered to serve any of
his six-year sentence in the Department of Correction; instead, he was allowed
to execute four of those years on In-Home Detention and the other two were
suspended to formal probation.
[10] Defendant has failed to persuade us that his sentence was inappropriate. The
judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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