Ryan W. Rogers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Aug 14 2019, 6:08 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ryan W. Rogers, August 14, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3043
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1806-F3-19
Tavitas, Judge.
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Case Summary
[1] Ryan W. Rogers appeals his sentence, received pursuant to his guilty plea, for
aggravated battery, a Level 3 felony, and the use of a firearm sentencing
enhancement. We affirm.
Issue
[2] Rogers raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of his offense and his character.
Facts
[3] On May 30, 2018, D.T. received a text from her then-boyfriend, Rogers, whom
she had allowed to move into her house. Rogers told D.T., through text
messages, that he had made dinner and it would be ready for her once she
arrived home. Rogers asked D.T. what time she would return home, and she
told him that she would return around 7:00 p.m. Before D.T. arrived, Rogers
unplugged the garage door opener. When D.T. arrived home, she attempted to
open the garage door, but it would not work. Rogers was standing at the front
door and held it open for D.T.
[4] As D.T. walked inside her home, Rogers grabbed her arm, threw D.T.’s
cellphone against the wall, and threw D.T. on the couch. Rogers placed a
dinner plate on a table in front of the couch, and he placed a pistol with bullets
next to the plate. Rogers began hitting D.T. on her back and told her to eat the
food that he had prepared for her. Rogers told D.T. that she was going to die
and that he was going to kill her. Rogers then grabbed the gun and discharged
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two blank rounds near D.T.’s left ear. Rogers told D.T that the bullets that he
shot next to her ear were only blanks. He also told her that it was not her time
to die yet, but he would kill her later. Rogers then made D.T. watch the movie
“Death Row.” D.T. pleaded with Rogers for her life. D.T. told Rogers that she
would give him money and drugs if he wanted. Rogers replied to D.T. that he
did not want anything from her.
[5] At one point, Rogers struck D.T. with the butt of his gun on the right side of her
face near her eye. D.T. bled, and Rogers wiped D.T.’s blood off her face and
wiped it on his own face. Rogers pointed his gun at D.T.’s temple and
discharged five more blanks. Rogers continued to taunt D.T., and told her that
he was going to kill her. Rogers then picked up a bullet with a pink tip that he
claimed was a special bullet for D.T. When Rogers began to lose his balance
due to his intoxication, D.T. fled to a neighbor’s residence and hid there until
the police arrived. Rogers searched for D.T. in the neighborhood, and he was
eventually apprehended at D.T.’s house by a special response team. As a result
of these events, D.T. suffered a ruptured ear drum, hearing loss, post-traumatic
stress disorder, depression, and anxiety, and incurred $4,297.40 in medical bills.
[6] On June 5, 2018, the State charged Rogers with: (1) aggravated battery, a Level
3 felony; (2) criminal confinement, a Level 3 felony; (3) domestic battery by
means of a deadly weapon; a Level 5 felony; (4) intimidation, a Level 5 felony;
(5) domestic battery resulting in moderate bodily injury, a Level 6 felony; (6)
criminal recklessness, a Level 6 felony; and (7) domestic battery, a Class A
misdemeanor. On September 14, 2018, the State also charged Rogers with use
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of a firearm as a sentencing enhancement in relation to the offenses committed
on May 30, 2018.
[7] On October 29, 2018, Rogers pleaded guilty pursuant to a plea agreement to
aggravated battery, a Level 3 felony, and the use of a firearm sentencing
enhancement. The remaining charges were dismissed.
[8] At sentencing, the trial court found the following aggravators: (1) Rogers’
criminal history; (2) Rogers had unsuccessfully participated in a diversion
agreement for a domestic battery against D.T. before committing the instant
offense; (3) Rogers was on probation in a separate county when he committed
the instant offense; (4) Rogers’ character and attitude during the sentencing
hearing, which showed a lack of remorse; (5) Rogers’ violation of the no
contact order when he attempted to directly and/or indirectly contact D.T.; and
(6) that the harm, injury, loss, or damage suffered by D.T. was significant and
greater than the elements necessary to prove the commission of the offense.
[9] The trial court also found the following mitigating factors: (1) Rogers’ difficult
childhood; (2) Rogers’ mental health, substance abuse, and alcohol issues,
which the trial court found diminished by his failure to complete the diversion
program; and (3) Rogers’ guilty plea. The trial court found that Rogers’ guilty
plea was diminished by the benefits Rogers received from the plea agreement.
[10] The trial court sentenced Rogers to fourteen years for his aggravated battery
conviction to be served at the Department of Correction, with twelve years
executed, and two years suspended on probation. The trial court imposed an
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additional eight years for the use of a firearm sentencing enhancement with all
eight years executed at the Department of Corrections. Rogers received an
aggregate sentence of twenty-two years with two of the years suspended to
probation.
Analysis
[11] Rogers asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence “is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden to persuade this court that his
or her sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind.
Ct. App. 2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)),
trans. denied.
[12] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our
review, we do not look to see whether the defendant’s sentence is appropriate or
“if another sentence might be more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).
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[13] We look to the statutory range established for the classification of the offense.
The sentence for a Level 3 felony ranges from three years to sixteen years, with
an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Here, the trial
court imposed a term of fourteen years, with a term of twelve years executed.
The use of a firearm sentencing enhancement ranges from five years to twenty
years, with no advisory sentence. I.C. § 35-50-2-11(g). The trial court imposed
a term of eight years executed for the use of a firearm sentencing enhancement.
In total, the trial court imposed an aggregate sentence of twenty-two years of
which two years were suspended.
[14] “[T]he advisory sentence is the starting point the Legislature has selected as an
appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.
2016), trans. denied. A deviation from the advisory sentence, when determining
the appropriateness of a sentence, requires us to examine whether there is
anything more or less egregious about the offense committed by Rogers that
“makes it different from the ‘typical’ offense accounted for by the legislature
when it set the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind.
Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008),
trans. denied).
[15] Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Rogers’
offense. As the trial court stated at Rogers’ sentencing hearing:
You threatened to kill the woman! The woman who took you
into [her] home when you were homeless. You had nowhere else
to go, and she took you in. And how do you treat her? You set
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up her house, you lock the garage door, you disassemble the
electric remote, and you set a trap for this woman.
*****
You created this trap for her. You call her all nice or text her and
say hey, you know, I’ve got dinner ready for you. She comes
home thinking maybe you’ve turned the corner.
*****
So, I don’t think you can blame all this on alcohol where you just
instinctively reacted. It’s a horrific, horrific crime that you’ve
committed here. You held her captive. You held her hostage.
You tortured the poor woman saying this is it, I’m gonna [sic]
kill you. Held the gun to her head. She had every reason to
believe this is it. That she’s watching her life go through, go past
in her mind. And then you shoot a blank at her. Well wasn’t
that nice. Ha! Ha! Scared ya! Let’s do it again. And again.
And again. Every time, scaring the heck out of her, every time
making her think she’s gonna lose her life. It is horrific. And, it
can’t just be ignored by saying this is an immature twenty-one[-
]year[-]old who was drunk and has some mental health issues. I
don’t buy it.
Conf. Tr. Vol. II pp. 56-58. Regardless of his assertion that he “was not in his
right mind” because he was “under the influence of alcohol and
methamphetamine[,]” the nature of Rogers’ offense is horrific. Appellant’s Br.
pp. 9-10. Under the pretense of making dinner, Rogers lured D.T. home so that
he could execute his plan of trapping and terrorizing her.
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[16] As the trial court noted, Rogers disarmed the garage door to minimize D.T.’s
options if she tried to escape. Rogers proceeded to torture D.T. once she came
home by holding D.T. captive, telling D.T. that she was going to die, hitting
her, and continuously shooting blank rounds next to her ear. During Rogers’
sentencing, D.T. testified that she has a ruptured eardrum and suffers from
anxiety, depression, and post-traumatic stress disorder as a result of Rogers’
attack on her. D.T. also testified that she has recurring nightmares, that she
had to get stitches on the right side of her face, and that she suffers from hearing
loss. Additionally, D.T. testified that Rogers prompted someone to contact her
on Facebook from prison. This person asked D.T. where she lived and stated
that he could not believe that D.T. put Rogers in jail.
[17] Next, we consider Rogers’ character. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Rogers’ criminal
history does not reflect well upon his character. His criminal history includes
convictions for intimidation, leaving the scene of an accident, and operating a
vehicle with a controlled substance in his body. As of the date of the
presentence investigation report, Rogers had two petitions to revoke probation
filed against him, as well a pending outstanding warrant. Rogers was on a
diversion agreement for a prior battery against D.T. at the time of his offense.
He was also on probation for his previous intimidation offense.
[18] The trial court observed Rogers’ attitude and noted Rogers’ lack of remorse as
an aggravating factor. During Rogers’ sentencing, D.T. testified that Rogers,
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while in jail, convinced people to contact her. When Rogers addressed the
court, he stated that “[D.T.] said someone contacted her from jail. That’s a lie.
I’ve never told anyone her name in the jail.” Conf. Tr. p. 42.
[19] After Rogers addressed the trial court, the trial court remarked:
Your character and attitude concerns the Court. I do think that
you’ve displayed an attitude and character of violence, anger
management. Also, your character and attitude indicated to me
that you’re not necessarily that remorseful. While you’ve been in
jail for these last 182 days, you’ve done nothing to improve
yourself. . . . Your character and attitude also concern me here
today. This young woman who you victimized, who just talked
about everything she went through and is still going through, and
what do you do, you stand up and call her a liar! A liar! So,
while you express remorse, I’m not sure you’re completely
remorseful with that kind of attitude.
Id. at 60-61. Rogers’ actions during his sentencing do not reflect well upon his
character. Rogers has not convinced us that his sentence is inappropriate in
light of the nature of the offense and his character.
Conclusion
[20] Rogers has failed to meet his burden of demonstrating that his sentence is
inappropriate in light of the nature of his offenses and his character. We affirm.
[21] Affirmed.
Crone, J., and Bradford, J., concur.
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