Pursuant to Ind.Appellate Rule 65(D), 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:
BRYAN M. TRUITT GREGORY F. ZOELLER Bertig & Associates, LLC Attorney General of Indiana Valparaiso, Indiana ERIC P. BABBS
FILED Deputy Attorney General Indianapolis, Indiana Feb 08 2012, 9:59 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
JOE SONGER, JR., ) ) Appellant, ) ) vs. ) No. 64A03-1101-CR-41 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Mary R. Harper, Judge Cause No. 64D05-0912-FB-12217
February 8, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, J. Following a jury trial, Joe Songer, Jr. (“Songer”) was convicted in Porter Superior
Court of two counts of Class C felony burglary and sentenced to fourteen years executed
in the Department of Correction. Songer appeals and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the offender. We
affirm.
Facts and Procedural History
On November 14, 2009, Songer and his friend Wade Roberts (“Roberts”) decided
to break into Mike’s Premier Grill in Valparaiso, Indiana to steal televisions. After the
restaurant had closed for the night, Roberts used a sledgehammer to break in the door,
and then he and Songer entered and stole two large flat screen televisions and between
$400 and $500 in cash. Thereafter, the two drove to Songer’s house, where they
unloaded one television and divided up the cash.
Approximately two weeks later, on Thursday, November 26, 2009—Thanksgiving
Day—Songer and Roberts decided to burglarize the Road House Bar and Grill, another
Valparaiso restaurant. Some time between 10:00 and 11:00 p.m., Songer and Roberts
drove to the restaurant. When they arrived, Roberts drove around and acted as a lookout
while Songer broke into the building. Once inside, Songer stole a handgun,
approximately two-dozen bottles of liquor, a computer, and between $4,000 and $5,000
in cash. Outside the building, Songer cut the cable and telephone lines, as well as the
power lines that supplied the restaurant’s security system. Songer then returned to the
vehicle, where he showed Roberts the handgun and gave him approximately $1,800.
2 As a result of these events, Songer was charged with two counts of Class C felony
burglary. A four-day jury trial commenced on October 25, 2010, at which Roberts
testified for the State. At the conclusion of the evidence, Songer was found guilty as
charged. The trial court sentenced Songer to seven years executed on each conviction to
run consecutively, for an aggregate sentence of fourteen years. Songer now appeals.
Discussion and Decision
Songer argues that his aggregate fourteen-year sentence is inappropriate in light of
the nature of the offense and the character of the offender. Although a trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of a
sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App.
2009) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218). This appellate authority is implemented through Indiana Appellate
Rule 7(B), which provides that a 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.”
Anglemyer, 868 N.E.2d at 491. However, “we must and should exercise deference to a
trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to persuade us that his
sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). Finally,
3 although we have the power to review and revise sentences, “[t]he principal role of
appellate 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).
“A person who commits a Class C felony shall be imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4) years.”
Ind. Code § 35-50-2-6 (2004). In this case, Songer committed two counts of Class C
felony burglary and was ordered to serve consecutive sentences of seven years on each
count, for an aggregate sentence of fourteen years.
Concerning the nature of the offense, we observe that Songer committed two
separate burglaries approximately two weeks apart.1 Additionally, the record reveals that
Songer’s acts were premeditated. Songer and Roberts drove from South Haven to
Valparaiso for the purpose of breaking into Mike’s Premier Grill to steal televisions.
Songer even had a buyer lined up for one of the televisions before committing the
burglary. Tr. p. 449. With regard to the burglary of the Road House Bar and Grill,
Songer and Roberts discussed breaking into the restaurant a day or two prior to the
1 Songer’s reliance on Indiana Code section 35-50-1-2 (2004), which prohibits the imposition of consecutive sentences for nonviolent offenses arising from a single episode of criminal conduct, is misplaced. Songer concedes that these burglaries did not arise out of a single episode of criminal conduct, but he relies on the statute “by analogy,” arguing that the crimes at issue here were “close to a single episode.” Appellant’s Br. at 8. We strongly disagree. Songer committed two separate burglaries, two weeks apart, with two separate victims. While Songer committed both offenses in a similar manner, this does not make the crimes analogous to offenses committed as part of a single episode of criminal conduct. See Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011) (reasoning that whether a series of crimes are related in some way is not the relevant question in determining whether offenses are part of a single episode of criminal conduct; rather, offenses are separate when a full account of each crime can be given without referring to the others), trans. denied.
4 burglary and, because they were aware that the restaurant had security cameras, they
bought ski masks to conceal their identities. Additionally, we reject Songer’s argument
that the burglaries were committed at a time “when it was clear no person would be
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Pursuant to Ind.Appellate Rule 65(D), 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:
BRYAN M. TRUITT GREGORY F. ZOELLER Bertig & Associates, LLC Attorney General of Indiana Valparaiso, Indiana ERIC P. BABBS
FILED Deputy Attorney General Indianapolis, Indiana Feb 08 2012, 9:59 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
JOE SONGER, JR., ) ) Appellant, ) ) vs. ) No. 64A03-1101-CR-41 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Mary R. Harper, Judge Cause No. 64D05-0912-FB-12217
February 8, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, J. Following a jury trial, Joe Songer, Jr. (“Songer”) was convicted in Porter Superior
Court of two counts of Class C felony burglary and sentenced to fourteen years executed
in the Department of Correction. Songer appeals and argues that his sentence is
inappropriate in light of the nature of the offense and the character of the offender. We
affirm.
Facts and Procedural History
On November 14, 2009, Songer and his friend Wade Roberts (“Roberts”) decided
to break into Mike’s Premier Grill in Valparaiso, Indiana to steal televisions. After the
restaurant had closed for the night, Roberts used a sledgehammer to break in the door,
and then he and Songer entered and stole two large flat screen televisions and between
$400 and $500 in cash. Thereafter, the two drove to Songer’s house, where they
unloaded one television and divided up the cash.
Approximately two weeks later, on Thursday, November 26, 2009—Thanksgiving
Day—Songer and Roberts decided to burglarize the Road House Bar and Grill, another
Valparaiso restaurant. Some time between 10:00 and 11:00 p.m., Songer and Roberts
drove to the restaurant. When they arrived, Roberts drove around and acted as a lookout
while Songer broke into the building. Once inside, Songer stole a handgun,
approximately two-dozen bottles of liquor, a computer, and between $4,000 and $5,000
in cash. Outside the building, Songer cut the cable and telephone lines, as well as the
power lines that supplied the restaurant’s security system. Songer then returned to the
vehicle, where he showed Roberts the handgun and gave him approximately $1,800.
2 As a result of these events, Songer was charged with two counts of Class C felony
burglary. A four-day jury trial commenced on October 25, 2010, at which Roberts
testified for the State. At the conclusion of the evidence, Songer was found guilty as
charged. The trial court sentenced Songer to seven years executed on each conviction to
run consecutively, for an aggregate sentence of fourteen years. Songer now appeals.
Discussion and Decision
Songer argues that his aggregate fourteen-year sentence is inappropriate in light of
the nature of the offense and the character of the offender. Although a trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of a
sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App.
2009) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g,
875 N.E.2d 218). This appellate authority is implemented through Indiana Appellate
Rule 7(B), which provides that a 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.”
Anglemyer, 868 N.E.2d at 491. However, “we must and should exercise deference to a
trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to persuade us that his
sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). Finally,
3 although we have the power to review and revise sentences, “[t]he principal role of
appellate 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).
“A person who commits a Class C felony shall be imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4) years.”
Ind. Code § 35-50-2-6 (2004). In this case, Songer committed two counts of Class C
felony burglary and was ordered to serve consecutive sentences of seven years on each
count, for an aggregate sentence of fourteen years.
Concerning the nature of the offense, we observe that Songer committed two
separate burglaries approximately two weeks apart.1 Additionally, the record reveals that
Songer’s acts were premeditated. Songer and Roberts drove from South Haven to
Valparaiso for the purpose of breaking into Mike’s Premier Grill to steal televisions.
Songer even had a buyer lined up for one of the televisions before committing the
burglary. Tr. p. 449. With regard to the burglary of the Road House Bar and Grill,
Songer and Roberts discussed breaking into the restaurant a day or two prior to the
1 Songer’s reliance on Indiana Code section 35-50-1-2 (2004), which prohibits the imposition of consecutive sentences for nonviolent offenses arising from a single episode of criminal conduct, is misplaced. Songer concedes that these burglaries did not arise out of a single episode of criminal conduct, but he relies on the statute “by analogy,” arguing that the crimes at issue here were “close to a single episode.” Appellant’s Br. at 8. We strongly disagree. Songer committed two separate burglaries, two weeks apart, with two separate victims. While Songer committed both offenses in a similar manner, this does not make the crimes analogous to offenses committed as part of a single episode of criminal conduct. See Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011) (reasoning that whether a series of crimes are related in some way is not the relevant question in determining whether offenses are part of a single episode of criminal conduct; rather, offenses are separate when a full account of each crime can be given without referring to the others), trans. denied.
4 burglary and, because they were aware that the restaurant had security cameras, they
bought ski masks to conceal their identities. Additionally, we reject Songer’s argument
that the burglaries were committed at a time “when it was clear no person would be
present,” thereby ensuring that there was “no chance” that Songer would encounter
anyone inside the buildings. Appellant’s Br. at 7. Although the restaurants were closed
at the time of the burglaries, it was by no means certain that no employees would be
present.
We are also unpersuaded by Songer’s attempts to minimize the harm suffered by
the victims. Contrary to Songer’s assertion on appeal, the losses sustained by the victims
were substantial. Songer stole two large flat screen televisions and between $400 and
$500 from Mike’s Premier Grill, and he stole between $4,000 and $5,000, a handgun, a
computer, and two-dozen bottles of liquor from the Road House Bar and Grill. Songer’s
assertion that he caused “very little physical damage” to the restaurants is similarly
unconvincing. Appellant’s Br. at 7. During the first burglary, the building’s electrical
meters were damaged. During the second burglary, Songer broke a window, ripped part
of the alarm system out of the wall, and cut the building’s utility lines.
With regard to the character of the offender, we note that Songer, who was twenty-
three years old at the time of sentencing, has a lengthy history of contact with the
criminal and juvenile justice systems. As an adult, Songer has been convicted of Class B
felony robbery, and his probation was revoked in that cause in 2008. Songer committed
the instant offenses while on parole, and within weeks of being released from jail. Tr. p.
20. Additionally, the presentence investigation report reveals that at the time of the
5 instant offenses, Songer had charges pending in Lake County for three counts of Class A
felony dealing in cocaine and one count of Class D felony dealing marijuana. Songer’s
history of juvenile delinquency includes adjudications for acts which, if committed by an
adult, would have been Class A misdemeanor carrying a handgun without a permit, Class
D felony possession of cocaine, Class A misdemeanor possession of marijuana, Class A
misdemeanor possession of cocaine, Class B misdemeanor public intoxication, and Class
A misdemeanor criminal trespass. We also note that during his incarceration pending
trial in this case, Songer received multiple conduct reports for violations of jail rules and
other alleged misconduct.
Songer argues that his criminal history “is in some part explainable by his
childhood and psychological profile.”2 Appellant’s Br. at 7. But the only evidence in the
record concerning Songer’s mental health is a psychological report from 2004, when he
was still a juvenile. Although the report indicates that Songer suffered from dysthymic
disorder, depressive disorder, and alcohol and cannabis dependence, the record is unclear
as to whether he still suffers from these disorders. To the extent that Songer argues that
his criminal behavior stems from a substance abuse problem, we note that Songer has
been offered various forms of substance abuse treatment, but he has never completed
treatment because he “did not like the class[es].” Appellant’s App. p. 35. In light of
Songer’s failure to follow through with treatment, we cannot say that his chemical
dependency lessens his culpability for the instant offenses. Cf. Bryant v. State, 802
2 In imposing its sentence, the trial court considered Songer’s ongoing substance abuse problems and troubled childhood as mitigating factors.
6 N.E.2d 486, 501 (Ind. Ct. App. 2004) (holding that the trial court did not err in finding
substance abuse as an aggravating factor where defendant was aware of his problem with
drugs and alcohol yet did not take any positive steps to treat his addiction). And while
we acknowledge that Songer had a troubled childhood characterized by multiple juvenile
adjudications and placements, we do not believe that this history reflects positively on his
character or mitigates his culpability for the instant offenses. To the contrary, Songer’s
juvenile history supports our conclusion that, despite being afforded multiple
opportunities for rehabilitation at a young age, Songer has continued to exhibit a pattern
of behavior evincing an unwillingness or inability to conform his behavior to the law.3
For all of these reasons, we cannot conclude that Songer’s fourteen-year executed
sentence is inappropriate in light of the nature of the offenses and the character of the
offender.
Affirmed.
FRIEDLANDER, J., and RILEY, J., concur.
3 Songer also complains that his sentence is significantly longer than that of Roberts, his accomplice in the burglaries at issue here. We are at a loss as to how Roberts’s sentence is relevant to our assessment of the nature of the offenses or Songer’s character. Nevertheless, we note that Roberts cooperated with law enforcement, took full responsibility for his actions by pleading guilty, and was sentenced in accordance with a plea agreement. It is therefore unsurprising that Roberts received a more lenient sentence than Songer.