Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2012, 8:51 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SEAN P. HILGENDORF GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DONALD E. WROBEL, ) ) Appellant-Defendant, ) ) vs. ) No. 71A05-1204-CR-180 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable William T. Means, Judge Cause No. 71D04-0006-CF-252
August 28, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Donald E. Wrobel appeals the sentence imposed after he
pleaded guilty to two counts of Sexual Misconduct with a Minor,1 each as a class B
felony, and to being a Habitual Offender.2 Specifically, Wrobel argues that his thirty-
year aggregate sentence is inappropriate in light of the nature of his offenses and his
character. Concluding that Wrobel’s sentence was not inappropriate, we affirm the
judgment of the trial court.
FACTS
In May 2000, Wrobel was working as a maintenance man for the YMCA in St.
Joseph County when he first met S.P., a fourteen-year-old boy with autism. During the
next two months, Wrobel had several encounters with S.P. at the YMCA during which he
reports that he observed S.P. naked while S.P. weighed himself, observed S.P. watch a
father and son change clothes, and witnessed S.P. masturbate near the YMCA’s Jacuzzi.
On more than one occasion, Wrobel permitted S.P. to stay after hours at the YMCA and
to gain access to areas in the YMCA where S.P. otherwise would not have been allowed.
On June 12, 2000, after the YMCA had closed, Wrobel engaged in illicit sexual
acts with S.P. Specifically, on that date, Wrobel and S.P. engaged in mutual fellatio.
On June 14, 2000, the State charged Wrobel with three counts of criminal deviate
conduct as a class B felony and three counts of sexual misconduct with a minor as a class
B felony. On August 4, 2000, the State filed a subsequent count to Wrobel’s pending
1 Ind. Code § 35-42-4-9(a)(1). 2 Ind. Code § 35-50-2-8. 2 charges alleging Wrobel to be a habitual offender. On December 11, 2000, the three
counts of criminal deviate conduct were dismissed upon the State’s motion.
On June 20, 2001, Wrobel pleaded guilty to two counts of sexual misconduct with
a minor and to being a habitual offender. In exchange, the State dismissed the third count
of sexual misconduct with a minor and agreed to a twenty-year maximum sentence for
each of the two counts of sexual misconduct with a minor, to run concurrently, and for a
maximum sentence enhancement of ten years for being a habitual offender. Thus,
pursuant to the plea agreement, the maximum executed sentence that Wrobel could
receive was thirty years.
During the sentencing hearing held on August 30, 2001, Wrobel argued that he
should not receive the maximum sentence permitted under the plea agreement because
his prior felony convictions for four counts of conspiracy to use interstate commerce
facility in the commission of a murder for hire and for carrying a concealed weapon were
used to support the habitual offender charge. Therefore, Wrobel asserted, they could not
be considered as aggravating factors to support imposing the maximum sentence for the
two counts of sexual misconduct with a minor. Wrobel also argued that his felony
convictions did not reveal, as the State claimed, a history of violent crimes because “[n]o
one was ever injured.” Tr. p. 37. Wrobel’s remaining criminal history, he argued, was
limited to two class A misdemeanor charges for criminal conversion and for battery
(domestic violence) that were “almost ten years old” and which had ultimately been
3 dismissed and thus should not be the basis for imposing the maximum sentence. Id. at
31.
Wrobel’s second argument was that although S.P. suffered from autism, he was
“not a mentally handicapped person within the definition of what we constitute an
aggravating circumstance” because he was able to maintain a regular course load as a
sophomore in high school. Id. at 31, 35. Third, Wrobel argued that his own mental
illness, on the other hand, should be recognized as a mitigating factor.
Wrobel’s fourth argument at the sentencing hearing was that because he had been
sixty-five years of age when he committed his first sexual offense, an aggregate sentence
of thirty years was unnecessary to ensure that he would not be a threat to the community
upon release. Finally, Wrobel argued that the maximum sentence should not be imposed
because although S.P. was harmed, he did not appear to have any residual psychological
issues that were caused by Wrobel’s actions.
In response to Wrobel’s sentencing arguments, the State asked S.P.’s father to
testify regarding S.P.’s developmental age and behavior. S.P.’s father testified that due to
S.P.’s autism and his speech and hearing problems, S.P.’s “emotional and social
development are several years behind his physical development.” Tr. p. 24. Specifically,
S.P.’s father stated that at the time of the incident, S.P. “was probably only about ten
years of age socially” and that the “mismatch between his emotional and social
development and his physical development is one of the factors that made him vulnerable
to this type of incident.” Id.
4 Second, the State argued that Wrobel had taken advantage of a position of trust
and authority over S.P. and that Wrobel had engaged in “a type of grooming” of S.P. by
allowing S.P. special access to the YMCA after hours and in locations where S.P.
normally would not have been permitted. Id. at 35. The State also identified the large
age disparity between Wrobel and S.P. as a factor that likely contributed to the grooming
that occurred. Third, the State argued, presumably in response to Wrobel’s argument that
his actions left no residual effects on S.P., that the court should consider the fact that S.P.
received counseling after the events.
Next, the State argued that the court should consider Wrobel’s character in his
sentencing. The State mentioned that Wrobel fled from the scene when S.P.’s family
arrived at the YMCA to try to locate S.P. on the date of the offense. More particularly,
however, the State identified Wrobel’s criminal history and lack of remorse as potential
aggravating circumstances. Regarding Wrobel’s criminal history, the State appeared to
argue that Wrobel’s past crimes indicated a propensity for violent offenses. The State
also argued that the fact that Wrobel continues to violate the law indicates that he has not
been deterred from criminal behavior. In support of its argument that Wrobel was not
remorseful, the State referred to the Presentence Investigation Report (PSI), in which the
State asserted that Wrobel “characterizes himself as the victim[,]” “points the finger at
[S.P.] and tries to claim that he was the sexual aggressor[,] and basically calls [S.P.] the
criminal, which obviously points toward [Wrobel’s] character.” Tr. p. 36. In the same
report, Wrobel told the interviewing probation officer that he had “blacked out” during
5 the incident and could not remember what happened. Appellant’s App. p. 51. The State
argued that the way Wrobel “thinks in terms of dealing with problems and in society and
with people makes him a danger to this community.”3 Tr. p. 37.
In its sentencing order, the trial court identified Wrobel’s prior criminal history as
the sole aggravating factor and identified no mitigating factors. The trial court then
sentenced Wrobel to twenty years on each of the two counts of sexual misconduct with a
minor, to run concurrently pursuant to the plea agreement. The trial court then enhanced
Wrobel’s sentence by ten years on the habitual offender count, thus resulting in an
aggregate sentence of thirty years. He now appeals his sentence.4
DISCUSSION AND DECISION
Wrobel’s sole contention on appeal is that his sentence is inappropriate given the
nature of his offenses and his character. Indiana Rule of Appellate Procedure 7(B)
provides that we may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, we find that the sentence is inappropriate in light of the nature
of the offense and the character of the offender. In reviewing a Rule 7(B)
appropriateness challenge, we defer to the trial court. Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007). Moreover, under this rule, the question is not whether another 3 Earlier in the sentencing hearing, there was a discussion about whether Wrobel had voluntarily entered into the plea agreement due to a mental illness that affects his ability to acknowledge how his actions are wrong when he is later confronted with them. The trial court ultimately concluded that Wrobel’s guilty plea had been voluntary at the time of the plea hearing, and the voluntariness of the guilty plea is not an issue in Wrobel’s appeal. 4 Although Wrobel was convicted in 2001, his appeal is not untimely. Wrobel was granted leave by the trial court to file a belated appeal because he was not specifically advised of his right to appeal his sentence upon entering into a plea agreement with open sentencing terms. Appellant’s App. p. 21–25. 6 sentence is more appropriate, but whether the sentence imposed is inappropriate. King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of
persuading us that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
At the outset, we note that Wrobel takes issue with the trial court imposing a total
executed sentence of thirty years when “the trial court somehow felt as though an
enhanced 25 year sentence was initially appropriate.” Appellant’s Br. p. 5. Although
Wrobel attempts to weave this argument into his Rule 7(B) argument, it is in actuality a
claim that the trial court abused its discretion in sentencing Wrobel, rather than an
argument that Wrobel’s sentence is inappropriate in light of the nature of his offenses or
his character. Wrobel failed to raise an abuse of discretion claim or identify the standard
of review for an abuse of discretion claim in his appellate brief. Accordingly, Wrobel has
waived appellate review of this issue. See Marshall v. State, 621 N.E.2d 308, 318 (Ind.
1993) (observing that “[w]ithout citation to legal authority in addition to citation of the
record, we cannot determine the merits of the claim and, thus, consider the issue
waived”).
Waiver notwithstanding, the record shows that the trial court considered the
sentences for the sexual misconduct with a minor convictions separately from the
sentence enhancement for the habitual offender finding. Regarding the sexual
misconduct with a minor convictions, the trial court ultimately decided to impose the
maximum sentence authorized under Wrobel’s plea agreement, after noting, “I think we
7 have an agreement here that calls for a sentence cap of 20 years in each of these Counts,
and I think under all the circumstances that is appropriate.” Tr. p. 38. In its sentencing
order, the trial court identified Wrobel’s prior criminal history as an aggravating factor
that supported its decision to impose the maximum sentence. Appellant’s App. p. 14.
Regarding the habitual offender enhancement, Wrobel pleaded guilty to it and received
the minimum sentence enhancement. Id.
Having decided that Wrobel waived appellate review of his abuse of discretion
claim and that it is unpersuasive, we will address Wrobel’s argument that his sentence
was inappropriate in light of the nature of the offense and his character.
I. Nature of the Offense
Our review of whether a sentence is inappropriate in light of the nature of the
offense begins at the statutory advisory sentence. Anglemyer v. State, 868 N.E.2d 482,
494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). For a class B felony, the
advisory sentence is ten years, with a minimum sentence of six years and a maximum
sentence of twenty years. I.C. § 35-50-2-5. Upon a finding that a defendant is a habitual
offender, a defendant’s sentence may be enhanced by “an additional fixed term that is not
less than the advisory sentence for the underlying offense nor more than three (3) times
the advisory sentence for the underlying offense.” I.C. § 35-50-2-8(h). There is no
advisory enhancement for a habitual offender finding, only the above-specified range.
The maximum enhancement is set by statute at thirty years. Id. Thus, pursuant to
Wrobel’s plea agreement, his minimum sentence would have been six years on each of
8 two counts of sexual misconduct with a minor, to run concurrently, enhanced by ten years
for the habitual offender finding, to run consecutively, for a total executed sentence of
sixteen years. As explained above, the trial court imposed the maximum sentence
permitted under Wrobel’s plea agreement, which equaled a total executed sentence of
thirty years.
To support his claim that his sentence is inappropriate in light of the nature of the
offense, Wrobel argues that “the offense, while serious, was a single incident.”
Appellant’s Br. p. 3. The State counters, as it did in Wrobel’s sentencing hearing, by
asserting in part that the incidents for which Wrobel was convicted were the culmination
of multiple interactions and Wrobel’s “grooming” of S.P. Appellee’s Br. p. 7; see also
Tr. p. 35. Indeed, the record shows that Wrobel had observed S.P. in a sexual manner at
the YMCA on more than one occasion, that Wrobel permitted S.P. to stay at the YMCA
after it closed on June 12, 2000, and that on that date, Wrobel voluntarily engaged S.P. in
a number of illicit sexual acts. Compare Appellant’s App. p. 50–51, with Tr. p. 18–19,
35.
The record also shows that S.P. was particularly vulnerable to such an encounter
because of the discrepancy between his emotional and social development and his
physical development as a result of his autism. Tr. p. 34. Regardless of S.P.’s autism,
however, the record shows that he was merely fourteen years old at the time of the
incident and that Wrobel, at sixty-five years old and as an employee of the YMCA where
the incident took place, was in a position of authority over S.P. Id. at 18–20. Moreover,
9 when parents and guardians send their children to a YMCA, they expect them to be safe,
and this is not an unreasonable expectation. Finally, S.P. required counseling after the
incident. Id. at 36. Based on these considerations, Wrobel’s argument that his sentence
is inappropriate in light of the nature of the offense is unconvincing.
II. Wrobel’s Character
Wrobel also argues that his sentence is inappropriate in light of his character.
More particularly, Wrobel claims that the sentence is inappropriate because he “had a
limited criminal history, suffered from mental illnesses, and accepted responsibility for
his actions.” Appellant’s Br. p. 3.
A. Limited Criminal History
Regarding Wrobel’s claim that his sentence is inappropriate in light of his
character because he has a limited criminal history, Wrobel asserts that the trial court
improperly took his two prior felony convictions into account as aggravating factors for
his sentencing on the two sexual misconduct with a minor convictions when these prior
felony convictions were also used as the basis of finding Wrobel to be a habitual
offender. Appellant’s Br. p. 5–6. It is noted that the trial court did not identify precisely
which of Wrobel’s prior charges or convictions it was considering to be aggravating
factors on its sentencing order. Nevertheless, the trial court was not precluded from
considering Wrobel’s prior felony convictions in its deliberation of appropriate sentences
for Wrobel for the two sexual misconduct with a minor convictions.
10 On the contrary, our Supreme Court has held that since the advisory sentencing
scheme was enacted in 2005, “when a trial court uses the same criminal history as an
aggravator and as support for a habitual offender finding, it does not constitute
impermissible double enhancement of the offender’s sentence.” Pedraza v. State, 887
N.E.2d 77, 80 (Ind. 2008). Thus, Wrobel’s argument that the trial court could not
properly consider Wrobel’s prior felony convictions as aggravating circumstances
justifying his maximum sentences for the two sexual misconduct with a minor
convictions fails.
Wrobel further attempts to support his argument that his criminal history is limited
and that his sentence is thus inappropriate by arguing that his prior convictions failed to
demonstrate “any pattern or violent behavior.” Appellant’s Br. p. 6. To be sure, the
significance of a defendant’s criminal history as an aggravating circumstance “varies
based on the gravity, nature and number of prior offenses as they relate to the current
offense.” Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999). As noted above,
Wrobel’s previous felony convictions were for four counts of conspiracy to use interstate
commerce facility in the commission of a murder for hire and for carrying a concealed
weapon. Tr. p. 20–21; Appellant’s App. p. 48–49.
Wrobel is correct in that his prior offenses, at first glance, do not appear to relate
to the current offense, insofar as they were not sexual in nature. However, his prior
crimes are also not as dissimilar or insignificant as Wrobel claims, and we reject his
claims that his prior offenses show no propensity for violence. A conspiracy to murder
11 someone for hire, regardless of whether that person was ultimately harmed, necessarily
demonstrates intent to kill another or at the very least acquiescence in an agreement to
kill another. See Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000). Wrobel’s arrest record
shows that he had also once been charged with, though not convicted of, battery.
Appellant’s App. p. 49. Taken together, this history does not appear to indicate that
Wrobel was a peaceable fellow. Moreover, Wrobel’s multiple convictions and additional
arrests record would seem to reflect poorly on Wrobel’s character in that Wrobel has not
been reformed by his previous encounters with the criminal justice system. See Weiss v.
State, 848 N.E.2d 1070, 1073 (Ind. 2006).
With regard to Wrobel’s offenses involving S.P., although Wrobel may not have
used physical force to compel S.P.’s acquiescence, Wrobel took advantage of his position
of authority over S.P. as well as S.P.’s stunted social development and imposed himself
upon S.P. in a sexual manner. Such behavior appears to be consistent with Wrobel’s
history of violent behavior and disregard for the law.
Because the trial court could properly consider Wrobel’s prior felonies as
aggravators and due to the gravity, nature, and number of Wrobel’s prior offenses, we
cannot say that Wrobel had a limited criminal history such that the imposition of the
maximum sentence on each of the counts of sexual misconduct with a minor or his total
aggregate sentence of thirty years was inappropriate.
B. Mental Illness
12 Regarding Wrobel’s assertion that his sentence is inappropriate in light of his
character because his mental illnesses should be taken into account, nothing in the record
indicates that Wrobel failed to realize his actions were wrong at the time of his offenses.
Rather, the record only establishes that Wrobel has difficulty acknowledging his own
fault or accepting the consequences for his behavior after-the-fact, which Wrobel’s own
counsel characterized as a “defense mechanism” in Wrobel’s sentencing hearing. Tr. p.
26–27. Thus, the specifics relating to Wrobel’s reduced mental faculties as evidenced in
the record have failed to convince us that they are so significant that his sentence is
inappropriate.
C. Acceptance of Responsibility
Similarly, Wrobel’s assertion that his sentence in inappropriate in light of his
character because he “accepted responsibility for his action in the case by pleading
guilty” also fails. Appellant’s Br. p. 6. Generally, a plea of guilty “demonstrates a
defendant’s acceptance of responsibility for the crime and at least partially confirms the
mitigating evidence regarding his character.” Cotto v. State, 829 N.E.2d 520, 525 (Ind.
2005). However, “a guilty plea is not automatically a significant mitigating factor.”
Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1995). Rather, “the significance of a
guilty plea as a mitigating factor varies from case to case.” Anglemyer v. State, 875
N.E.2d 218, 221 (Ind. 2007) (on rehearing) (citing Francis v. State, 817 N.E.2d 235, 237
n.2 (Ind. 2004)). A guilty plea may be deemed insignificant as a mitigating factor “when
it does not demonstrate the defendant’s acceptance of responsibility or when the
13 defendant receives a substantial benefit in return for the plea.” Id. (internal citations
omitted).
Here, the evidence does not establish that Wrobel’s guilty plea was demonstrative
of his acceptance of responsibility. In fact, the record suggests that not only did Wrobel
attempt to excuse his actions by claiming not to remember the incidents, but he accused
S.P. of being the aggressor and attempted to portray himself as the victim. Appellant’s
App. p. 50–51.
Furthermore, it appears that Wrobel may have received a substantial benefit from
entering into the plea agreement. First, the State agreed to dismiss the third count of
sexual misconduct with a minor. Id. at 12. Second, although Wrobel received the
maximum sentences for the two remaining counts of sexual misconduct with a minor, the
plea agreement was written such that he necessarily would serve those sentences
concurrently. Id. at 11. Finally, pursuant to the plea agreement, Wrobel could receive
only the minimum sentence enhancement for the habitual offender finding. Id. Absent
the plea agreement, Wrobel could have received up to a thirty-year sentence
enhancement. I.C. § 35-50-28-8(h).
Because we cannot say that Wrobel’s guilty plea in fact showed an acceptance for
his actions and because the plea may have been merely a pragmatic move due to the
benefit received by Wrobel under the agreement, we are not convinced that Wrobel
demonstrated an acceptance of responsibility such that his sentence is inappropriate in
light of his character.
14 In sum, Wrobel has failed to convince us that his sentence is inappropriate because
of his alleged limited criminal history, mental illness, or acceptance of responsibility.
Indeed, based on our review of the nature of Wrobel’s offenses and his character, we
cannot say that his sentence is inappropriate. Accordingly, we decline to revise his
sentence.
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.