Carl Strobel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2016
• Docket: 65A04-1603-CR-582
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2016, 6:37 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 Jake Warrum Gregory F. Zoeller Warrum Law Office Attorney General of Indiana Mt. Vernon, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carl Strobel, December 21, 2016 Appellant-Defendant, Court of Appeals Case No. 65A04-1603-CR-582 v. Appeal from the Posey Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. James M. Redwine, Judge Trial Court Cause No. 65C01-1511-F4-458

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 1 of 11 [1] Following a bench trial, Carl Strobel (“Strobel”) was convicted of Level 6

felony residential entry1 and Class A misdemeanor attempted theft.2 He appeals

his sentence, asserting that the trial court abused its discretion when it

sentenced him.

[2] We affirm.

Facts and Procedural History3 [3] On the evening of November 2, 2015, George and Deborah Morgan and their

son, Ben, (collectively, “the Morgans”) were at their home in Posey County,

Indiana. George heard unknown voices in the laundry room of the home, and

he held the laundry room door shut as the intruders tried to open it. He told the

people to leave, but they did not. Deborah and Ben retrieved firearms kept in

the home, and then the Morgans, armed with one or more weapons, opened the

laundry room door, at which time Strobel, a woman later determined to be

Amy Neighbors (“Neighbors”) and a dog entered the Morgans’ kitchen. None

of the Morgans knew Strobel or Neighbors. Ben, while holding a gun to Strobel

1 See Ind. Code § 35-43-2-1.5. 2 See Ind. Code §§ 35-43-4-2(a), 35-41-5-1. 3 Strobel does not include a Statement of Facts section in his Appellant’s Brief as required by Indiana Appellate Rule 45(A)(6). Pursuant to Indiana Appellate Rule 9(F)(5), Strobel was to request and provide this court with “all portions of the Transcript necessary to present fairly and decide issues on appeal,” and, as this appeal presents sentencing issues, Strobel elected to provide this court with the Transcript of the sentencing hearing only, and not that from the bench trial. Given the sparse record, the State, for its Statement of Facts section, draws facts from the presentence investigation report, which incorporated the probable cause affidavit and appears in Appellant’s Appendix. Appellee’s Br. at 6 n.1; Appellant’s App. at 99-100. We do the same.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 2 of 11 and Neighbors, escorted them out of the house and to their vehicle, which was

a pick-up truck parked approximately fifty yards from the house and next to the

Morgans’ detached garage. Strobel, Neighbors, and the dog got in the vehicle

and drove away.

[4] Meanwhile, Posey County Sheriff’s Department deputies had been dispatched

to investigate what was reported as a burglary in progress at the Morgans’

home. While on the way to the residence, the deputies were informed that the

intruders had left the property in a white Chevrolet pick-up truck and were

heading south. The deputies encountered and stopped the vehicle, which was

carrying Strobel, Neighbors, and the dog. Ben came to the scene and identified

them as the persons and dog that had been in his family’s home. Deputies went

to the Morgan’s home and spoke with George and Deborah, who related the

occurrence. Deputies also viewed the detached garage and determined that

someone had been in it, as well as Deborah’s vehicle, because its center console

was open and its contents appeared to have been rummaged through.

[5] On November 4, 2015, the State of Indiana charged Strobel with: (1) Count 1,

burglary, a Level 4 felony; (2) Count 2, residential entry, a Level 6 felony; and

(3) Count 3, attempted theft, a Class A misdemeanor. Strobel waived his right

to a jury trial. According to Strobel, he conceded at the bench trial that the

residential entry occurred. See Appellant’s Br. at 11.

[6] The trial court found Strobel not guilty of burglary, but found him guilty of

residential entry and attempted theft. At the sentencing hearing, counsel for the

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 3 of 11 parties presented argument concerning the presence of aggravators and

mitigators. Thereafter, the trial court issued a sentencing statement and

identified two mitigators: (1) Strobel waived a jury trial; and (2) he was at low

risk to re-offend. Appellant’s App. at 14. It also identified two aggravators: (1)

Strobel had a criminal history consisting of three misdemeanors; and (2) the

particular harm that occurred was greater than the elements needed to find

Strobel guilty. Id. Finding that the aggravators outweighed the mitigators, the

trial court sentenced Strobel to two and one-half years imprisonment at the

Indiana Department of Correction (“DOC”) for the Level 6 felony residential

entry conviction and to one year of imprisonment at the Posey County Jail for

the Class A misdemeanor attempted theft. Id. at 15. The trial court ordered the

sentences to be served consecutively, for a total sentence of three and one-half

years, with two years executed, and the remaining one and one-half years

suspended to probation. Strobel now appeals.

Discussion and Decision [7] Strobel asserts that the trial court abused its discretion when it sentenced him.

Sentencing decisions rest within the sound discretion of the trial court, and as

long as a sentence is within the statutory range, it is subject to review only for

an abuse of discretion. Barker v. State, 994 N.E.2d 306, 311 (Ind. Ct. App. 2013)

(citing Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218), trans. denied. An abuse of discretion occurs when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it. Barker, 994 N.E.2d at 311. A trial court may abuse its discretion by

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 4 of 11 failing to enter a sentencing statement, entering findings of aggravating and

mitigating factors unsupported by the record, omitting factors clearly supported

by the record and advanced for consideration, or giving reasons that are

improper as a matter of law. Anglemyer, 868 N.E.2d at 490-91.

[8] Strobel argues that the trial court abused its discretion by ordering him to serve

“a maximum sentence.” Appellant’s Br. at 8. The sentencing range for Strobel’s

Level 6 residential entry conviction was six months to two and one-half years,

with the advisory term being one year. Ind. Code § 35-50-2-7. For the Class A

misdemeanor attempted theft conviction, Strobel faced up to one year in jail. Ind.

Code § 35-50-3-2. While the trial court did impose the maximum two-and-one-

half years for the residential entry and a consecutive one year for the attempted

theft, for an aggregate three and one-half years of incarceration, it ordered that

two years be executed, suspending the remainder to supervised probation.4 As

this court has observed, “[A] maximum sentence is not just a sentence of

maximum length, but a fully executed sentence of maximum length” and that

“[a]nything less harsh, be it placement in community corrections, probation, or

any other available alternative to prison, is simply not a maximum sentence.”

Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009) (emphasis in

original), trans. denied. In this case, one and one-half years of Strobel’s sentence

were suspended, and, thus, contrary to Strobel’s assertion, he did not receive the

4 The trial court explained to Strobel that it was suspending a portion of his sentence to probation because “I want you to be on probation for a while. I am hoping that will help you once you get out[.] . . . I want you to have a chance to be successful[.]” Tr. at 9.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 5 of 11 maximum sentence possible. See Bratcher v. State, 999 N.E.2d 864, 870-71 (Ind.

Ct. App. 2013) (defendant’s twenty-year sentence with five years suspended to

probation for Class B felony, for which the sentencing range was between six and

twenty years, was not “maximum sentence”), trans. denied.

[9] Strobel also argues that “the trial court erred by failing to consider the other

statutory mitigating factors that were presented at the sentencing hearing,”

namely that (1) Strobel in the past had responded affirmatively to probation, (2)

he owns his own business and supports family and incarceration would place

undue hardship on his family and his business, and (3) he would benefit from

treatment at a Veterans Administration facility for PTSD-type symptoms, not

officially yet diagnosed, which stem from his prior military service. Appellant’s

Br. at 9-10. A trial court abuses its discretion in sentencing if it overlooks

“substantial” mitigating factors that are “clearly supported by the record.”

Anglemyer, 868 N.E.2d at 491. The burden is on the defendant to establish that

the mitigating evidence is both significant and clearly supported by the record.

Corbett v. State, 764 N.E.2d 622, 630 (Ind. 2002). A trial court is not required to

find mitigating factors, nor is it obligated to accept as mitigating each of the

circumstances proffered by the defendant. Ashby v. State, 904 N.E.2d 361, 363

(Ind. Ct. App. 2009). Furthermore, if the trial court does not find the existence

of a mitigator after it has been argued by counsel, the court is not obligated to

explain why it found the circumstance not to be mitigating. Barker, 994 N.E.2d

at 311.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 6 of 11 [10] Here, at sentencing, counsel for Strobel presented argument to the trial court

concerning Strobel’s past success with completing probation, the fact that he

ran his own business and supported dependents, and that Strobel may suffer

from PTSD-type of issues related to his prior military service. Tr. at 5-6.

Neither Strobel nor the State presented any evidence at the hearing. The trial

court was not obligated to accept Strobel’s arguments concerning the proffered

mitigators, and Strobel has failed to establish that the proffered mitigating

circumstances were both significant and clearly supported by the record. To the

extent that Strobel’s claim is a challenge to the trial court’s weighing of the

aggravators and mitigators, that claim is not subject to appellate review. See

Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009) (relative weight or

value assignable to reasons properly found, or to those which should have been

found, is not subject to review for abuse of discretion), trans. denied.

[11] Strobel also contends that the trial court improperly applied the aggravator that

the particular harm that Strobel caused to the victims exceeded that necessary

to find him guilty.5 In order to find the impact on the victim’s family to be an

aggravating circumstance, the trial court must explain how the impact on the

family was different than the impact which normally results from the

commission of the offense. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007).

5 In his brief, Strobel characterizes this as “the main” aggravating factor used by the trial court. See Appellant’s Br. at 6, 11, 12. However, the record before us reflects that the harm to the victims was one of two aggravating circumstances that the trial court identified, and nothing suggests that either was “the main” aggravator.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 7 of 11 Also, such harm must have been foreseeable to the defendant. Pickens. v. State,

767 N.E.2d 530, 535 (Ind. 2002). Strobel argues on appeal that “the basic

elements of the offense are very serious and traumatizing,” and that, in this

case, the impact on the victims was not so “destructive” that it was beyond the

range of impacts “normally associated with the commission of the offense.”

Appellant’s Br. at 6, 12. Further, he contends, any such destructive impact was

not foreseeable to him.

[12] The limited record before us indicates that Strobel, along with Neighbors and

the dog, were inside the Morgans’ home while the Morgans were present, the

Morgans heard the intruders and ordered them to leave, but Strobel

nevertheless continued to try to open the door and gain access to interior areas

of the home. The Morgans armed themselves with one or more firearms and

confronted Strobel and Neighbors, who were strangers, and then Ben, while

pointing a firearm at Strobel and Neighbors, walked them to their vehicle. As

counsel and the trial court observed at sentencing, but for the Morgans’ exercise

of restraint, this story could have had a different ending, including with

members of the Morgan family being injured. The trial court remarked that this

case presented facts that “frankly I have not seen . . . in my experience,” and it

explained, “I am not using the elements of the crimes I found you guilty of to

aggravate your sentence. I’m saying that what aggravates the sentence is the

particular harm that occurred, not simply violating the law there.” Tr. at 8.

Strobel has failed to establish that the trial court abused its discretion when it

considered the impact on the Morgan family to be an aggravating circumstance.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 8 of 11 [13] However, even if, as Strobel claims, the trial court improperly relied on this

circumstance to support the sentence imposed, we find no error. When a

sentencing court improperly applies an aggravating circumstance, but other

valid aggravating circumstances do exist, a sentence enhancement may still be

upheld. Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013). A single

aggravating factor is sufficient to warrant an enhanced sentence. Id. Here, the

trial court identified as an aggravator that Strobel has a criminal history, which

was comprised of several Class A misdemeanor convictions: criminal trespass

in 2009; battery resulting in bodily injury in 2011; and invasion of privacy in

2011. Strobel acknowledges his criminal history, Appellant’s Br. at 6, and he

does not challenge its validity as an aggravating circumstance. Strobel’s

criminal history was a proper aggravating circumstance. See Deloney v. State,

938 N.E.2d 724, 732 (Ind. Ct. App. 2010) (trial court was within its discretion

to consider defendant’s “somewhat brief” criminal history as an aggravating

factor), trans. denied. Strobel has failed to show that the trial court abused its

discretion when it imposed its sentence.

[14] Strobel also contends that the trial court abused its discretion by ordering that

the sentences for Counts 2 and 3 be served consecutive to each other. The

imposition of consecutive sentences is a separate and discrete decision from

sentence enhancement, although both may be dependent upon the same

aggravating circumstances. Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006);

see also Moore v. State, 907 N.E.2d 179, 181 (Ind. Ct. App. 2009) (noting the trial

court “may rely on the same reasons to impose an enhanced sentence and also

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 9 of 11 impose consecutive sentences”), trans. denied. Whether to impose consecutive

or concurrent sentences is within the trial court’s sound discretion and is

reviewed only for an abuse of discretion. Henderson v. State, 44 N.E.3d 811, 814

(Ind. Ct. App. 2015) (citing Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct.

App. 2009)). The trial court abuses its discretion if its decision is clearly against

the logic and effect of the facts and circumstances. Gellenbeck, 918 N.E.2d at

712.

[15] Indiana Code section 35-50-1-2 provides:

[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:

(1) aggravating circumstances in IC 35-38-1-7.1(a); and

(2) mitigating circumstances in IC 35-38-1-7.1(b) in making a determination under this subsection[.]

Ind. Code § 35-50-l-2(c). The trial court must find at least one aggravating

circumstance before imposing consecutive sentences. Henderson, 44 N.E.3d at

814. Here, the trial court found two aggravators. Accordingly, the trial court

did not abuse its discretion when it ordered Strobel to serve the residential entry

sentence consecutive to the attempted theft sentence.

[16] Strobel has not shown that the trial court abused its discretion when it

sentenced him to three and one-half years, of which one and one-half years was

suspended to supervised probation.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 10 of 11 [17] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 65A04-1603-CR-582 | December 21, 2016 Page 11 of 11