David W. Burget v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 8, 2020
• Docket: 20A-CR-999
• 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 08 2020, 8:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Anthony S. Churchward, P.C. Josiah Swinney Fort Wayne, Indiana Deputy Attorney General Bernard Lobermann Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David W. Burget, December 8, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-999 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-2001-F3-2

Weissmann, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-999 | December 8, 2020 Page 1 of 5 [1] David Burget appeals the thirty-six-year sentence imposed by the trial court

after he was found guilty, as an habitual offender, of Level 3 felony criminal

confinement, Level 5 felony intimidation, and Level 6 felony strangulation.

Burget argues the sentence is inappropriate in light of the nature of the offenses

and his character. Given the terrorizing nature of Burget’s crimes, the

underlying betrayal in his conduct, and his criminal history, we find the

sentence not inappropriate and affirm.

Facts [2] Burget was kicked out of his brother’s home and found sanctuary with Patricia

Justice, a childhood friend with whom he had recently reacquainted. Tr. Vol. II

pp. 32-34. Justice agreed that Burget could temporarily stay with her, but she

soon caught Burget smoking “crack” cocaine in her living room and ordered

him to leave. Id. at 34-36. Burget responded violently, grabbing Justice by the

throat, slamming her against a wall, and strangling her on the floor. Id. at 36-37,

40. He then held a knife to Justice’s neck and taunted, “I’m just gonna slit your

throat[,] bitch.” Id. at 40. Justice begged for her life until Burget finally released

his grip. Id. But Justice’s ordeal was not yet over.

[3] For the next two hours, Burget held Justice captive in and around her home

while he continued to smoke crack cocaine. Id. at 42. During this time, Burget

told Justice he would “gut” her if she fought back and kill her if she tried to flee.

Id. at 42-43. Burget also warned Justice not to call 911, threatening to kill

Court of Appeals of Indiana | Memorandum Decision 20A-CR-999 | December 8, 2020 Page 2 of 5 anyone who came to her aid. Id. at 42. Eventually, Justice managed to escape

when Burget took her to a nearby motel to acquire more drugs. Id. at 47-49.

[4] The State charged Burget with one count each of Level 3 felony criminal

confinement, Level 5 felony intimidation, and Level 6 felony strangulation.

Appellant’s App. Vol. II pp. 13-18. A jury convicted Burget on all counts and

determined he was an habitual offender. Id. at 43, 150.

[5] The trial court sentenced Burget to sixteen years for criminal confinement,

enhanced by twenty years for Burget’s habitual offender status. Id. The trial

court also sentenced Burget to concurrent terms of five years for intimidation

and two years for strangulation, yielding a net sentence of thirty-six years. Id.

Burget now appeals.

Discussion and Decision [6] Burget seeks relief under Indiana Appellate Rule 7(B), arguing the sentence

imposed by the trial court is inappropriate in light of the nature of the offenses

and his character. In reviewing the appropriateness of a sentence, our “principal

role . . . is to attempt to leaven the outliers . . . not to achieve a perceived

‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (internal

citations and quotations omitted). Accordingly, we give “substantial deference”

and “due consideration” to the trial court’s sentencing decision. Id.

[7] With respect to the nature of the offenses, Burget terrorized Justice for hours

after she graciously sheltered him in her home. Burget slammed Justice against

Court of Appeals of Indiana | Memorandum Decision 20A-CR-999 | December 8, 2020 Page 3 of 5 a wall, strangled her, held a knife to her throat, and threatened to gut her if she

tried to escape. Although Justice emerged from the ordeal without any major

physical injuries, she suffers deeply embedded emotional trauma. Tr. Vol. II pp.

50, 182. Perhaps most notably, Justice can no longer associate with some of her

longstanding friends out of fear that they, too, might attack her. Id. at 182.

[8] Burget acknowledges the severity of his offenses but claims they do not justify

the maximum sentence permitted by law. Yet, the thirty-six-year

sentence imposed by the trial court was four years less than the maximum

sentence Burget faced for his Level 3 felony conviction with an habitual

offender enhancement. See Ind. Code §§ 35-50-1-2-(d)(4), -2-8-(i)(1). We are

unmoved as a result.

[9] As to Burget’s character, his presentence investigation report reveals thirteen

prior felony and fourteen prior misdemeanor convictions. Appellant’s App. Vol.

II pp. 138-43. These include convictions on three counts of Class C felony

burglary, two counts of Class D felony possession of cocaine, two counts of

Class A misdemeanor possession of paraphernalia, and four counts of operating

while intoxicated—one as a Class D felony and three as Class A misdemeanors.

Id. Burget has had suspended sentences revoked on three occasions, probation

revoked twice, and parole revoked once. Id. He also has been deemed a

“[h]igh” risk to re-offend. Id. at 145.

[10] The crux of Burget’s character argument is that, notwithstanding his three

burglary convictions, his criminal history consists mostly of non-violent drug

Court of Appeals of Indiana | Memorandum Decision 20A-CR-999 | December 8, 2020 Page 4 of 5 crimes that are unlike the violent crimes for which he has been sentenced.

Burget glosses over his history of substance abuse and ignores the role illegal

drug use played in his confinement, intimidation, and strangulation of Justice.

[11] Despite Burget’s drug-related convictions and his participation in seven separate

substance abuse treatment programs, Burget has regularly used cocaine since

age thirty-two and was using it twice per week in advance of his crimes. Id.

When Burget was given shelter in a time of need, he violated Justice’s trust by

smoking crack cocaine in her home. Then, after strangling and intimidating

Justice, Burget confined her while he continued to use illegal drugs. And it was

only when Burget sought out more drugs that Justice was able to escape.

[12] Considering Burget’s criminal history and his torment of a welcoming friend,

we find the aggregate thirty-six-year sentence imposed by the trial court is not

inappropriate in light of the nature of the offenses and Burget’s character.

[13] The judgment of the trial court is affirmed.

Mathias, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-999 | December 8, 2020 Page 5 of 5