MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 31 2015, 9:07 am
this Memorandum Decision shall not be regarded as 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 Andrew J. Sickmann Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Virant, August 31, 2015 Appellant-Defendant, Court of Appeals Cause No. 89A05-1502-CR-85 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David A. Kolger, Appellee-Plaintiff. Judge Trial Court Cause No. 89C01-1312-FA-33
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 1 of 7 Case Summary [1] Jeremy Virant appeals his sentence for Class A felony burglary and his status as
an habitual offender. We affirm.
Issue [2] Virant raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
Facts [3] On December 3, 2013, Lane Deaton and his step-father, Michael Hickmott,
argued over a broken window in Hickmott’s vehicle, which Deaton had
borrowed. The police were called, and Officer Stephen Foster of the
Cambridge City Police Department advised Deaton to leave for a while.
Deaton walked down the street and saw Brian Hook. Deaton went to Hook’s
house, where he met Virant. Deaton was upset, and Virant told him, “they
were going to take care of it tonight. [He] wouldn’t have to worry about it.”
Tr. p. 301. Officer Foster later stopped to talk to Deaton in front of Hook’s
house and gave Deaton a ride to a friend’s house.
[4] Virant, Hook, and Joshua Bishop later went to Hickmott’s house and knocked
on the door. When Hickmott answered the door, Virant and Hook pushed
their way into the house and repeatedly punched and hit Hickmott. Hickmott’s
severely disabled fifteen-year-old daughter was in her bedroom during the
attack. When Deaton and his friends returned to Hickmott’s residence, Deaton Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 2 of 7 saw shadows through the front window that were kicking something. When he
entered the residence, he saw Virant and Hook standing over Hickmott, who
was bleeding heavily. Hickmott begged for help and said they were trying to
kill him. Deaton convinced Virant and Hook to talk to him outside. Virant
said that “they got him good.” Id. at 308. While they were outside, Hickmott
escaped out the back door and called 911 from a neighbor’s house. When
Hickmott saw officers at his house, he tried to go back to his house but was
found unconscious in the yard. He sustained facial and head injuries, bruising
to his body, and was required to wear an air cast on his ankle for a week.
[5] The State charged Virant with ten counts: Count I, Class A felony burglary;
Count II, Class A felony burglary; Count III, Class A felony conspiracy to
commit burglary; Count IV, Class C felony battery; Count V, Class C felony
conspiracy to commit burglary; Count VI, Class C felony battery; Count VII,
Class D felony residential entry; Count VIII, Class D felony conspiracy to
commit residential entry; Count IX, Class A felony burglary; and Count X,
Class A felony conspiracy to commit burglary. The State also alleged that
Virant was an habitual offender. In January 2014, Virant agreed to plead guilty
to certain charges, but the trial court rejected the plea agreement after Virant
refused to participate in the presentence investigation report. In February 2014,
Virant filed a motion to reinstate the plea agreement, which the trial court
denied. In March 2014, Virant again attempted to plead guilty. However, the
trial court again rejected the plea agreement, apparently due to allegedly
perjured testimony at the guilty plea/sentencing hearing.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 3 of 7 [6] In December 2014, the State filed a motion to dismiss Counts III, V, VII, VIII,
IX, and X, which the trial court granted. Virant then filed another motion to
reinstate the plea agreement, which the trial court denied. A jury trial on
Counts I, II, IV, VI, and the habitual offender allegation was held in January
2015. The jury found Virant guilty as charged, and Virant admitted the
habitual offender allegation.
[7] At sentencing, the trial court entered judgment of conviction only on Count I,
Class A felony burglary due to double jeopardy concerns. The trial court found
the following aggravators: Virant’s criminal history, the fact that the offense
was committed with Hickmott’s disabled daughter in the house, the fact that
Virant committed the offense while on parole, Virant’s lack of remorse, and his
jail violations while awaiting trial. The trial court found Virant’s difficult
childhood and guilty plea to the habitual offender allegation to be minor
mitigators. The trial court gave no mitigating weight to Virant’s mental health
issues and intoxication at the time of the offense. The trial court sentenced
Virant to forty-two years for the Class A felony conviction, enhanced by thirty
years due to Virant’s status as an habitual offender. Virant now appeals.
Analysis [8] Virant argues that his seventy-two-year sentence is inappropriate. Indiana
Appellate Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely” Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 4 of 7 deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[9] The principal role of Appellate Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224.
[10] The nature of the offense is that Virant broke into Deaton’s house and severely
beat Deaton’s stepfather. Virant admitted that he hit Hickmott thirty to forty
times.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 31 2015, 9:07 am
this Memorandum Decision shall not be regarded as 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 Andrew J. Sickmann Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Virant, August 31, 2015 Appellant-Defendant, Court of Appeals Cause No. 89A05-1502-CR-85 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David A. Kolger, Appellee-Plaintiff. Judge Trial Court Cause No. 89C01-1312-FA-33
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 1 of 7 Case Summary [1] Jeremy Virant appeals his sentence for Class A felony burglary and his status as
an habitual offender. We affirm.
Issue [2] Virant raises one issue, which we restate as whether his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
Facts [3] On December 3, 2013, Lane Deaton and his step-father, Michael Hickmott,
argued over a broken window in Hickmott’s vehicle, which Deaton had
borrowed. The police were called, and Officer Stephen Foster of the
Cambridge City Police Department advised Deaton to leave for a while.
Deaton walked down the street and saw Brian Hook. Deaton went to Hook’s
house, where he met Virant. Deaton was upset, and Virant told him, “they
were going to take care of it tonight. [He] wouldn’t have to worry about it.”
Tr. p. 301. Officer Foster later stopped to talk to Deaton in front of Hook’s
house and gave Deaton a ride to a friend’s house.
[4] Virant, Hook, and Joshua Bishop later went to Hickmott’s house and knocked
on the door. When Hickmott answered the door, Virant and Hook pushed
their way into the house and repeatedly punched and hit Hickmott. Hickmott’s
severely disabled fifteen-year-old daughter was in her bedroom during the
attack. When Deaton and his friends returned to Hickmott’s residence, Deaton Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 2 of 7 saw shadows through the front window that were kicking something. When he
entered the residence, he saw Virant and Hook standing over Hickmott, who
was bleeding heavily. Hickmott begged for help and said they were trying to
kill him. Deaton convinced Virant and Hook to talk to him outside. Virant
said that “they got him good.” Id. at 308. While they were outside, Hickmott
escaped out the back door and called 911 from a neighbor’s house. When
Hickmott saw officers at his house, he tried to go back to his house but was
found unconscious in the yard. He sustained facial and head injuries, bruising
to his body, and was required to wear an air cast on his ankle for a week.
[5] The State charged Virant with ten counts: Count I, Class A felony burglary;
Count II, Class A felony burglary; Count III, Class A felony conspiracy to
commit burglary; Count IV, Class C felony battery; Count V, Class C felony
conspiracy to commit burglary; Count VI, Class C felony battery; Count VII,
Class D felony residential entry; Count VIII, Class D felony conspiracy to
commit residential entry; Count IX, Class A felony burglary; and Count X,
Class A felony conspiracy to commit burglary. The State also alleged that
Virant was an habitual offender. In January 2014, Virant agreed to plead guilty
to certain charges, but the trial court rejected the plea agreement after Virant
refused to participate in the presentence investigation report. In February 2014,
Virant filed a motion to reinstate the plea agreement, which the trial court
denied. In March 2014, Virant again attempted to plead guilty. However, the
trial court again rejected the plea agreement, apparently due to allegedly
perjured testimony at the guilty plea/sentencing hearing.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 3 of 7 [6] In December 2014, the State filed a motion to dismiss Counts III, V, VII, VIII,
IX, and X, which the trial court granted. Virant then filed another motion to
reinstate the plea agreement, which the trial court denied. A jury trial on
Counts I, II, IV, VI, and the habitual offender allegation was held in January
2015. The jury found Virant guilty as charged, and Virant admitted the
habitual offender allegation.
[7] At sentencing, the trial court entered judgment of conviction only on Count I,
Class A felony burglary due to double jeopardy concerns. The trial court found
the following aggravators: Virant’s criminal history, the fact that the offense
was committed with Hickmott’s disabled daughter in the house, the fact that
Virant committed the offense while on parole, Virant’s lack of remorse, and his
jail violations while awaiting trial. The trial court found Virant’s difficult
childhood and guilty plea to the habitual offender allegation to be minor
mitigators. The trial court gave no mitigating weight to Virant’s mental health
issues and intoxication at the time of the offense. The trial court sentenced
Virant to forty-two years for the Class A felony conviction, enhanced by thirty
years due to Virant’s status as an habitual offender. Virant now appeals.
Analysis [8] Virant argues that his seventy-two-year sentence is inappropriate. Indiana
Appellate Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely” Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 4 of 7 deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[9] The principal role of Appellate Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224.
[10] The nature of the offense is that Virant broke into Deaton’s house and severely
beat Deaton’s stepfather. Virant admitted that he hit Hickmott thirty to forty
times. Hickmott’s disabled daughter was in the house at the time, and Virant
repeatedly threatened to kill Hickmott. Virant only stopped when Deaton
intervened.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 5 of 7 [11] As for Virant’s character, he has a substantial criminal history. He has juvenile
adjudications for criminal conversion and theft. He has two adult convictions
for misdemeanor resisting law enforcement and felony convictions for Class B
felony burglary, Class C felony intimidation, and Class D felony battery
resulting in bodily injury on a correctional officer. Virant’s probation has been
revoked three times, and he was on parole at the time of this offense. Two days
after he was released on his own recognizance in this case, he was arrested for
Class D felony auto theft. While in jail awaiting trial, he had multiple major
rule violations. The trial court properly noted that Virant was “a danger to
everybody that [he came] into contact with.” Tr. p. 542.
[12] Virant argues that his actions were the result of “circumstances that are unlikely
to recur.” Appellant’s Br. p. 8. However, the State properly notes that Virant’s
actions in this case demonstrate further his “propensity for violence and
breaking the law.” Appellee’s Br. p. 10. Given Virant’s history of violence and
criminal activity, the trial court properly rejected this proposed mitigator.
Virant also argues that the trial court should have reduced his sentence due to
his repeated attempts to plead guilty. The trial court rejected his first attempt to
plead guilty after he refused to participate in the presentence investigation. The
trial court later rejected another attempt to plead guilty after he allegedly
perjured himself. The trial court did give Virant’s guilty plea to the habitual
offender allegation some mitigating weight. However, given Virant’s
unsuccessful attempts to plead guilty to the main charges and his lack of
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 6 of 7 remorse, the trial court properly refused to give his guilty plea attempts
mitigating weight.
[13] Given Virant’s senseless attack on a stranger and his substantial criminal
history, we cannot say that the sentence imposed by the trial court is
inappropriate in light of the nature of the offense and the character of the
Conclusion [14] The sentence imposed by the trial court is not inappropriate. We affirm.
[15] Affirmed.
Kirsch, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A05-1502-CR-85 | August 31, 2015 Page 7 of 7