Adam Sullender v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 30, 2013
• Docket: 20A03-1212-CR-554
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of Jul 30 2013, 11:12 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PETER D. TODD GREGORY F. ZOELLER Elkhart, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ADAM SULLENDER, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1212-CR-554 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Evan S. Roberts, Judge Cause No. 20D01-1205-FC-130

July 30, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge STATEMENT OF THE CASE

Adam Sullender (“Sullender”) appeals his sentence for Class C felony battery of a

pregnant woman1 and Class D felony strangulation.2

We affirm.

ISSUE

Whether the trial court abused its discretion in sentencing Sullender.

FACTS

Kristy Kasper (“Kasper”) and her two-year daughter, R.H., lived with Sullender in

Elkhart, Indiana. Kasper was seven-and-one-half months pregnant with Sullender’s

child. On May 15, 2012, Sullender and Kasper were arguing. Kasper called her

estranged husband, Joshua Huff (“Huff”), and asked him to pick up their daughter. When

Huff arrived, he noticed that Kasper was crying and that she had blood on her arm and a

bruise on her cheek. Huff went to the Elkhart Police Department and spoke with an

officer.

Officers went to Sullender and Kasper’s home and observed that Kasper had a

scratch on the left side of her face and appeared to be upset. Another officer observed

that Kasper seemed scared. All of the officers observed that Kasper was visibly pregnant.

Kasper did not initially cooperate and told the officers that nothing happened.

As the officers returned to their vehicles, a neighbor yelled that Sullender hit

Kasper. The officers enlisted the neighbor to help in the investigation, but Kasper again

1 Ind. Code § 35-42-2-1(a)(8). 2 Ind. Code § 35-42-2-9(b)(1). 2 refused to cooperate. According to their department protocol, the officers left a domestic

violence referral form with Kasper. At that point, Kasper sat down because she was

feeling ill. Kasper stated that her ear hurt and that she had trouble hearing out of it. An

officer observed that the area behind Kasper’s ear was red and bleeding. Officers

requested that an ambulance come to the scene. When the ambulance arrived and the

medic helped her inside, Kasper stated that “[Sullender] hit her.” (Tr. 451). When she

arrived at the hospital, Kasper gave a statement to the police stating that she and

Sullender argued. Kasper further stated that Sullender choked her, slammed her against a

wall, and punched her head.

On May 17, 2012, the State charged Sullender with battery on a pregnant woman,

a Class C felony, strangulation, a Class D felony, and domestic battery, a Class A

misdemeanor. The trial court held a jury trial on October 9, 2012, and the jury convicted

Sullender of all charges.3 The trial court found Sullender’s criminal history, the brutality

of the crime, and his recent release from parole as aggravating circumstances. The trial

court found Sullender’s apology and remorse as mitigating circumstances. The trial court

sentenced Sullender to an aggregate sentence of eleven (11) years, with eight (8) years

executed and three (3) years suspended to probation. Of the eight (8) years executed, the

trial court ordered that Sullender serve four (4) years in the Department of Correction and

four (4) years in a work release program.

3 For double jeopardy purposes, the trial court vacated the conviction for domestic battery. 3 DECISION

Sullender argues that the trial court abused its discretion in determining his

sentence. Specifically, he contends that the trial court failed to properly consider the

hardship his incarceration would cause his family.

Notwithstanding the authority afforded to appellate courts by Indiana Appellate

Rule 7(B), “sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion.” Anglemeyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on other grounds on reh’g 875 N.E.2d 218. 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,

473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in

sentencing a defendant by: (1) failing to enter a sentencing statement; (2) entering a

sentencing statement that explains reasons for imposing the sentence but the record does

not support the reasons; (3) omitting reasons that are clearly supported by the record and

advanced for consideration; or (4) imposing a sentence for reasons that are improper as a

matter of law. Anglemeyer, 868 N.E.2d at 490. An allegation that the trial court failed to

identify or find a mitigating factor requires the defendant to establish that the mitigating

evidence is both significant and clearly supported by the record. Rascoe v. State, 736

N.E.2d 246, 249 (Ind. 2000). A trial court is not obligated to accept what a defendant

contends to be a mitigating circumstance. Id. If an abuse of discretion is found, remand

for resentencing may be appropriate “if we cannot say with confidence that the trial court

4 would have imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Anglemeyer, 868 N.E.2d at 491.

Here, we first note that Ind. Code § 35-38-1-7.1(b)(10) allows a trial court to

consider whether incarceration “will result in an undue hardship to the person or the

dependents of the person.” (emphasis added). Our Indiana Supreme Court has stated

that, “[m]any persons convicted of serious crimes have one or more children and, absent

special circumstances, trial courts are not required to find that imprisonment will result in

undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). At his

sentencing, Sullender presented a letter from his mother and testimony from Kasper

asserting that his incarceration would be a hardship. However, neither the letter nor

Kasper’s testimony presented any special circumstances that would have mandated the

trial court’s consideration. Moreover, Sullender received alternative placement for a

portion of his sentence despite the fact that he was recently released from parole for a

violent felony.4 In sum, the record showed no special circumstances that would have

warranted Sullender’s entire sentence to be served on work release. Accordingly, the

trial court did not abuse its discretion in sentencing Sullender.

Affirmed.

VAIDIK, J., and KIRSCH, J., concur.

4 According to the presentence investigation, Sullender was convicted in Michigan for assault with intent to murder and discharged from parole on July 28, 2011. 5