Corey Heidorn v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 4, 2020
• Docket: 19A-CR-2902
• 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 Jun 04 2020, 11:43 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Leanna K. Weissmann James T. Whitehead Lawrenceburg, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey Heidorn, June 4, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2902 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge Trial Court Cause No. 69C01-1703-F4-7

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Corey Heidorn (Heidorn), appeals following his guilty

plea to two Counts of burglary of a dwelling, Level 4 felonies, Ind. Code § 35-

43-2-1(1).

[2] We affirm.

ISSUES [3] Heidorn presents the court with one issue, which we restate as the following

two issues:

(1) Whether the trial court abused its discretion when it identified the mitigating circumstances at sentencing; and

(2) Whether his sentence is inappropriate given the nature of his offenses and his character.

FACTS AND PROCEDURAL HISTORY [4] Heidorn began using heroin in 2006 and was addicted by 2010, when he was

abusing heroin daily. During the early months of 2016, a string of burglaries

and thefts were reported in Ripley County. On February 16, 2016, Heidorn and

an accomplice broke into the home and outbuilding of Daniel and Abby

Leonnetti and took a shotgun, a handgun, a spotting scope, and several

chainsaws. Abby discovered Heidorn and his accomplice outside of her home

as she was about to turn into her driveway. They fled. On the same day,

Heidorn broke into the home and outbuilding of Kenneth Bowling III and took

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 2 of 11 a firearm and a chainsaw. During the ensuing investigation, law enforcement

learned that multiple burglaries had been reported in neighboring Dearborn

County. Heidorn became a suspect in the burglaries when his drivers license

was found at one of the Dearborn County homes that had been burglarized.

His distinctive Nike Shox shoe print was also found at several of the burglarized

homes in both counties. After further investigation, search warrants were

executed at homes associated with Heidorn and his accomplice which

uncovered items taken in the Dearborn and Ripley County burglaries.

[5] On March 23, 2017, the State filed an Information, charging Heidorn with four

Counts of Level 4 felony burglary of a dwelling; two Counts of Level 6 felony

receiving stolen property, and Class A misdemeanor receiving stolen property

for offenses committed in Ripley County. Prior to the resolution of the Ripley

County case, Heidorn pleaded guilty and was sentenced for two Counts of

Level 4 felony burglary in Dearborn County. On June 4, 2019, Heidorn

pleaded guilty in the Ripley County case to two Counts of Level 4 felony

burglary of a dwelling pursuant to a plea agreement with the State which

capped his individual sentences at nine years. The decision of whether those

sentences would be served consecutively or concurrently to one another and to

Heidorn’s sentence for the Dearborn County offenses was left to the discretion

of the trial court. The State also agreed to dismiss all remaining charges against

Heidorn.

[6] On May 29, 2019, Heidorn’s pre-sentence investigation report was filed with

the trial court. Heidorn had seven prior misdemeanor convictions for offenses

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 3 of 11 including criminal mischief and disorderly conduct and, in addition to his

Dearborn County offenses, a prior felony conviction for theft in 2014. Heidorn

had violated his probation on one occasion, had two pending probation

violations at the time of the instant offenses, and was on pre-trial release on a

drug paraphernalia case in Ohio when he committed the instant offenses.

Heidorn’s drug abuse began at the age of fifteen when he stole his

grandmother’s pain medication while she was a cancer patient. Heidorn had

attended treatment on two occasions prior to his incarceration. Since his

incarceration, Heidorn had been discharged from a sobriety program twice due

to poor behavior.

[7] On November 14, 2019, the trial court conducted Heidorn’s sentencing hearing.

Prior to the commencement of the hearing, Heidorn and the State agreed that

Heidorn would pay $1,255 in restitution to two other burglary victims, Allen

Hill and Jon Strotman. The State had Heidorn’s disciplinary record during his

incarceration admitted into evidence which showed that he had accumulated

thirty-five major rules violations for, among other things, fighting, possession of

a makeshift weapon, and testing positive for methamphetamine. During his

allocution, Heidorn apologized to the victims of the two burglaries to which he

had pleaded guilty.

[8] The trial court found as aggravating circumstances that Heidorn had a criminal

record, he had violated the terms of his probation in the past, and he had two

pending probation violations. The trial court found these aggravating

circumstances to be “significant” and “heavy.” (Transcript p. 57). The trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 4 of 11 court found as an additional aggravating circumstance that Heidorn’s offenses

involved the theft of firearms which put lethal weapons into circulation in the

community.

[9] Concerning Heidorn’s proposed mitigating circumstances, the trial court judge

observed that he “did look at the mitigating factors, [but] I really don’t find

much.” (Tr. p. 58). The trial court found that Heidorn had received a

substantial benefit from his plea agreement which reduced the significance for

sentencing of his guilty plea and his acceptance of responsibility. The trial court

noted that it only considered restitution to be mitigating if it had already been

paid and that Heidorn’s offer to pay restitution was not a mitigating

circumstance because it was not a certainty that it would be paid. As to

Heidorn’s behavior while incarcerated, the trial court found that Heidorn had

been discharged from sobriety programs twice and that Heidorn’s recent good

behavior in prison was more the result of a desire to receive a lenient sentence

than a true effort at reform. Although the trial court stated that “[e]verything

that I’ve seen here today seems to be motivated out of um, selfish reasons,

certainly can be seen in that light, and I’m not even looking very hard to find it .

. . It kind of stands out to me[,]” it concluded that it would afford Heidorn some

leniency. (Tr. pp. 59-60). The trial court sentenced Heidorn to eight years,

with two years suspended, for each burglary conviction and ordered him to

serve those sentences consecutively to each other and to the Dearborn County

sentences.

[10] Heidorn now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 5 of 11 DISCUSSION AND DECISION I. Mitigating Circumstances

[11] Heidorn argues that the trial court abused its discretion when it failed to credit

his proposed mitigating circumstances and imposed enhanced, consecutive

sentences. Under our current sentencing scheme, so long as a sentence imposed

by a trial court is within the statutory range for the offense, it is subject to

review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial

court’s sentencing discretion occurs if its 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 that a

trial court may abuse its discretion is when its sentencing statement omits

reasons that are clearly supported by the record and advanced for consideration.

Id. at 490-91. However, because trial courts are no longer required to weigh

aggravating and mitigating circumstances, the weight accorded to those

circumstances is no longer subject to our review. Id. at 491.

[12] Heidorn does not argue that his sentence was outside the statutory range for his

offenses or that it was in violation of his plea agreement. Rather, Heidorn’s

argument centers on his proffered mitigators—his guilty plea, his expressions of

remorse, and his offer to pay restitution. Heidorn contends that his guilty plea

should have been afforded some mitigating weight by the trial court. However,

it has long been recognized that a trial court does not abuse its discretion in

failing to recognize a guilty plea as mitigating when the defendant has already

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 6 of 11 received a substantial benefit as a result. See Sensback v. State, 720 N.E.2d 1160,

1164-65 (Ind. 1999) (holding that the trial court did not abuse its discretion by

failing to identify Sensback’s plea as mitigating where the State had dropped

robbery and auto theft charges and agreed not to pursue a sentence of life

without parole). Here, the State agreed to drop four other felony charges and a

Class A misdemeanor pending against Heidorn in exchange for his plea, which

was a substantial benefit to him. Cotto v. State, 829 N.E.2d 520, 525-26 (Ind.

2005), the case relied upon by Heidorn, is readily distinguishable, as Cotto did

not receive any benefit from the State in exchange for his guilty plea to Class A

felony methamphetamine possession where the State dismissed charges against

him for its own benefit to simplify the case.

[13] As to Heidorn’s expressions of remorse, we note that we accord substantial

deference to a trial court’s evaluation of such statements. Sharkey v. State, 967

N.E.2d 1074, 1079 (Ind. Ct. App. 2012). This is because the trial court actually

“views and hears a defendant’s apology and demeanor first hand and

determines the defendant’s credibility.” Id. The trial court heard Heidorn’s

apology and expressions of remorse to his victims and found them to be

insincere. We will not second-guess the trial court’s determination. See id.

(concluding that the trial court did not abuse its discretion by failing to identify

Sharkey’s expressions of remorse as mitigating, even where it did not explain

on the record its reasons).

[14] Heidorn also contends that the trial court abused its discretion when it did not

recognize his willingness to pay restitution as a mitigating circumstance. In

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 7 of 11 order to show an abuse of the trial court’s discretion for failing to find a

mitigating circumstance, a defendant must show that the mitigator was both

significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

Although Heidorn agreed to pay restitution to two of his other victims prior to

the start of his sentencing hearing, he had not actually paid restitution to any of

his victims. Given the trial court’s observations about Heidorn’s self-interested

motivations for making amends and the uncertainty that restitution would be

made, we conclude that the trial court acted within its discretion when it found

that Heidorn’s offer to pay restitution was either insignificant for sentencing,

was not clearly supported by the record, or both.

[15] In a related argument, Heidorn contends that, because the trial court failed to

properly identify the mitigating circumstances, it abused its discretion in

imposing consecutive sentences. Since we have concluded that the trial court

did not abuse its discretion when it declined Heidorn’s proffered mitigators, this

argument fails. We also decline to credit Heidorn’s contention that consecutive

sentences were an abuse of discretion here because “there is a colorable

argument that the two burglaries . . . constitute a single ‘episode of criminal

conduct’ as defined by statute. Indiana Code § 35-50-1-2(b).” (Appellant’s Br. p.

15). Burglary of a dwelling is specifically excluded from the limitation on

consecutive sentences provided for by Indiana Code section 35-50-1-2(c). See

I.C. §§ 35-50-1-2(a)(14), -(c) (excluding crimes of violence such as Level 4

felony burglary). Accordingly, we find that the trial court also acted within its

discretion when it imposed consecutive sentences.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 8 of 11 II. Inappropriateness of Sentence

[16] Heidorn requests that we review the appropriateness of his sentence. “Even

when a trial court imposes a sentence within its discretion, the Indiana

Constitution authorizes independent appellate review and revision of this

sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019). Thus,

we may revise a sentence if, after due consideration of the trial court’s decision,

we find that the sentence is inappropriate in light of the nature of the offenses

and the character of the offender. Id. The principal role of such review is to

attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). The defendant bears the burden to persuade the reviewing court that the

sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind.

2018).

A. Nature of the Offenses

[17] When assessing the nature of an offense, the advisory sentence is the starting

point that the legislature selected as an appropriate sentence for the particular

crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Heidorn

pleaded guilty to two Level 4 felonies, which carry a sentencing range of

between two and twelve years, with an advisory sentence of six years. I.C. §

35-50-2-5.5. In addition, Heidorn’s potential sentencing exposure was limited

by the terms of his plea agreement to nine years on the individual sentences.

Therefore, Heidorn faced a potential maximum sentence of eighteen years. The

trial court sentenced Scruggs to eight years for each burglary, with two years

suspended, to be served consecutively to each other and to the Dearborn

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 9 of 11 County sentences. Thus, the trial court did not impose the maximum sentence

allowed by Heidorn’s plea agreement, and one-quarter of the individual

sentences was suspended.

[18] When reviewing the nature of the offense, we look to the “the details and

circumstances of the commission of the offense and the defendant’s

participation.” Perry, 78 N.E.3d at 13. Heidorn went on a burglary spree to

fund his heroin addiction. The two burglaries to which Heidorn pleaded guilty

involved two different victims, a fact that renders consecutive sentences

appropriate. See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (holding that

“consecutive sentences seem necessary to vindicate the fact that there were

separate harms and separate acts against more than one person.”). Heidorn

stole firearms from both homes, which placed weapons into the community

and, therefore, increased the harm caused by the offenses.

[19] Heidorn argues that his aggregate sentence is inappropriate because he burgled

homes when the homeowners were away and his offenses did not involve

physical injury. However, as the experience of Abby Leonnetti, who arrived

home to find Heidorn and his accomplice in her driveway, illustrates, the fact

that no one was injured was a matter of good fortune for all, as no burglar is

guaranteed that a homeowner may not return unexpectedly. We find nothing

inappropriate about the slightly enhanced, consecutive sentences imposed here

given the nature of the offenses.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 10 of 11 B. Character of the Offender

[20] Neither do we find that Heidorn’s character renders his sentence inappropriate.

Heidorn has incurred a substantial criminal record consisting of three felony

and seven misdemeanor convictions. Heidorn had previously received

suspended sentences but violated his probation. Heidorn was also on pre-trial

release in another criminal case when he committed the instant offenses.

Heidorn incurred thirty-five major rule violations prior to sentencing in the

instant matter for conduct including fighting, possessing a weapon, and using

drugs. As such, Heidorn has demonstrated a long-term failure to abide by the

law, even when he is in the custody of the State. Heidorn also failed to

successfully address his drug addiction while free in society and has only

remained sober for a substantial period of time while he has been incarcerated.

While we encourage Heidorn’s more recent efforts to remain sober and refrain

from rules violations in prison, we do not find them to be so overwhelming so

as to merit a reduction in his sentence.

CONCLUSION [21] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it failed to credit Heidorn’s proffered mitigators and that

Heidorn’s sentence is not inappropriate given the nature of his offenses and his

character.

[22] Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2902 | June 4, 2020 Page 11 of 11