Dominick Fazzini v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2015
• Docket: 64A04-1406-CR-296
• Status: Published

Opinion

MEMORANDUM DECISION Feb 17 2015, 10:02 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joanne Baitup Gregory F. Zoeller Law Office of Joanne Baitup Attorney General of Indiana Valparaiso, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dominick Fazzini, February 17, 2015

Appellant-Defendant, Court of Appeals Cause No. 64A04-1406-CR-296 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Roger V. Bradford, Judge Appellee-Plaintiff. 64D01-1208-FA-8167

Kirsch, Judge.

[1] Dominck Fazzini (“Fazzini”) appeals his conviction of burglary as a Class A

felony1. He presents one issue on appeal: whether his sentence was

1 See Ind. Code § 35-43-2-1

Court of Appeals of Indiana | Memorandum Decision 64A04-1406-CR-296 | February 17, 2015] Page 1 of 5 inappropriate in light of the nature of the offense and the character of the

offender.

[2] We affirm.

Facts and Procedural History [3] Fazzini received information that Cheri Baruch (“Baruch”) had money and

several guns locked in a safe in her basement. Fazzini recruited Michael

Sprague (“Sprague”), Jordan Wilkerson (“Wilkerson”), and Shawn Duffy

(“Duffy”) to join him in burglarizing and robbing Baruch. Because the money

and guns were located in Baruch’s safe, Fazzini told his accomplices that they

would need to commit their crime while Baruch was home so that she could

open the safe for them.

[4] On August 8, 2012, Fazzini and the other men drove to Baruch’s house.

Wilkerson attempted to gain entry by asking Baruch if he could come in. When

she refused, Wilkerson asked her for some water. When she opened the door to

give Wilkerson the water, Wilkerson forced himself inside. Fazzini and Duffy

entered behind Wilkerson. Both were armed with handguns. Duffy pointed his

gun at Baruch, and Wilkerson knocked her to the floor and held her down.

Baruch sustained injuries to her head, back, and knee.

[5] One of the men grabbed Baruch’s keys from her, and then the group forced her

down to the basement safe. The group threatened to shoot her if she did not

open the safe. Baruch complied, and Fazzini and his accomplices took the guns

Court of Appeals of Indiana | Memorandum Decision 64A04-1406-CR-296 | February 17, 2015] Page 2 of 5 and money. They then made Baruch put on a new shirt and attempted to

destroy their fingerprints with bleach.

[6] While Fazzini and his accomplices were still at Baruch’s residence, her

neighbor, James Filby (“Filby”), arrived causing the men to flee. After hearing

about what happened, Filby called 911 and gave chase. The pursuit concluded

when the vehicle in which Fazzini and his accomplices were traveling crashed.

Fazzini, Sprague, and Wilkerson all fled, but were apprehended shortly

afterward. During the encounter, Duffy exchanged gunfire with the police—

shooting Filby in the hand in the process—before turning his gun on himself

and taking his own life.

[7] The State charged Fazzini with burglary as a Class A felony, robbery as a Class

B felony, and criminal confinement as a Class B felony. Fazzini agreed to plead

guilty to burglary as a Class A felony in exchange for the dismissal of the two

lesser charges as well as an executed sentence cap of 40 years. All remaining

charges were dismissed. Fazzini was sentenced to 35 years executed and 5

years suspended. Fazzini now appeals.

Discussion and Decision [8] Appellate courts may revise a sentence after careful review of the trial court's

decision if they conclude that the sentence is inappropriate based on the nature

of the offense and the character of the offender. Ind. Appellate Rule 7(B). Even

if the trial court followed the appropriate procedure in arriving at its sentence,

the appellate court still maintains a constitutional power to revise a sentence it

Court of Appeals of Indiana | Memorandum Decision 64A04-1406-CR-296 | February 17, 2015] Page 3 of 5 finds inappropriate. Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005).

While the trial court is not afforded excessive deference, “we must and should

exercise deference to a trial court’s sentencing decision” in part because of the

trial court’s unique perspective on sentencing decisions. Rutherford v. State, 866

N.E.2d 867, 873 (Ind. Ct. App. 2007)

[9] Fazzini contends that trial court abused its discretion because his sentence was

inappropriate in light of the character of the offender. Fazzini is conflating two

entirely separate analyses: “[I]nappropriate sentence and abuse of discretion

claims are analyzed separately. . . . [A]n inappropriate sentence analysis does

not involve an argument that the trial court abused its discretion in sentencing

the defendant.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Our

Supreme Court has stated that an abuse of discretion at sentencing occurs when

the trial court “fails to enter a sentencing statement . . . enters a sentencing

statement that explains reasons for imposing a sentence 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).

[10] Fazzini does not explicitly contend the trial court committed any of the

aforementioned errors. Rather, Fazzini claims that the trial court abused its

discretion in failing to find that the mitigating factors of the case outweighed the

aggravating factors. However, our Supreme Court has held that “[b]ecause the

trial court no longer has any obligation to ‘weigh’ aggravating and mitigating

Court of Appeals of Indiana | Memorandum Decision 64A04-1406-CR-296 | February 17, 2015] Page 4 of 5 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 491. Fazzini’s argument is incorrect as a matter of law.

[11] Regarding the claim that a sentence is inappropriate in light of the nature of the

offense and the character of the offender, the defendant has the burden of

persuading the appellate court that his sentence is inappropriate. King, 894

N.E.2d at 267. Here, the trial court determined that the damage done to the

victim, the danger the crime posed to the community, and Fazzini’s role as the

mastermind behind the crime justified a sentence higher than the advisory

sentence. We see no reason to disagree. Fazzini was the mastermind behind a

brutal attack on an innocent woman. This is not his first offense. Finally, the

nature of the offense is particularly heinous: a pre-planned attack on a

defenseless woman in her own home that ultimately left one dead and two

injured. Fazzini’s sentence is not inappropriate in light of the nature of the

offense and the character of the offender.

[12] Affirmed.

Friedlander, J., and Crone, J., concur.

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