Michael Anthony Fisher 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 Jan 30 2020, 9:51 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
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Anthony Fisher, January 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1922
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G04-1901-F5-49
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020 Page 1 of 9
[1] Michael Anthony Fisher appeals the sentence imposed by the trial court for
Level 5 felony dealing in a narcotic drug and Level 6 felony resisting law
enforcement, arguing that the trial court erred in its consideration of mitigating
and aggravating circumstances. Finding no error, we affirm.
Facts
[2] On January 24, 2019, the Hammond Police Department Narcotics Unit had a
confidential informant conduct a pre-arranged heroin buy from Fisher. Just
before 11 a.m., a blue Dodge Intrepid, driven by Fisher, arrived at the agreed-
upon location. Fisher exited his vehicle and entered the informant’s vehicle,
handing the informant a cigarette package in exchange for five twenty-dollar
bills. Inside the cigarette package was a “brown rock like substance,”
appellant’s app. vol. II p. 33, which later tested positive for heroin.
[3] Fisher returned to his vehicle after this exchange, at which point officers
wearing outer police identification “moved in to arrest” him and ordered him
not to move. Id. Instead of complying with the officers’ orders, Fisher
accelerated his vehicle and drove away from the scene, prompting a police
chase through town. The officers had their emergency lights activated as they
followed Fisher, but Fisher would not stop. Eventually Fisher stopped and
abandoned his vehicle, fleeing on foot. After a short foot chase, Fisher was
taken to the ground by officers and arrested. In a search incident to arrest,
officers found in Fischer’s pocket the five twenty-dollar bills used by the
informant to purchase the heroin.
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[4] On January 25, 2019, the State charged Fisher, by an eighteen-count charging
information, with three counts of Level 5 felony dealing in a narcotic drug, two
counts of Level 5 felony dealing in cocaine, three counts of Level 6 felony
possession of a narcotic drug, two counts of Level 6 felony possession of
cocaine, three counts of Level 6 felony maintaining a common nuisance, one
count of Level 6 felony resisting law enforcement, two counts of Class A
misdemeanor resisting law enforcement, and two counts of Class B
misdemeanor leaving the scene of an accident.
[5] On June 5, 2019, Marshall agreed to plead guilty to one count of Level 5 felony
dealing in a narcotic drug and one count of Level 6 felony resisting law
enforcement. In exchange, the State agreed to dismiss all remaining counts and
to cap the aggregate executed sentence at four years. The trial court accepted
the plea agreement on July 17, 2019, and at the sentencing hearing held the
same day, it imposed a sentence of four years in the Department of Correction,
with the possibility of a future sentence modification.
[6] During sentencing, the trial court identified the following as aggravating and
mitigating factors:
Aggravating Circumstances:
1. The defendant has had eighteen (18) contacts with the
criminal justice system resulting in twelve (12) misdemeanor
convictions and three (3) felony convictions for a total of
fifteen (15) out of eighteen (18) convictions;
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2. The Court finds that the defendant has a substantial drug
addiction beginning in 1998;
3. The defendant has previously had the benefit of probation, for
which he has failed;
4. The defendant has had prior incarceration which failed to
deter him from a life of crime;
5. The defendant has received a substantial benefit by way of the
plea agreement in that fourteen (14) charges were dismissed;
6. The defendant has had prior substance abuse treatment which
has failed to break him of his drug addiction; and,
7. The defendant has failed to take responsibility for his life and
drug addition [sic].
Mitigating Circumstances:
1. The defendant admitted his guilt by way of a plea agreement,
thus saving the Court and the tax payers of this County the
time and expense of a trial. The Court gives this minimal
weight in that the defendant had great incentive to enter pleas
of guilty due to having fourteen (14) charges dismissed,
2. The defendant has expressed some degree of remorse which
the Court finds hard to believe due to the defendant’s criminal
history.
Id. at 64-65. The trial court concluded that the aggravating factors outweighed
the mitigating factors and imposed the agreed-upon maximum sentence of four
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1922 | January 30, 2020 Page 4 of 9
years. Recognizing the need for addiction treatment, the trial court stated that
after one year in the Department of Correction, Fisher will be sent to a facility
where he can participate in the Purposeful Incarceration Program for addicted
offenders, and that upon successful completion of that program, the trial court
would consider a sentence modification. Fisher now appeals.
Discussion and Decision
[7] Fisher argues that the trial court erred by considering improper aggravators and
failing to recognize certain mitigating circumstances. Specifically, Fisher argues
that the trial court improperly identified multiple aggravators that were all
related to or derivative of the one proper aggravator—Fisher’s criminal history.
With regards to the mitigating circumstances, Fisher contends that the trial
court erroneously failed to acknowledge in its sentencing statement mitigators
that were supported by the record—namely, his commitment to rehabilitation—
and erroneously discounted the weight given to Fisher’s “professed remorse.”
Appellant’s Br. p. 8.
[8] Sentencing decisions are within the sound discretion of the trial court and we
thus afford great deference to the trial court’s judgment. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind.), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial
court may err in its sentencing process if it “enter[s] a sentencing statement that
explains reasons for imposing a sentence—including a finding of aggravating
and mitigating factors if any—but the record does not support the reasons, or
the sentencing statement omits reasons that are clearly supported by the record
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and advanced for consideration, or the reasons given are improper as a matter
of law.” Id. at 490-91. We will not review the relative weight the trial court gave
to any properly found aggravators or mitigators. Id. at 491.
[9] Fisher does not dispute that his criminal history is a valid aggravating factor.
See, e.g., Ind. Code § 35-38-1-7.1(a)(2) (listing “a history of criminal or
delinquent behavior” as one of many possible aggravating circumstances a trial
court may consider during sentencing). Rather, he claims that the six other
aggravators found by the trial court are merely derivative of the criminal history
aggravator and are thus improper. See Morgan v. State, 829 N.E.2d 12, 17 (Ind.
2005) (finding that failure of prior punishments to rehabilitate defendant was
“derivative” of the criminal history aggravator and could not be considered
separately).
[10] In McMahon v. State, however, this Court clarified that the new statutory
sentencing scheme superseded the rule cited by Fisher from Morgan v. State, and
instead allowed for factors like criminal history, being on probation at the time
of an offense, and prior unsuccessful attempts to rehabilitate to each be
considered as separate aggravating circumstances. 856 N.E.2d 743, 751 (Ind.
Ct. App. 2006). In a footnote, the Court wrote:
We do note that in cases arising under the former presumptive
sentencing scheme, a defendant’s criminal history and a judicial
statement that prior attempts to rehabilitate him have been
unsuccessful could not serve as separate aggravating
circumstances because of the restrictions imposed by Blakely [v.
Washington, 542 U.S. 296 (2004)]. Morgan v. State, 829 N.E.2d 12,
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17 (Ind. 2005). Because our legislature has remedied the Blakely
infirmities in our sentencing scheme, this claim of error is not
available to defendants sentenced under the new statutes. In
addition, even under the presumptive scheme, the “failed to
rehabilitate” statement properly adds weight to the criminal
history and “on probation at the same time of the instant offense”
aggravators. Morgan, 829 N.E.2d at 16-18.
Id. at 751 n.8 (some internal citations omitted). As such, we find that the trial
court’s inclusion of several similar aggravating circumstances in Fisher’s case,
though each somewhat related to the criminal history aggravator and to one
another, was not improper. Even if Fisher’s criminal history was the only
proper aggravator, the trial court was nonetheless within its discretion to give it
the weight it did in imposing Fisher’s four-year sentence. See, e.g., Cox v. State,
780 N.E.2d 1150, 1156 (Ind. Ct. App. 2002) (“A sentence enhancement may
still be upheld when a trial court improperly applies an aggravator but other
valid aggravators exist.”).
[11] With respect to the mitigators, Fisher next argues that the trial court erred by
not mentioning his commitment to rehabilitation in its sentencing statement. At
the sentencing hearing, Fisher introduced a certificate of completion for the
Conquering Chemical Dependency program along with a letter from the
instructor stating he had a good attitude and was committed to sobriety; Fisher
had entered the program during the six months he was incarcerated pending
resolution of this case. He also introduced letters from his mother and Duane
Dedelow, the mayor of Hammond and a long-time family friend of the Fishers,
vouching for his commitment to turning his life around.
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[12] In response, when summarizing the mitigating circumstances it found, the trial
court acknowledged Fisher’s stated remorse and desire to change, but expressed
skepticism as to how committed he actually was: “Maybe you’ve expressed
remorse, but I don’t know that it’s credible, because it would seem to me that
for the 15 times that you were in front of other judges, I bet you did the same
thing. . . . I bet you did say, I’m sorry, Judge. This [won’t] happen again, and
then, of course, it did.” Tr. Vol. II p. 38. The trial court expressed a similar
sentiment in its actual sentencing statement, listing as a mitigating circumstance
that Fisher “expressed some degree of remorse,” but that the trial court found it
“hard to believe” given his extensive pattern of criminal conduct. Appellant’s
App. Vol. II p. 65.
[13] Fisher’s argument is without merit. He contends that the trial court failed to
include a mitigating circumstance supported by the record, yet the record shows
the trial court explicitly acknowledged Fisher’s claimed commitment to sobriety
and remorse both at the sentencing hearing and in the sentencing statement
itself. Cf. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (explaining that in the
review of sentencing decisions in a non-capital case, “we are not limited to the
written sentencing statement but may consider the trial court’s comments in the
transcript of the sentencing proceedings”). The trial court also accounted for
Fisher’s need and desire for rehabilitation when it provided for the transfer after
one year to a facility offering the Purposeful Incarceration Program and the
option for a sentence modification upon successful completion of the
program—giving Fisher a chance to prove his commitment to sobriety is
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genuine. As such, Fisher’s claim instead ultimately amounts to a request that
we review the weight given to this particular mitigating circumstance relative to
the other mitigators and aggravators, which we may not do.
[14] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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