MEMORANDUM DECISION FILED Nov 08 2017, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Theodore J. Minch Curtis T. Hill Jr. Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ace Michaels, November 8, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1705-CR-1061 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause Nos. 73D02-1605-F6-180 73D02-1605-F6-190
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 1 of 7 Case Summary [1] Appellant-Defendant Ace Michaels pled guilty to Level 6 felony criminal
confinement and Level 6 felony failure to register as a sex offender. The trial
court sentenced Michaels to 730 days executed for the criminal confinement
conviction and 365 days suspended for failure to register as a sex offender. The
sentences were ordered to be served consecutively.
[2] Michaels raises the following restated issues: 1) whether the trial court abused
its discretion in ordering consecutive sentences and 2) whether Michaels’s
sentence is inappropriate in light of the nature of his offenses and character.
Because the trial court did not abuse its discretion and Michaels’s sentence is
not inappropriate, we affirm.
Facts and Procedural History [3] Michaels moved in with L.L. and L.L.’s three-year-old grandson in May of
2016 in exchange for some him completing work around her house. On May
10, 2016, L.L. became angry because Michaels returned to the house very
intoxicated. When L.L.’s anger became evident, Michaels responded by
running towards L.L. screaming and cursing. App. Vol. II, p. 17. L.L.
attempted to leave with her grandson but was stopped when Michaels slammed
the front door closed, punched L.L. in the stomach, and slapped her across the
face. L.L was eventually able to get away from Michaels with her grandson
and called the police from a neighbor’s house.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 2 of 7 [4] The State subsequently charged Michaels with criminal confinement,
intimidation, and battery in cause number 73D02-1605-F6-180 (“Cause 180”).
Michaels is also a convicted sex offender in Illinois and is required to register as
a sex offender in Indiana. Because Michaels failed to register his address as
required, the State charged Michaels with Level 6 felony failure to register in
cause number 73D02-1605-F6-190 (“Cause 190”). On March 13, 2017,
Michaels pled guilty to Level 6 felony criminal confinement in Cause 180 and
to failing to register as a sex offender in Cause 190.
[5] The trial court sentenced Michaels to 730 days of incarceration in Cause 180 on
April 10, 2017. That same day, in Cause 190, the trial court sentenced
Michaels to one year, all suspended to probation. The trial court ordered that
the sentence for Cause 190 be served consecutively to the sentence for Cause
180.
Discussion and Decision [6] Michaels argues that the trial court abused its discretion when it ordered him to
serve his sentences consecutively. Additionally, Michaels argues that his
sentence is inappropriate in light of the nature of his offense and character.
I. Abuse of Discretion [7] We begin by noting that sentencing decisions rest within the sound discretion of
the trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 3 of 7 reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id.
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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 and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
[8] Id. at 490-91. “The decision to impose consecutive sentences lies within the
discretion of the trial court. However, a trial court is required to state its
reasoning for imposing consecutive sentences. In order to impose consecutive
sentences, a trial court must find at least one aggravating circumstance.”
McBride v. State, 992 N.E.2d 912, 919 (Ind. Ct. App. 2013).
[9] In claiming that the trial court abused its discretion in sentencing him, Michaels
argues that the trial court improperly balanced the aggravating and mitigating
circumstances. This is a request for us to reweigh the aggravators and
mitigators which we will not do. See Anglemyer, 868 N.E.2d at 491. Moreover,
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 4 of 7 based upon a review of the record, there was ample evidence to support the trial
court’s findings.
[10] The trial court found that Michaels’s criminal history was an aggravating
circumstance, which justified the consecutive sentences. Specifically, the trial
court said that Michaels has “past criminal history [that] haunts” him. Tr. p.
33. This aggravating circumstance alone was sufficient to justify Michaels’s
consecutive sentences. See Anglemyer, 868 N.E.2d at 491. Therefore, the trial
court did not abuse its discretion in sentencing Michaels to consecutive
sentences.
II. Appropriateness of Sentence [11] Under Indiana Appellate Rule 7(B), “[t]he 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.” When reviewing such claims, we
“concentrate less on comparing the facts of the [case at issue] to others, whether
real or hypothetical, and more on focusing on the nature, extent, and depravity
of the offense for which the defendant is being sentence, and what it reveals
about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.
App. 2008) (internal quotes and citations omitted). Michaels, as the defendant,
bears the burden of persuading us that his sentence is inappropriate.
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MEMORANDUM DECISION FILED Nov 08 2017, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Theodore J. Minch Curtis T. Hill Jr. Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ace Michaels, November 8, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1705-CR-1061 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause Nos. 73D02-1605-F6-180 73D02-1605-F6-190
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 1 of 7 Case Summary [1] Appellant-Defendant Ace Michaels pled guilty to Level 6 felony criminal
confinement and Level 6 felony failure to register as a sex offender. The trial
court sentenced Michaels to 730 days executed for the criminal confinement
conviction and 365 days suspended for failure to register as a sex offender. The
sentences were ordered to be served consecutively.
[2] Michaels raises the following restated issues: 1) whether the trial court abused
its discretion in ordering consecutive sentences and 2) whether Michaels’s
sentence is inappropriate in light of the nature of his offenses and character.
Because the trial court did not abuse its discretion and Michaels’s sentence is
not inappropriate, we affirm.
Facts and Procedural History [3] Michaels moved in with L.L. and L.L.’s three-year-old grandson in May of
2016 in exchange for some him completing work around her house. On May
10, 2016, L.L. became angry because Michaels returned to the house very
intoxicated. When L.L.’s anger became evident, Michaels responded by
running towards L.L. screaming and cursing. App. Vol. II, p. 17. L.L.
attempted to leave with her grandson but was stopped when Michaels slammed
the front door closed, punched L.L. in the stomach, and slapped her across the
face. L.L was eventually able to get away from Michaels with her grandson
and called the police from a neighbor’s house.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 2 of 7 [4] The State subsequently charged Michaels with criminal confinement,
intimidation, and battery in cause number 73D02-1605-F6-180 (“Cause 180”).
Michaels is also a convicted sex offender in Illinois and is required to register as
a sex offender in Indiana. Because Michaels failed to register his address as
required, the State charged Michaels with Level 6 felony failure to register in
cause number 73D02-1605-F6-190 (“Cause 190”). On March 13, 2017,
Michaels pled guilty to Level 6 felony criminal confinement in Cause 180 and
to failing to register as a sex offender in Cause 190.
[5] The trial court sentenced Michaels to 730 days of incarceration in Cause 180 on
April 10, 2017. That same day, in Cause 190, the trial court sentenced
Michaels to one year, all suspended to probation. The trial court ordered that
the sentence for Cause 190 be served consecutively to the sentence for Cause
180.
Discussion and Decision [6] Michaels argues that the trial court abused its discretion when it ordered him to
serve his sentences consecutively. Additionally, Michaels argues that his
sentence is inappropriate in light of the nature of his offense and character.
I. Abuse of Discretion [7] We begin by noting that sentencing decisions rest within the sound discretion of
the trial court and are reviewed on appeal only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 3 of 7 reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the
decision is clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id.
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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 and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
[8] Id. at 490-91. “The decision to impose consecutive sentences lies within the
discretion of the trial court. However, a trial court is required to state its
reasoning for imposing consecutive sentences. In order to impose consecutive
sentences, a trial court must find at least one aggravating circumstance.”
McBride v. State, 992 N.E.2d 912, 919 (Ind. Ct. App. 2013).
[9] In claiming that the trial court abused its discretion in sentencing him, Michaels
argues that the trial court improperly balanced the aggravating and mitigating
circumstances. This is a request for us to reweigh the aggravators and
mitigators which we will not do. See Anglemyer, 868 N.E.2d at 491. Moreover,
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 4 of 7 based upon a review of the record, there was ample evidence to support the trial
court’s findings.
[10] The trial court found that Michaels’s criminal history was an aggravating
circumstance, which justified the consecutive sentences. Specifically, the trial
court said that Michaels has “past criminal history [that] haunts” him. Tr. p.
33. This aggravating circumstance alone was sufficient to justify Michaels’s
consecutive sentences. See Anglemyer, 868 N.E.2d at 491. Therefore, the trial
court did not abuse its discretion in sentencing Michaels to consecutive
sentences.
II. Appropriateness of Sentence [11] Under Indiana Appellate Rule 7(B), “[t]he 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.” When reviewing such claims, we
“concentrate less on comparing the facts of the [case at issue] to others, whether
real or hypothetical, and more on focusing on the nature, extent, and depravity
of the offense for which the defendant is being sentence, and what it reveals
about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.
App. 2008) (internal quotes and citations omitted). Michaels, as the defendant,
bears the burden of persuading us that his sentence is inappropriate. Sanchez v.
State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Michaels received
approximately two years executed and one year suspended for his two Level 6
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 5 of 7 felony convictions. This sentence is significantly shorter than the maximum six
years of incarceration he could have potentially received for the two
convictions.
[12] With respect to the nature of the offense, Michaels physically and verbally
lashed out at his victim and confined her in a drunken rage. This violence
occurred in the presence of the victim’s three-year-old grandson. Michaels
attempts to downplay his crimes by saying “the offense, although I understand
was traumatic and everything, it ended up, it could have been a lot worse, I
guess.” Tr. p. 33. We do not believe that hitting and confining a victim in the
presence of a young child should be downplayed.
[13] As for his character, Michaels has an extensive criminal history of convictions.
Michaels’s criminal history includes: being convicted of sexual abuse in
Illinois, a registry-related conviction in Bartholomew County, a registry-related
conviction in Illinois; a conviction for robbery in California, and an unlawful
use of a deadly weapon conviction in Missouri. Michaels also has convictions
for battery, invasion of privacy, resisting law enforcement, public intoxication,
and criminal mischief.
[14] Michaels, however, argues that the trial court should have given more weight to
the fact that he suffers from mental illness, he had a difficult childhood, and his
efforts to seek treatment. This is a request for us to reweigh the aggravating and
mitigating factors which we will not do. See Anglemyer, 868 N.E.2d at 491.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 6 of 7 Based on the above-mentioned evidence of Michaels’s character and nature of
his offense, he has failed to establish that his sentence was inappropriate.
Conclusion [15] After reviewing the record, we conclude that the trial court did not abuse its
discretion when it ordered Michaels’s sentences to run consecutively. We also
conclude that Michaels failed to establish that his sentence was inappropriate in
light of his character and the nature of his offense. Consequently, we affirm the
trial court’s judgment.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 7 of 7