Jason Monohan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 02 2017, 9:16 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
Bernice A. N. Corley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Monohan, June 2, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2649
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G03-1608-F2-30649
Vaidik, Chief Judge.
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Case Summary
[1] Jason Monohan was convicted of robbery resulting in serious bodily injury, two
counts of criminal confinement with a deadly weapon, and kidnapping. The
trial court sentenced him to thirty years for the robbery conviction, ten years for
each of the criminal confinement convictions, and five years for the kidnapping
conviction. The trial court ordered the two criminal confinement sentences to
run concurrent with one another but consecutive to the robbery and kidnapping
sentences, for an aggregate term of forty-five years. Monohan was sentenced to
a total of forty-five years, all executed in the Department of Correction (DOC).
[2] Monohan appeals, arguing that the evidence is insufficient to support his
conviction for robbery resulting in serious bodily injury. He also argues that the
trial court abused its discretion when it ordered him to serve ten years, instead
of the advisory sentence of nine years, for his criminal-confinement convictions.
Last, he argues that an aggregate sentence of forty-five years is inappropriate.
Finding sufficient evidence and no issues with sentencing, we affirm.
Facts and Procedural History
[3] Around 2:30 a.m. on the morning of August 1, 2016, Jessica Pfeil received a
text message from Zachary Bolling’s phone number. The text requested that
Pfeil bring $400 to Bolling’s house because Bolling’s landlord had locked him
out and he would not be let inside until he paid the landlord $400. Pfeil, who
had recently started dating Bolling, texted back that she could not give Bolling
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the money. She then received texts asking her to bring her iPad and phone to
give to the landlord as collateral. Again, Pfeil said no, but she agreed to meet
Bolling at his house and pick him up. Pfeil thought the texts were “slightly
gibberish” and that they did not sound like Bolling because “it said that his
parents were going to be called[,] and his dad [had] passed away.” Tr. Vol. II
p. 10.
[4] Pfeil arrived at the house around 3:00 a.m. and did not see Bolling outside the
house, so she called him. Bolling told her that he had been allowed back inside
and had just gotten out of the shower, but the front door was unlocked and she
should come inside and wait for him to get dressed. The entire house was dark
when Pfeil entered, so she began calling out for Bolling but did not get a
response. She walked further into the house, yelling Bolling’s name. Pfeil then
saw a group of people she did not recognize standing in the kitchen—these
individuals were later identified as Monohan, Michael Bennett, Katrina Grider,
and Meg Thompson. Monohan had ordered the group to remain quiet when
Pfeil entered the house and told Thompson and Grider to attack Pfeil. He also
threatened Thompson, “if she screams, you’re dead.” Id. at 227.
[5] Pfeil turned and began running for the front door but was tackled by Grider and
Thompson, who placed a towel over her mouth to prevent her from screaming.
Bennett told Pfeil, “don’t scream or I will kill you.” Id. at 228. Grider and
Thompson punched Pfeil multiple times in her back and legs. Pfeil tried to fight
back but was unsuccessful. Bennett placed an object, which Pfeil believed was
a gun, against the back of her head and said that if she did not stop fighting he
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would kill her. Pfeil immediately stopped fighting and was escorted to the back
bedroom of the house, where Bolling was tied up and sitting inside a closet,
naked from the waist down.
[6] Monohan, who had taken possession of Pfeil’s car keys and cell phone,
explained to her that the plan was to take $600 from her bank account and then
let her go. He also said that after they had the money they were going to kill
Bolling and stage it as an overdose. Fearing that Monohan would kill her if she
did not comply, Pfeil gave him her debit card, her ATM PIN, and the code to
unlock her cell phone. Before leaving the bedroom, the group kicked Bolling
and called him a “piece of shit.” Id. at 30. One kick was to Bolling’s face and
caused his nose to bleed. Monohan instructed Thompson to keep watch over
Pfeil and Bolling and said, “[I]f they move, you know, kill them.” Id. at 230.
Thompson was given two knives by Bennett, who left with Monohan to go get
money from Pfeil’s account from an ATM. Monohan and Bennett were
unsuccessful getting money from Pfeil’s account and returned to the house.
The sun was coming up at this point, so they decided to move Bolling and Pfeil
to the basement.
[7] Bolling, who was still naked from the waist down, was placed in a utility closet
in the basement, and his original restraints of electrical tape and cords were
replaced with zip ties. Pfeil was placed in the opposite corner of the basement
and was also restrained with zip ties. Both Bolling and Pfeil had duct tape
placed over their mouths. Monohan then left the house to try again to get
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money from Pfeil’s account. He was successful but could retrieve only $500
from the ATM because of Pfeil’s withdrawal limit.
[8] Later that morning, believing that Pfeil was trying to make noise to alert
anyone outside to her presence in the basement, Grider entered the basement
and placed a gag in Pfeil’s mouth and re-taped her mouth shut. Grider then
punched Pfeil in the face, causing Pfeil to hit her head on the cinderblock wall.
Grider rolled Pfeil onto a piece of carpeting covered in dog feces and kicked her
until Pfeil blacked out. Sometime later, Bennett went down to the basement to
notify Pfeil that they needed her to call the bank and increase her withdrawal
limit. He saw that Pfeil’s eye was swollen shut and that she was bleeding.
Bennett was surprised to see that Pfeil was injured; he removed the duct tape,
the gag, and the zip ties and brought her upstairs. Bennett showed Pfeil’s
injuries to Monohan, and Monohan was similarly surprised to see that she had
been beaten. Monohan explained that “the deal was that after the initial jump,
which was really just like a scare tactic,” that Pfeil was not to be touched or
injured in any way. Id. at 55-56. Pfeil identified Grider as her attacker.
[9] At some point, Anthony Doss came to the house and it was decided that
Monohan, Bennett, Doss, and Pfeil would go to Pfeil’s bank. Pfeil would then
speak with a bank teller and withdraw $1000 from her account. To explain the
injury to her eye, Monohan told her to say that she had gotten into a bad car
accident. The plan was executed, including Pfeil explaining to the teller that
she had been in a car accident and needed the money for repairs. See Ex. 8
(surveillance photo of Pfeil and Monohan speaking to a bank teller). Pfeil
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withdrew $1000 from her account and gave it Monohan, and the foursome
returned to Bolling’s house.
[10] Eventually Pfeil was released from confinement, but Monohan refused to
release Bolling, stating that he wanted to keep Bolling at the house and hurt
him. Around 6:00 p.m., approximately fifteen hours after Pfeil arrived at
Bolling’s house, Bolling escaped from the basement and ran to a neighbor’s
house where he called 911. Shortly thereafter, police identified and arrested all
parties that were involved. Monohan was charged with eight counts: Level 2
felony robbery resulting in serious bodily injury, two counts of Level 3 felony
criminal confinement while armed with a deadly weapon—one count for
Bolling and one for Pfeil, Level 5 felony criminal confinement with bodily
injury, Level 3 felony kidnapping while armed with a deadly weapon, Level 5
felony kidnapping committed using a vehicle, Level 5 felony battery resulting in
serious bodily injury, and Class A misdemeanor battery resulting in bodily
injury. A two-day bench trial was held and Monohan was found guilty on all
counts. Due to double-jeopardy concerns, the trial court vacated several of the
convictions, leaving in place robbery resulting in serious bodily injury, both
counts of Level 3 criminal confinement, and kidnapping committed using a
vehicle.
[11] At sentencing, Pfeil read a victim impact statement in which she detailed the
effects of her physical and psychological injuries: pain in her eye, numbness in
her face, constant anxiety, and trouble feeling safe when alone. The State then
argued that Monohan should be sentenced to fifty-two years, all executed at the
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DOC. The State argued that multiple aggravating circumstances existed:
Monohan’s extensive criminal history—dating back to when he was fifteen
years old; his offenses have become more violent over time; he received twelve
misconduct violations while in the DOC for previous convictions; he was
released from the DOC on May 10, 2016, not even three months before the
events at issue in this case; and he was on pre-trial release for five pending cases
when he committed the crimes against Bolling and Pfeil.
[12] The trial court found multiple mitigating and aggravating circumstances.
Regarding the mitigating circumstances, the court accepted Monohan’s genuine
expression of remorse and found that he had a history of mental-health and
substance-abuse issues. The court agreed with the State’s list of aggravating
circumstance and also found that Monohan had been given short-term
sentences, probation, home detention, and a sentence at community
corrections, all of which he failed. See Tr. Vol. II p. 104 (“So I see not only an
increase in the violence that you’ve committed, I see an increase in the
seriousness of your sentences, and the fact that you still have not rehabilitated
yourself through the sentences that the court has given you. I don’t know how
many more opportunities for rehabilitation the Court could give you than what
the courts already did through those different sentences that you received.”).
The trial court concluded that the aggravating circumstances far outweighed the
mitigating circumstances and sentenced Monohan to thirty years for robbery
resulting in serious bodily injury, concurrent sentences of ten years for the two
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counts of criminal confinement, and five years for kidnapping, to be served
consecutively for an aggregate term of forty-five years in the DOC.
[13] Monohan now appeals.
Discussion and Decision
[14] Monohan raises three arguments on appeal. First, he argues that the evidence
is insufficient to support his conviction for robbery resulting in serious bodily
injury. Second, he contends that the court abused its discretion when it
sentenced him a term of ten years for each of his criminal-confinement
convictions, instead of the advisory sentence of nine years. Third, he argues
that his aggregate sentence of forty-five years is inappropriate.
I. Sufficiency of the Evidence
[15] Monohan argues that the evidence is insufficient to support his conviction for
robbery resulting in serious bodily injury. When reviewing the sufficiency of
the evidence, we neither reweigh the evidence nor determine the credibility of
witnesses; that role is reserved for the factfinder. Bailey v. State, 979 N.E.2d 133,
135 (Ind. 2012). “The evidence—even if conflicting—and all reasonable
inferences drawn from it are viewed in a light most favorable to the conviction.”
Id. A conviction will be affirmed “if there is substantial evidence of probative
value supporting each element of the crime from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.” Id.
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[16] Robbery occurs when a person “knowingly or intentionally takes property from
another person or from the presence of another person: (1) by using or
threatening the use of force on any person; or (2) by putting any person in fear .
. . .” Ind. Code § 35-42-5-1. Robbery, as defined, is a Level 5 felony, but the
crime is elevated to a Level 2 felony if it results in serious bodily injury to any
person other than the defendant. Id. Monohan does not dispute that he
committed robbery as a Level 5 felony, but he argues that he cannot be held
liable for the serious-bodily-injury enhancement because Pfeil’s injuries were
not a natural and probable consequence of the robbery. We disagree.
[17] An individual who sets out with another or a group to accomplish a criminal
act is legally responsible for his own actions as well as all actions taken by his
companions which are the natural and probable consequence of the common
plan, even if the action was not intended as part of the original design. Griffin v.
State, 16 N.E.3d 997, 1003 (Ind. Ct. App. 2014); see also Breaz v. State, 214 Ind.
31, 13 N.E.2d 952, 953 (1938). The act of the companion must be done in
furtherance of the common plan. Breaz, 13 N.E.2d at 953. It is not necessary
that the evidence show the individual personally participated in the commission
of each element of the crime because the act of one companion is imputed to
all. Griffin, 16 N.E.3d at 1003.
[18] Here, the original plan was to get Pfeil to Bolling’s house, subdue her, rob her,
let her go, and then kill Bolling and make it look like an overdose. Monohan
ordered Thompson and Grider to attack Pfeil when she entered Bolling’s house,
ordered that Bolling and Pfeil be bound and gagged, did not object when knives
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were given to Thompson to guard Bolling and Pfeil, and did not object when
others in the group made threats of physical violence to Pfeil including threats
of killing her. Monohan even gave an order to kill Bolling or Pfeil if they
moved. Tr. Vol. II p. 230 (“[I]f they move, you know, kill them.”).
Additionally, Monohan had Bolling and Pfeil moved to the basement to further
conceal their presence in the house. Grider went to the basement because she
thought she heard Pfeil making noises to alert anyone outside that she was in
the basement. Grider attacked Pfeil to keep her from making additional noises
and to conceal her presence in the basement. Given the violent undertone of
the entire robbery and Grider’s belief that she was helping hide Pfeil and
Bolling, we conclude that there was sufficient evidence to show that Pfeil’s
injuries were a natural and probable consequence of the original plan. We
therefore affirm Monohan’s conviction for Level 2 felony robbery resulting in
serious bodily injury.1
II. Sentencing
[19] Monohan raises two arguments regarding his sentence. First, he contends that
the trial court erred when it sentenced him to ten years on each of his criminal-
1
Monohan also argues that he is not an accomplice with regards to Pfeil’s injuries because he was not
present in the house when Grider attacked Pfeil. See Wright v. State, 690 N.E.2d 1098, 1106 (Ind. 1997)
(identifying four factors for the Court to balance in determining accomplice liability, including presence at the
scene of the crime). Having concluded that Pfeil’s injuries were the natural and probable consequence of the
robbery, Monohan’s presence during the attack is not necessary for him to be found liable as an accomplice.
See Mauricio v. State, 476 N.E.2d 88 (Ind. 1985) (defendant convicted of felony murder where accomplice
killed victim after defendant had already left scene).
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confinement convictions instead of the advisory term of nine years. Second,
Monohan claims that his aggregate sentence of forty-five years is inappropriate.
A. Confinement Sentences
[20] Monohan contends that the trial court was required to sentence him to the
advisory term of nine years on both of his criminal-confinement convictions.
He relies on Indiana Code section 35-50-2-1.3(c), which states, in part:
In imposing consecutive sentences for felony convictions that are
not crimes of violence (as defined in IC 35-50-1-2(a)) arising out
of an episode of criminal conduct, in accordance with IC 35-50-1-
2 . . . a court is required to use the appropriate advisory sentence
in imposing a consecutive sentence . . . .
[21] Monohan interprets this provision to mean that the trial court was required to
impose the advisory sentence for his criminal-confinement convictions since it
ordered those sentences to run consecutive to his other sentences. But Section
35-50-2-1.3(c) is merely a reference to a former version of Section 35-50-1-2(c),
which capped the consecutive sentences for an episode of non-violent criminal
conduct at “the advisory sentence for a felony which is one (1) class of felony
higher than the most serious of the felonies for which the person has been
convicted.” Ind. Code Ann. § 35-50-1-2(c) (West 2012) (emphasis added).
Effective July 1, 2015, the statute was amended and no longer refers to advisory
sentences. Instead, Section 35-50-1-2(c) states that the consecutive sentence for
an episode of non-violent criminal conduct “shall not exceed the period
described in subsection (d).” P.L. 238-2015 § 16. The language of Section 35-
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50-2-1.3(c) that Monohan relies upon has been rendered obsolete by the current
wording of Section 35-50-1-2(c).2
[22] Furthermore, in Robertson v. State, 871 N.E.2d 280, 285-86 (Ind. 2009), our
Supreme Court made clear that subsection 1.3(c) “was not meant to impose
additional restrictions on a trial court’s ability to impose consecutive sentences”
as outlined in Section 35-50-1-2(c). Monohan’s reliance on subsection 1.3(c) is
misplaced, and the trial court did not err when it sentenced Monohan to ten
years on each count of criminal confinement.
B. Appropriateness
[23] Monohan’s final argument is that his aggregate sentence of forty-five years is
inappropriate in light of the nature of his offenses and his character. 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 defendant.” Ind. Appellate
Rule 7(B).
[24] “The principal role of appellate review should be to attempt to leaven the
outliers . . . but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “[W]hether we regard a
sentence as appropriate at the end of the day turns on our sense of the
2
We encourage our legislature to amend Section 35-50-2-1.3(c) to prevent further confusion.
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culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
“The circumstances do, however, bear on whether consecutive sentences are
appropriate. Whether the counts involve one or multiple victims is highly
relevant to the decision to impose consecutive sentences if for no other reason
than to preserve the potential deterrence of subsequent offenses.” Id. at 1225.
[25] Regarding the nature of the offenses, Monohan orchestrated a plan to get Pfeil
to Bolling’s house, oversaw the majority of the group’s actions concerning Pfeil
and Bolling, personally withdrew funds from Pfeil’s account, and took an
injured Pfeil to the bank so he could obtain more money from her account.
Additionally, Monohan and other members of the group made repeated threats
of violence to Pfeil including death threats, kicked and hit Bolling on multiple
occasions, and kept Pfiel and Bolling confined for fifteen hours. Pfeil provided
the court with a victim impact statement that detailed the on-going effects she
has had to deal with, both physically and psychologically, because of her time
with Monohan.
[26] The trial court also found multiple aggravating factors regarding Monohan’s
character. Since he was fifteen years old, Monohan has been committing
crimes, which are becoming more violent over time. Monohan has also failed
short-term sentences, probation, home detention, and a sentence at community
corrections. He was released from the DOC less than three months before
committing these offenses. Given the nature of these crimes, including that
multiple victims were involved, and Monohan’s character, we conclude the trial
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court’s aggregate sentence of forty-five years, all executed in the DOC, is not
inappropriate.
[27] Affirmed.
Bailey, J., and Robb, J., concur.
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