Frank D. Drake v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2018
• Docket: 02A05-1708-CR-1903
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 28 2018, 10:19 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Frank D. Drake, February 28, 2018 Appellant-Defendant, Court of Appeals Case No. 02A05-1708-CR-1903 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1611-F1-16

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 1 of 9 Case Summary [1] Frank D. Drake pled guilty by plea agreement to level 1 felony burglary, level 1

felony rape, and level 1 felony attempted rape and was sentenced to an

aggregate eighty-year term. He now appeals his sentence, contending that it is

inappropriate in light of the nature of the offenses and his character. Finding

that Drake has failed to establish that his sentence is inappropriate, we affirm.

Facts and Procedural History [2] Drake lived with G.L.’s daughter (“Daughter”) for eight years and had two

children with her. Although Drake and Daughter never married, G.L. treated

Drake as part of the family and often included him in family functions. In

November 2016, Drake attended a family birthday party at G.L.’s home. The

next night, knowing that G.L. would be staying alone, he entered her home

through a kitchen window and hid in her bedroom closet waiting for her to

return home. Shortly after G.L. returned home, Drake jumped out of the

closet, armed with a handgun and wearing a ski mask, and warned G.L.,

“You’re going to die, b**ch if you don’t let me rape you.” See Appellant’s App.

Vol. 2 at 14 (probable cause affidavit).1 He struck her numerous times on her

head and face with his fists and the butt of his handgun. He attempted to put

his penis in her vagina and then shoved it into her mouth and ordered her to

“suck it, or he would shoot her in the head and rape her body.” Id. at 15.

1 During Drake’s guilty plea hearing, he stipulated to the accuracy of the probable cause affidavit.

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 2 of 9 Although the perpetrator’s face was covered, G.L. recognized him as Drake due

to his voice and pleaded, “Frank, you’re with my daughter, and the kids, and I

love them and you, WHY?!” Id. Drake said, “Shut up, b**ch, I’ve been

waiting a long time to rape you.” Id. G.L. went in and out of consciousness

and was bleeding profusely, but eventually she extricated herself and ran

outside half-clothed. A neighbor attended to her and called authorities. She

was transported to the hospital and placed in intensive care for a week due to a

concussion, swelling of the brain, multiple head and face lacerations requiring

157 staples, a broken nose, and severe pain. She remained hospitalized for

nearly two months, followed by rehabilitation. Police confirmed Drake’s

identity by fingerprints left in bloodstains in G.L.’s bedroom as well as DNA

evidence from G.L.’s vaginal fluids.

[3] The State charged Drake with level 1 felony burglary resulting in serious bodily

injury, level 1 felony rape with deadly force and a deadly weapon, level 1 felony

attempted rape, level 5 felony battery while armed with a deadly weapon, and

level 5 felony battery resulting in serious bodily injury. Drake pled guilty by

open plea agreement to burglary, rape, and attempted rape, all as level 1

felonies, in exchange for which the State agreed to dismiss the two battery

counts.

[4] During sentencing, the State introduced photographic exhibits showing the

extent of G.L.’s injuries and the bloody crime scene. The trial court identified

as aggravating circumstances the extremely violent nature of Drake’s offenses,

his criminal history, and his failure to respond to previous opportunities at

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 3 of 9 rehabilitation. As for mitigating circumstances, the trial court identified

Drake’s guilty plea. The court considered and rejected Drake’s proffered

mitigators of remorse, acceptance of responsibility, and family support

obligations. The trial court sentenced Drake to an aggregate eighty-year term,

with forty years for each level 1 felony count, with the sentence for rape to be

served consecutive to the sentence for burglary, and with the sentence for

attempted rape to be served concurrently. Drake now appeals his sentence.

Additional facts will be provided as necessary.

Discussion and Decision [5] Drake asks that we review and revise his sentence pursuant to Indiana

Appellate Rule 7(B), which states that we “may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, [this] Court finds

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” When a defendant requests appellate review and

revision of his sentence, we have the power to affirm or reduce the sentence.

Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

principal role is to leaven the outliers, focusing on the length of the aggregate

sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

consideration of all aspects of the penal consequences imposed by the trial court

in sentencing, i.e., whether it consists of executed time, probation, suspension,

home detention, or placement in community corrections, and whether the

sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 4 of 9 1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s

sentence is appropriate or if another sentence might be more appropriate; rather,

the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581

(quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied

(2014)). The defendant bears the burden of persuading this Court that his

sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d

1174, 1181 (Ind. 2016).

[6] In considering the nature of Drake’s offenses, “the advisory sentence is the

starting point the Legislature has selected as an appropriate sentence.” Green v.

State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

determining the appropriateness of a sentence that deviates from an advisory

sentence, we consider whether there is anything more or less egregious about

the offense as committed by the defendant that “makes it different from the

typical offense accounted for by the legislature when it set the advisory

sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).

[7] Drake pled guilty via plea agreement to three level 1 felonies, each carrying a

sentencing range of twenty to forty years, with an advisory term of thirty years.

Ind. Code § 35-50-2-4(b). The trial court imposed consecutive forty-year terms

for Drake’s burglary and rape convictions and a concurrent forty-year term for

his attempted rape conviction.

[8] In pronouncing sentence, the trial court expressed its consideration of the

nature of Drake’s offenses as follows:

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 5 of 9 I do find as a further aggravating circumstance the nature and circumstances of the crimes that you committed and the extraordinary impact on the victim and her family, and it goes far out of what any legislator would ever contemplate for a level one felony, Mr. Drake. The damage that you did initially is absolutely horrific. Your attorney – previous attorney referred to the gruesome photographs that would have been introduced. I’ve been a judge for 20 years, Mr. Drake, I’ve been an Allen County prosecutor prior to that for many years, and I was charged with the responsibility as a prosecutor for prosecuting major sex offense cases and homicides; and in all of that legal experience that I have, Mr. Drake, you rank right up there with some of the wors[t] offenses I’ve ever seen and one of the worst offenders I have ever seen. The extraordinary impact and the nature and circumstances of the crimes that you commit are beyond the pale, Mr. Drake …. I fully believe what the State indicates, that due to the level and nature and extensive injury, your intent was probably far worse than what you actually were charged with; and thankfully, as her father said, somebody was watching over this woman.

Tr. Vol. 2 at 44-45.

[9] Based on our review of the record, and particularly the gruesome photographs

depicting the crime scene and G.L.’s injuries, we agree with the trial court’s

observation that Drake’s offenses were among the worst of the worst. Having

enjoyed G.L.’s hospitality the previous day, Drake used information he gained

to discern the best time to enter her home and lie in wait. He then forcibly

raped, pistol-whipped, and slugged G.L. to the point that she was

unrecognizable due to extreme bleeding and swelling. G.L.’s life-threatening

physical injuries forced her to spend a week in intensive care, followed by

several weeks of additional hospitalization, with rehabilitation thereafter. She Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 6 of 9 continues to suffer not only the chronic physical consequences, including dizzy

spells, headaches, impaired vision, and facial scarring, but also the emotional

trauma and daily fear of an intruder in her home. The emotional trauma has

bled throughout the entire family, due to Drake’s familial ties. Simply put,

G.L.’s life has been permanently damaged because of Drake’s heinous actions.

[10] Similarly, Drake’s character does not militate toward a shorter sentence. We

conduct our review of his character by engaging in a broad consideration of his

qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other

grounds on reh’g, 11 N.E.3d 571. Drake’s principal argument concerns his

criminal history, which he believes to have been overemphasized. The twenty-

six-year-old Drake correctly observes that his adult criminal record is not

lengthy, with one class D felony conviction for receiving stolen property and

one class C misdemeanor conviction for minor entering a tavern. His juvenile

record includes true findings for marijuana possession and resisting law

enforcement, an informal adjustment on a disorderly conduct count, and two

incidents of unsatisfactory discharge from probation.

[11] Notwithstanding, we find Drake to be a person of uncontrolled anger and

disrespect for authority, as is best illustrated by his profanity-laced outburst at

sentencing. Not merely once, but numerous times, he railed at the trial court,

“You just gave me 80 f**king years? …. Eighty f**king years?” Tr. Vol. 2 at 45-

46. The bailiff warned him to calm down, and the trial court eventually ordered

Drake removed from the courtroom.

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 7 of 9 [12] Drake’s allocution statement includes self-focused assertions and attempts to

deflect. For example, he claimed to take full responsibility yet, in the same

breath, rationalized that he was intoxicated when he raped and beat G.L. and

never would have done this in his right mind. He expressed his apologies to

G.L. and her family yet went on to say,

I did not mean for this to happen, I didn’t plan it. I’ll never touch alcohol again. I didn’t do this, I don’t remember it. I just want to live my life and I want to have a life. I’m going to prison for the rest of my life and I know it. I feel so bad.

Id. at 41. The trial court considered Drake’s apologies and simply was

unconvinced:

You’ve indicated here in open court that, “I didn’t mean for any of this to happen and I’m sorry.” And you are sorry, and I know you’re sorry for yourself that you got caught. You didn’t mean for her to be sitting there, you didn’t mean for that to happen.

Id. at 44-45. We agree with the trial court’s assessment and particularly note

that rather than focusing on the impact of his actions on G.L. and his children,

Drake repeatedly focused on his own future.

[13] Finally, we address Drake’s attempts to characterize himself as a good father

with support obligations to his children that merit a reduced sentence. While

we do not discount the negative financial impact of Drake’s incarceration on his

children, we note that incarceration almost always poses a degree of hardship

on dependents. Hunter v. State, 72 N.E.3d 928, 936 (Ind. Ct. App. 2017), trans.

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 8 of 9 denied. As such, the record must show special circumstances demonstrating

that the hardship of the father’s incarceration on the defendant’s dependents

will be undue or unusual. Id. at 935-36. The record here simply does not

indicate such circumstances. In fact, the unusual circumstance in this case –

that Drake brutally beat and raped his children’s maternal grandmother – shows

Drake’s complete disregard for his children’s well-being. G.L.’s desperate pleas

for him to stop his attack addressed his relationship with her daughter and their

children. Yet, unfazed, Drake expressed his long-term desire to rape her and

continued to do so and to beat her within an inch of her life. In sum, Drake has

failed to meet his burden of demonstrating that his sentence is inappropriate in

light of the nature of his offenses and his character. Accordingly, we affirm.

[14] Affirmed.

Robb, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A05-1708-CR-1903 | February 28, 2018 Page 9 of 9