Gootee v. State

942 N.E.2d 111, 2011 Ind. App. LEXIS 59, 2011 WL 193412
CourtIndiana Court of Appeals
DecidedJanuary 21, 2011
Docket67A05-1006-CR-74
StatusPublished
Cited by14 cases

This text of 942 N.E.2d 111 (Gootee v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gootee v. State, 942 N.E.2d 111, 2011 Ind. App. LEXIS 59, 2011 WL 193412 (Ind. Ct. App. 2011).

Opinions

OPINION

SHARPNACK, Senior Judge.

STATEMENT OF THE CASE

Zachary Gootee appeals the sentence imposed by the trial court upon resentenc-[112]*112ing for his convictions of four counts of forgery, all Class C felonies, Indiana Code section 35-43-5-2(b) (2006); three counts of fraud, all Class D felonies, Indiana Code section 35-43-5-4 (2005); one count of theft, a Class D felony, Indiana Code section 35-43^-2 (1985); and a determination that he is a habitual offender, Indiana Code section 35-50-2-8 (2005).

We affirm.

ISSUE

Gootee raises one issue: whether, upon resentencing Gootee, the trial court abused its discretion in sentencing him.

FACTS AND PROCEDURAL HISTORY

The facts of this case, as set forth in this Court’s opinion in Gdotee’s first appeal, are as follows:

On Friday, December 1, 2006, at shortly after 2:00 p.m., Gootee came to Ruth Stanger’s home in Putnam County, Indiana. Stanger was ninety-two (92) and legally blind. Gootee said that he had run out of gas and asked to use Stanger’s phone. Stanger allowed Goo-tee to enter her home. At that time, Stanger’s purse, which contained her debit card and a piece of paper with the card’s Personal Identification Number, was visible from the kitchen telephone. Gootee tried to use the kitchen phone but stated that it did not appear to be working. At Gootee’s request, Stanger retrieved a cordless phone from her bedroom. Gootee tried to use it, reported that it also appeared to be malfunctioning, and left.
At 4:32 p.m. that same day, Gootee used Stanger’s debit card to remove $202 from an Automatic Teller Machine (“ATM”) at a Shell station in Greencas-tle, Putnam County. On December 2, 2006, at 12:14 and 12:15 a.m., Gootee returned to the ATM at the Shell station and made two (2) withdrawals of $202 each using Stanger’s card. On the same day, at 9:16 p.m., Gootee went to the Country Cork and Cap, a liquor store located in Bainbridge, Putnam County, and used Stanger’s card to purchase a twelve-pack of beer for $10.00.
Later that evening, around midnight, Gootee, his girlfriend, and their baby arrived at Richard Stedman’s home on the west side of Indianapolis. Gootee stayed with Stedman for several days. On the morning of December 4, 2006, Gootee and Stedman went to a Merjer store on the west side of Indianapolis, in Marion County, and Gootee purchased a television set for $760.18 using Stanger’s card.
Later in the day on December 4, 2006, Stanger’s bank noticed the withdrawals and charges on her debit card and contacted her about the account activity. At that time, Stanger realized her purse was missing and had the bank block the card from further use.
The State charged Gootee with the crimes identified above for his theft and misuse of Stanger’s debit card in Putnam County. A jury found Gootee guilty as charged. The trial court sentenced Gootee to serve ten (10) years for each class C felony conviction, to be served concurrent with one another, four (4) years for each Class D felony conviction, to be served concurrent with one another and consecutive to the Class C felony convictions, plus ten (10) years for the habitual offender determination, for a total sentence of twenty-four (24) years.

Gootee v. State, 923 N.E.2d 997 (Ind.Ct.App.2010):

In Gootee’s first appeal, this Court held that the trial court improperly sentenced Gootee in excess of the statutory maximum [113]*113for both Class C and Class D felonies and improperly imposed a separate sentence for his status as a habitual offender. Specifically, the trial court sentenced Gootee to ten years on each of the Class C felonies in violation of Indiana Code section 35-50-2-6 (2005), which provides that eight years is the maximum term for a Class C felony. The trial court also sentenced him to four years on each of the Class D felonies in violation of Indiana Code section 35-50-2-7 (2005), which provides that three years is the maximum term for a Class D felony. On appeal, this Court remanded the case to the trial court for resentencing in accordance with the statutory limits and for specification as to which conviction the habitual offender enhancement applies. The trial court resentenced Gootee, and he now appeals from that sentence.

DISCUSSION AND DECISION

In this appeal, Gootee contends that the trial court abused its discretion in resen-tencing him. Particularly, he argues that the trial court erred by imposing a harsher sentence and by imposing consecutive sentences.

Upon resentencing a defendant, a court cannot impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence. Hicks v. State, 729 N.E.2d 144, 146 (Ind.2000); Ind. Post-Conviction Rule l(10)(b).

Gootee was tried and convicted of the following:

Count I — forgery, Class C felony
Count II — forgery, Class C felony
Count III — forgery, Class C felony
Count IV — fraud, Class D felony
Count V — fraud, Class D felony
Count VI — fraud, Class D felony
Count VII — habitual offender
Count VIII — forgery, Class C felony
Count IX — theft, Class D felony.

Originally, he was sentenced to ten years each on Counts I, II, III and VIII, to be served concurrently to each other; four years each on Counts IV, V, VI, and IX, to be served concurrently to each other but consecutive to Counts I, II III, VII, and VIII; and ten years on Count VII, to be served consecutively to all other counts for an aggregate sentence of twenty-four years.

Upon resentencing, Gootee was sentenced to seven years on Counts I, II, III and VIII, and three years on Counts IV, V, VI and IX. Count I was enhanced by ten years in light of Gootee’s status as a habitual offender. The court further ordered Counts IV, VIII, and IX to run concurrent to Count I; Count II to run consecutive to Count I; and Counts III, V, and VI to run concurrent to Count II and consecutive to Count I for an aggregate sentence of twenty-four years.

On resentencing, the trial court found applicable the same aggravating circumstances stated in Gootee’s initial sentencing, brought Gootee’s sentences within the applicable statutory máximums, and reworked the concurrent and consecutive scheme in order to arrive at the same aggregate sentence that it had imposed at Gootee’s first sentencing. Gootee points out that had the trial court maintained the concurrent and consecutive scheme used for his initial sentence, his new sentence would be less than the twenty-four years imposed. Therefore, Gootee insists, the sentence after remand is a harsher sentence.

[114]

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Gootee v. State
942 N.E.2d 111 (Indiana Court of Appeals, 2011)

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Bluebook (online)
942 N.E.2d 111, 2011 Ind. App. LEXIS 59, 2011 WL 193412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gootee-v-state-indctapp-2011.