Hoeppner v. State

918 N.E.2d 695, 2009 Ind. App. LEXIS 2834, 2009 WL 5124889
CourtIndiana Court of Appeals
DecidedDecember 29, 2009
DocketNo. 52A04-0908-CR-494
StatusPublished
Cited by13 cases

This text of 918 N.E.2d 695 (Hoeppner 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
Hoeppner v. State, 918 N.E.2d 695, 2009 Ind. App. LEXIS 2834, 2009 WL 5124889 (Ind. Ct. App. 2009).

Opinion

OPINION

BAKER, Chief Judge.

Appellant-defendant Kody Hoeppner appeals the sentence imposed by the trial [697]*697court after he pleaded guilty to Auto Theft,1 a class D felony, Institutional Criminal Mischief,2 a class C felony, and Arson,3 a class D felony. Hoeppner argues that the trial court should have considered his youth as a mitigator and that the trial court erred by ordering consecutive sentences without first specifying a valid ag-gravator. Additionally, Hoeppner argues that a condition of probation requiring admissibility of lie detector results and specifying that a positive result constitutes a probation violation is invalid. Finding no error with respect to sentencing but finding that a part of the condition of probation should be struck and amended, we affirm in part, reverse in part, and remand with instructions.

FACTS

On March 5, 2009, Hoeppner and Michael Smith were smoking marijuana and taking Klonopin pills at Smith's home in Miami County. Over the course of the evening, Hoeppner took over thirty Klono-pin pills The two men wanted cigarettes but did not have enough money, so they decided to steal change from unlocked cars. One of the vehicles they entered had the keys in it, so Hoeppner and Smith took it off-roading. The vehicle became stuck in the mud, and when the men were unable to free it, they set it on fire "to get rid of evidence, like fingerprints and stuff...." Sent. Tr. p. 26.

Hoeppner and Smith then found another vehicle with its keys in it. They stole that vehicle and drove it to a convenience store to purchase cigarettes, but were refused because they did not have identification. After driving around some more, they ended up at the community pool, where they intentionally drove over a bike rack, a fence, and a light pole.

After leaving the pool, they drove onto the community golf course, damaging a putting green. The two men then drove toward the clubhouse, where they drove over a sign and damaged a planter, railing, and seat. They also drove around the clubhouse, striking and damaging at least seven golf carts. They were arrested while fleeing the golf course on foot. The total property damage resulting from this spree was over $24,000.

On March 11, 2009, the State charged Hoeppner with two counts of class D felony auto theft, two counts of class C felony institutional criminal mischief, and one count of class D felony arson. On June 29, 2009, Hoeppner pleaded guilty to one count of class D felony auto theft, one count of class C felony institutional mischief, and class D felony arson in exchange for the state's agreement to dismiss the remaining charges. The plea agreement contained a four-year cap on the executed portion of Hoeppner's sentence but otherwise left sentencing to the trial court's discretion.

At the July 27, 2009, sentencing hearing, the trial court declined to consider nineteen-year-old Hoeppner's age as a mitigating factor. It found his guilty plea as a mitigator and his pending guilty plea for possession of marijuana in a separate proceeding as an aggravator. The trial court found that the aggravator and mitigator were in equipoise, imposing a sentence of one and one-half years for auto theft, all suspended, four years for institutional criminal mischief, with one year suspended to probation, and one and one-half years for arson, all suspended to probation. The trial court then found an additional aggra-[698]*698vator, namely, the fact that Hoeppner had an opportunity to end the crime spree after setting the first stolen vehicle on fire, but chose not to do so. The trial court found that this aggravator warranted an order that the arson sentence be served consecutively to the other two concurrent sentences. Thus, Hoeppner received an aggregate executed sentence of three years followed by two and one-half years of probation. Among Hoeppner's conditions of probation was the following provision:

... You shall submit to a lie detection test and/or alcohol and drug detection test equipment, as requested by your probation officer, to determine personal drug and/or alcohol use and your knowledge of drug trafficking.... Positive results in any of the above tests may be used against you in a court proceeding and will constitute a violation of your probation....

Appellant's App. p. 33. Hoeppner now appeals.

DISCUSSION AND DECISION

I. Sentence

A. Hoeppner's Youth as a Mitigator

Hoeppner first argues that the trial court abused its discretion by declining to consider his youth as a mitigating factor. In Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on rehearing, 875 N.E.2d 218 (2007), our Supreme Court held that trial courts are required to enter sentencing statements whenever imposing a sentence for a felony offense. We review sentencing decisions for an abuse of discretion. Id. A trial court may abuse its discretion by entering a sentencing statement that includes reasons for imposing a sentence not supported by the record, omits reasons clearly supported by the record, or includes reasons that are improper as a matter of law. Id. at 490-91. We will conclude that the trial court overlooked a mitigator only when the record contains substantial evidence of a significant mitigating cireumstance. Creager v. State, 737 N.E.2d 771, 782 (Ind.Ct.App.2000).

Our Supreme Court has commented that "[alge is neither a statutory nor a per se mitigating factor," and "focusing on chronological age, while often a shorthand for measuring culpability, is frequently not the end of the inquiry for people in their teens and early twenties" Monegan v. State, 756 N.E.2d 499, 504 (Ind.2001). Here, Ho-eppner was nineteen years old at the time of sentencing, which is beyond the age at which the law commands special treatment. Id.

Hoeppner voluntarily consumed marijuana and thirty Klonopin pills, proceeding to go on a crime spree that caused over $24,000 in property damage. A reasonable person could conclude that it was voluntary intoxication, rather than youth or naivete, that caused his criminal behavior. And although Hoeppner is not yet a hardened criminal, he has had multiple contacts with the criminal justice system so far in his relatively short life. At the time of sentencing, he had four juvenile referrals-two for runaway, one for theft, and one for resisting law enforceement-and a pending guilty plea for possession of marijuana. Although reasonable minds could differ as to the effect of Hoeppner's age on his culpability, we cannot say that this record presents substantial evidence of a significant mitigator that the trial court overlooked. Thus, we do not find that the trial court abused its discretion in this regard.

B. Consecutive Sentences

Next, Hoeppoer argues that the trial court erred by ordering that his arson sentence be served consecutively to the [699]*699sentences on his other two convictions. To impose consecutive sentences, the trial court must find at least one aggravating circumstance, and consecutive sentences are improper when aggravators and miti-gators are in equipoise.

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Bluebook (online)
918 N.E.2d 695, 2009 Ind. App. LEXIS 2834, 2009 WL 5124889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoeppner-v-state-indctapp-2009.