Dustin J. Spence v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 21, 2016
• Docket: 84A01-1509-CR-1414
• Status: Published

Opinion

FILED MEMORANDUM DECISION Apr 21 2016, 9:19 am

CLERK Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court Court of Appeals Memorandum Decision shall not be regarded as and Tax Court

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 Cara Schaefer Wieneke Gregory F. Zoeller Brooklyn, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dustin J. Spence, April 21, 2016

Appellant-Defendant, Court of Appeals Case No. 84A01-1509-CR-1414

v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Judge Appellee-Plaintiff Trial Court Cause No. 84D01-1501- F4-267

Bradford, Judge.

Case Summary Part of a group that calls itself “The Squad” (Appellant’s App. 8), Defendant-

Appellant Dustin Spence drove two friends to a residence, knowing they

Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016 Page 1 of 5 intended to commit theft therein. Appellee-Plaintiff the State of Indiana (“the

State”) charged Spence with burglary and theft. Pursuant to a plea agreement,

Spence pled guilty to burglary in exchange for dismissal of the theft and gang

enhancement charges. The trial court sentenced Spence to six years of

incarceration. Spence argues that his sentence is inappropriate because his role

in the burglary was minor and his character evinces rehabilitation. Because

Spence has failed to establish his sentence was inappropriate, we affirm.

Facts and Procedural History [1] Spence, Matt Hensley, and Steven Perry were part of a group who called

themselves the “The Squad.” Appellant’s App. p. 8. On January 5, 2015,

Spence drove Hensley and Perry to the residence of Veronica Kraemer and

Dustin Nally in Terre Haute, Vigo County. Spence knew that Hensley and

Perry entered the residence with intent to commit theft, though Spence did not

enter the residence himself.

[2] On January 29th, the State charged Spence with burglary and theft of Kraemer

and Nally’s two video-gaming systems, video games, and a fifty-two-inch flat-

screen television. Under his plea agreement, Spence agreed to plead guilty to

Level 4 felony burglary in return for dismissal of the theft and gang

enhancement charges. Spence’s plea agreement capped his sentence at six

years.

Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016 Page 2 of 5 [3] At sentencing, the trial court found Spence’s criminal history exemplifies a

“typical escalation” and no evidence that his criminal activity is nonrecurring.

Tr. p. 26. Accordingly, the trial court sentenced Spence to six years: four to be

executed as a direct commitment to In-Home Detention and the other two

suspended to formal probation. Spence contends that given certain mitigating

circumstances, his sentence was inappropriate.

Discussion and Decision Appropriateness of Sentence [4] This court “may revise a sentence authorized by statute if, after due

consideration of the trial court's decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” Ind. Appellate Rule 7(B). The defendant has the burden of

persuading this court that his sentence is inappropriate. See Hollar v. State, 916

N.E.2d 741, 743 (Ind. Ct. App. 2009) (citing Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007)). Furthermore, when considering an inappropriateness

challenge, “[w]e must exercise great restraint in reviewing and revising

sentences and recognize the special expertise of the trial bench in making

sentencing decisions.” Wells v. State, 836 N.E.2d 475, 480 (Ind. Ct. App. 2005).

[5] As to the nature of the offense, Spence argues that his role in the burglary was

minor compared to Hensley and Perry’s roles. Spence emphasizes that he did

not participate in the actual burglary itself but merely drove Hensley and Perry

to the victim’s house. However, a person who assists in a crime is nevertheless

Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016 Page 3 of 5 equally culpable as those who committed the crime, Ind. Code 35-41-2-4, as

Spence acknowledged. Moreover, no authority requires that co-participants

receive proportional sentencing. Lopez v. State, 527 N.E.2d 1119, 1133 (Ind.

1988).

[6] As to his character, Spence argues that his voluntary life changes should be

acknowledged as a reflection on his character and justify a reduction in his

sentence. Specifically, Spence claims he has broken ties with Hensley and

Perry, become employed, attempted to enroll in school, and complied with all

the conditions imposed upon him while on pretrial home detention.

Notwithstanding these life changes, we find that several other circumstances

outweigh them.

[7] Defendants’ criminal records can be relevant in determining their character,

revealing whether they are deterred from committing future offenses. See Cotto

v. State, 829 N.E.2d 520, 526 (Ind. 2005). Even a minor criminal record can be

relevant in assessing character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.

Ct. App. 2007). Whether prior offenses are significant depend 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).

[8] From 2010 to 2013, Spence committed six offenses, four of which were felony

property crimes. Specifically, one of those four was for burglary. We agree

with the trial court that Spence’s criminal record indicates “typical escalation,”

tr. p. 26, given that these past offenses are similar to the current offense and that

Court of Appeals of Indiana | Memorandum Decision 84A01-1509-CR-1414| April 21, 2016 Page 4 of 5 Spence has not been deterred by his prior contacts with the criminal justice

system.

[9] Additionally, Spence argues that his guilty plea should be taken into

consideration as a reflection of character because his plea shows that he has

accepted responsibility and it saves the State time and expenses by foregoing

trial. First, after review of the probable cause affidavit in Spence’s case, the

State clearly had substantial evidence of Spence’s guilt. Second, Spence

received substantial benefit from his plea agreement. The maximum sentence

for a Level 4 felony is twelve years and Spence’s sentence was capped at six.

Ind. Code § 35-50-2-5.5. The State also agreed to drop the theft and gang

enhancement charges against Spence. Spence was not ordered to serve any of

his six-year sentence in the Department of Correction; instead, he was allowed

to execute four of those years on In-Home Detention and the other two were

suspended to formal probation.

[10] Defendant has failed to persuade us that his sentence was inappropriate. The

judgment of the trial court is affirmed.

Baker, J., and Pyle, J., concur.

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