Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 31 2014, 9:26 am any 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:
JESSE R. POAG GREGORY F. ZOELLER Newburgh, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEZMONT HOGAN, ) ) Appellant-Defendant, ) ) vs. ) No. 82A01-1310-CR-475 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable David D. Kiely, Judge Cause No. 82C01-1202-FA-248
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
Dezmont Hogan appeals his sentence following his convictions for burglary, as a
Class A felony; criminal confinement, as a Class B felony; and theft, as a Class D felony.
Hogan presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
During the early morning hours of February 19, 2012, Hogan, Nalakeio Bennett,
Antwan Jenkins, Jeton Hall, and a fifth man were wearing black ski masks and carrying
handguns when they ambushed Ira Beumer outside of his residence in Vanderburgh
County. The men pointed their guns at Beumer and threatened to shoot him if he did not
disarm the house alarm, and Beumer complied. The men forced their way inside the
house, and they struck Beumer in the head with the butts of their pistols multiple times.
The men emptied two safes of valuables, and they stole coins and an iPad. At one point,
Beumer was on his knees, and one of the men held a gun to his head and said, “I am
going to kill this n*****, I am going to kill this n*****!” Appellant’s App. at 14. Then
Beumer’s wife pulled into the driveway. One of the men alerted the others to her arrival,
and Beumer pleaded with the men not to hurt her. The man with the gun to Beumer’s
head said, “I am going to kill this n***** then I am going to kill this f***ing bitch!” Id.
But the man did not go through with his threats, and all five men fled the scene.
2 The State charged Hogan with burglary, as a Class A felony; criminal
confinement, as a Class B felony; theft, as a Class D felony; and with being a member of
a criminal gang. Hogan pleaded guilty as charged to burglary, criminal confinement, and
theft, without a plea agreement, but the criminal gang enhancement was tried to a jury.
During that trial, the trial court granted Hogan’s motion for a directed verdict. The trial
court sentenced Hogan to forty years for the Class A felony, fifteen years for the Class B
felony, and two years for the Class D felony. And the trial court ordered that the
sentences would run concurrently for a total executed sentence of forty years. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion in Sentencing
Hogan first contends that the trial court abused its discretion when it sentenced
him. 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), clarified on other grounds on 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 . . . .
3 [However, b]ecause the trial court no longer has any obligation to “weigh” aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court cannot now be said to have abused its discretion in failing to “properly weigh” such factors.
Id. at 490-91.
Hogan contends that the trial court abused its discretion when it did not identify
his remorse as a mitigating circumstance. The trial court abuses its discretion in
sentencing if it overlooks “substantial” mitigating factors that are “clearly supported by
the record.” Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (quoting
Anglemyer, 868 N.E.2d at 491), trans. denied. We recognize that substantial deference
must be given to a trial court’s evaluation of remorse. Allen v. State, 875 N.E.2d 783,
788 (Ind. Ct. App. 2007). “Remorse, or lack thereof, by a defendant is something better
guarded by a trial judge who views and hears a defendant’s apology and demeanor first
hand and determines the defendant’s credibility.” Phelps v. State, 914 N.E.2d 283, 293
(Ind. Ct. App. 2009). Here, at sentencing, Hogan’s counsel read aloud from a letter
Hogan had written expressing his remorse “for the choices that were made that day.”
Sentencing Transcript at 6. Hogan was present at the sentencing hearing. He does not
explain why he did not express his remorse directly to the court. We cannot say that the
trial court abused its discretion when it did not identify Hogan’s remorse as a mitigator.
Issue Two: Inappropriate Sentence
Hogan also contends that his sentence is inappropriate in light of the nature of the
offenses and his character. Again, the trial court imposed concurrent sentences with an
aggregate executed sentence of forty years. The sentencing range for a Class A felony is
twenty years to fifty years with the advisory sentence being thirty years. Ind. Code § 35- 4 50-2-4. The sentencing range for a Class B felony is six years to twenty years with the
advisory sentence being ten years. Ind. Code § 35-50-2-5. And the sentencing range for
a Class D felony is six months to three years, with the advisory sentence being one and
one-half years. Ind. Code § 35-50-2-7.
Although a trial court may have acted within its lawful discretion in determining a
sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]
independent appellate review and revision of a sentence imposed by the trial court.”
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 31 2014, 9:26 am any 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:
JESSE R. POAG GREGORY F. ZOELLER Newburgh, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEZMONT HOGAN, ) ) Appellant-Defendant, ) ) vs. ) No. 82A01-1310-CR-475 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT The Honorable David D. Kiely, Judge Cause No. 82C01-1202-FA-248
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
Dezmont Hogan appeals his sentence following his convictions for burglary, as a
Class A felony; criminal confinement, as a Class B felony; and theft, as a Class D felony.
Hogan presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
During the early morning hours of February 19, 2012, Hogan, Nalakeio Bennett,
Antwan Jenkins, Jeton Hall, and a fifth man were wearing black ski masks and carrying
handguns when they ambushed Ira Beumer outside of his residence in Vanderburgh
County. The men pointed their guns at Beumer and threatened to shoot him if he did not
disarm the house alarm, and Beumer complied. The men forced their way inside the
house, and they struck Beumer in the head with the butts of their pistols multiple times.
The men emptied two safes of valuables, and they stole coins and an iPad. At one point,
Beumer was on his knees, and one of the men held a gun to his head and said, “I am
going to kill this n*****, I am going to kill this n*****!” Appellant’s App. at 14. Then
Beumer’s wife pulled into the driveway. One of the men alerted the others to her arrival,
and Beumer pleaded with the men not to hurt her. The man with the gun to Beumer’s
head said, “I am going to kill this n***** then I am going to kill this f***ing bitch!” Id.
But the man did not go through with his threats, and all five men fled the scene.
2 The State charged Hogan with burglary, as a Class A felony; criminal
confinement, as a Class B felony; theft, as a Class D felony; and with being a member of
a criminal gang. Hogan pleaded guilty as charged to burglary, criminal confinement, and
theft, without a plea agreement, but the criminal gang enhancement was tried to a jury.
During that trial, the trial court granted Hogan’s motion for a directed verdict. The trial
court sentenced Hogan to forty years for the Class A felony, fifteen years for the Class B
felony, and two years for the Class D felony. And the trial court ordered that the
sentences would run concurrently for a total executed sentence of forty years. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Abuse of Discretion in Sentencing
Hogan first contends that the trial court abused its discretion when it sentenced
him. 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), clarified on other grounds on 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 . . . .
3 [However, b]ecause the trial court no longer has any obligation to “weigh” aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court cannot now be said to have abused its discretion in failing to “properly weigh” such factors.
Id. at 490-91.
Hogan contends that the trial court abused its discretion when it did not identify
his remorse as a mitigating circumstance. The trial court abuses its discretion in
sentencing if it overlooks “substantial” mitigating factors that are “clearly supported by
the record.” Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (quoting
Anglemyer, 868 N.E.2d at 491), trans. denied. We recognize that substantial deference
must be given to a trial court’s evaluation of remorse. Allen v. State, 875 N.E.2d 783,
788 (Ind. Ct. App. 2007). “Remorse, or lack thereof, by a defendant is something better
guarded by a trial judge who views and hears a defendant’s apology and demeanor first
hand and determines the defendant’s credibility.” Phelps v. State, 914 N.E.2d 283, 293
(Ind. Ct. App. 2009). Here, at sentencing, Hogan’s counsel read aloud from a letter
Hogan had written expressing his remorse “for the choices that were made that day.”
Sentencing Transcript at 6. Hogan was present at the sentencing hearing. He does not
explain why he did not express his remorse directly to the court. We cannot say that the
trial court abused its discretion when it did not identify Hogan’s remorse as a mitigator.
Issue Two: Inappropriate Sentence
Hogan also contends that his sentence is inappropriate in light of the nature of the
offenses and his character. Again, the trial court imposed concurrent sentences with an
aggregate executed sentence of forty years. The sentencing range for a Class A felony is
twenty years to fifty years with the advisory sentence being thirty years. Ind. Code § 35- 4 50-2-4. The sentencing range for a Class B felony is six years to twenty years with the
advisory sentence being ten years. Ind. Code § 35-50-2-5. And the sentencing range for
a Class D felony is six months to three years, with the advisory sentence being one and
one-half years. Ind. Code § 35-50-2-7.
Although a trial court may have acted within its lawful discretion in determining a
sentence, Article VII, Sections 4 and 6 of the Indiana Constitution “authorize[]
independent appellate review and revision of a sentence imposed by the trial court.”
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration original). This
appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of
a sentence under Appellate Rule 7(B) requires the appellant to demonstrate that his
sentence is inappropriate in light of the nature of his offenses and his character. See App.
R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the
trial court’s recognition or non-recognition of aggravators and mitigators as an initial
guide to determining whether the sentence imposed was inappropriate. Gibson v. State,
856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard of
review.” Roush, 875 N.E.2d at 812 (alteration original).
And our supreme court has stated that “sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing
scheme allows trial courts to tailor an appropriate sentence to the circumstances
presented. See id. at 1224. The principal role of appellate review is to attempt to “leaven
5 the outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end of
the day turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given case.” Id.
at 1224.
Hogan contends that his sentence is inappropriate in light of the nature of the
offenses and his character. Hogan appears to suggest that the nature of the offenses is
such that only the advisory sentence for a Class A felony should be imposed, but his
argument in support of that contention is difficult to follow and unpersuasive. As for his
character, Hogan points out that he “took full responsibility for his actions in his letter to
the court and explained some of the difficulties of his upbringing.” Appellant’s Brief at
9. Hogan also asserts that his young age, family support, and guilty plea reflect on his
good character.
But the State points out that the nature of the offenses was particularly heinous.
At sentencing, the trial court read aloud from a letter written by Beumer describing, in
detail, the “vicious and violent” crimes committed against him, including the men’s
threats to kill him and his wife. Sentencing Transcript at 11-12. As for Hogan’s
character, he was only twenty-five years old at the time of sentencing, yet his criminal
history includes a felony conviction for robbery, misdemeanor convictions for auto theft
and resisting law enforcement, and a probation violation. We cannot say that Hogan’s
forty-year sentence is inappropriate in light of the nature of the offenses or his character.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.