Michael S. Dornbusch v. State of Indiana

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jul 27 2012, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JONATHAN M. YOUNG GREGORY F. ZOELLER
Law Office of Jonathan M. Young, P.C. Attorney General of Indiana
Newburgh, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL S. DORNBUSCH, )
)
Appellant-Defendant, )
)
vs. ) No. 87A01-1112-CR-604
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WARRICK SUPERIOR COURT
The Honorable Robert R. Aylsworth, Judge
Cause Nos. 87D02-1102-FD-77, 87D02-1102-FB-78, 87D02-1102-FB-79,
87D02-1102-FB-80, 87D02-1102-FB-81
July 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Michael S. Dornbusch appeals the sentence he received after pleading guilty to four
counts of Class B felony burglary1 and one count of Class D felony attempted residential
entry.2 He raises two issues, which we restate as whether the trial court abused its discretion
by ordering his sentence served consecutive to his sentence in Vanderburgh County and
whether his sentence is inappropriate. We affirm.
FACTS AND PROCEDURAL HISTORY
Between December 3, 2010 and January 17, 2011, Dornbusch burglarized multiple
residences in Vanderburgh and Warrick counties. He drove a 1995 green Nissan truck and
used pry-bars to gain entry to the homes. On January 17, 2011, Dornbusch was arrested
during a burglary in Vanderburgh County. Police recovered some of the stolen items from
Dornbusch’s residence.
Dornbusch agreed to plead guilty in the Warrick County cases to four counts of Class
B felony burglary and one count of Class D felony attempted residential entry. The State
agreed not to file an habitual offender enhancement. The Warrick Superior Court sentenced
Dornbusch to fifteen years for each burglary charge and to three years for the attempted
residential entry charge. The court ordered all five sentences to run concurrent with each
other, but the court then ordered the cumulative fifteen-year sentence ordered herein to be
served consecutive to the fifteen-year sentence Dornbusch was ordered to serve for sixteen
convictions in Vanderburgh County.
1
Ind. Code § 35-43-2-1.
2
Ind. Code § 35-43-2-1.5.
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DISCUSSION AND DECISION
1. Abuse of Discretion
Dornbusch first argues the trial court abused its discretion in ordering his sentence
served consecutive to the Vanderburgh County sentence. Although he concedes the trial
court had authority to so order, he argues the trial court did not properly consider the
aggravating and mitigating circumstances.
A decision to impose consecutive or concurrent sentences is within the trial court’s
sound discretion and is reviewed only for an abuse of discretion. Gellenbeck v. State, 918
N.E.2d 706, 712 (Ind. Ct. App. 2009). Although a trial court is required to state its reasons
for imposing consecutive sentences, it may rely on the same aggravators to impose
consecutive sentences as were used to pronounce sentences greater than the advisory. Id. A
single aggravating circumstance may support the imposition of consecutive sentences. Id.The trial court found Dornbusch’s prior criminal history to be an aggravating factor.
Dornbusch was convicted of eight counts of Class B felony burglary and eight counts of
Class D felony theft in Vanderburgh County for crimes that overlapped with the acts
underlying the five convictions herein. In addition, between 1992 and 1999 in South
Carolina, Dornbusch was convicted of four misdemeanor property offenses, two felony
property offenses, two counts of assault and one count of domestic violence. We find no
abuse of discretion in the court finding an aggravator in that history. See Smith v. State, 908
N.E.2d 1251, 1253 (Ind. Ct. App. 2009) (holding criminal history is a valid aggravator).
The trial court also found the nature and circumstances of Dornbusch’s crimes was an
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aggravating circumstance: “The number and quality of the crimes committed by the
defendant in Vanderburgh and Warrick Counties, within a relatively short period of time, is
shocking. I can’t ever remember anyone that I’m aware of locally committing more
burglaries in a shorter period of time . . . .” (App. Vol. 1 at 52-3.) The victim impact
statements indicate the combined unrecovered loss for Dornbusch’s Warrick County victims
was greater than two thousand dollars, while the combined unrecovered loss for his
Vanderburgh County victims was greater than forty-four thousand dollars.
Dornbusch contends the trial court should have considered additional mitigating
circumstances. The trial court acknowledged Dornbusch’s guilty plea was a mitigating
circumstance, but did not find any others. A trial court abuses its discretion in sentencing if it
overlooks “substantial” mitigating factors that are “clearly supported by the record.”
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g on other grounds
875 N.E.2d 218 (Ind. 2007). Dornbusch asserts the trial court should have considered as
mitigators his remorse, untreated mental disorders, drug addiction, and completion of
numerous programs in jail, but he has not pointed to evidence in the record that demonstrates
these mitigators are sufficiently substantial to support finding an abuse of the trial court’s
discretion. See, e.g., Sharkey v. State, 967 N.E.2d 1074, 1079 (Ind. Ct. App. 2012) (declining
to find abuse of discretion in court’s failure to find remorse a mitigator).
In light of the aggravators and finding no error in the trial court’s rejection of
Dornbusch’s additional alleged mitigators, the trial court was well within its discretion to
order his sentence to be served consecutive to the sentence in Vanderburgh County.
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2. Inappropriateness
Dornbusch argues those same alleged mitigators reflect on his character and should
have resulted in a lesser sentence, making this sentence inappropriate. We disagree.
We “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. App. Rule 7(B). In our review, “we must
and should exercise deference to a trial court’s sentencing decision . . . .” Stewart v. State,
866 N.E.2d 858, 866 (Ind. Ct. App. 2007). We consider not only the aggravators and
mitigators found by the trial court, but also any other factors appearing in the record. Roney
v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. “The defendant has the
burden of persuading us that his sentence is inappropriate.” King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008).
Dornbusch argues the trial court should not have ordered him to serve the fifteen years
for his five convictions herein consecutive to the fifteen years he was ordered to serve for
sixteen convictions in Vanderburgh County. Dornbusch’s offenses in Warrick County
resulted in unrecovered losses to his victims of over two thousand dollars, and his offenses in
Vanderburgh County resulted in unrecovered losses in excess of forty-four thousand dollars.
When we consider the character of the offender, “one relevant fact is the defendant’s
criminal history.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The
significance of criminal history depends on the “gravity, nature, and number of prior offenses
in relation to the current offense.” Id. Dornbusch’s criminal history includes the five
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convictions herein, sixteen convictions in Vanderburgh County, and nine convictions from
South Carolina. Six of the nine convictions from South Carolina are for property crimes,
similar to those for which Dornbusch is being convicted herein.
Given Dornbusch’s prior criminal history, the nature of the many offenses committed
in Vanderburgh and Warrick Counties, and his admitted daily use of methamphetamine,
cocaine, marijuana, and alcohol, we cannot say the trial court’s sentence was inappropriate.
Affirmed.
BARNES, J., and FRIEDLANDER, J., concur.
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