Joshua Schaaf v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 18, 2016
• Docket: 85A04-1506-CR-796
• Status: Published

Opinion

FILED May 18 2016, 8:06 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel J. Vanderpool Gregory F. Zoeller Vanderpool Law Firm, PC Attorney General Warsaw, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Schaaf, May 18, 2016 Appellant-Defendant, Court of Appeals Case No. 85A04-1506-CR-796 v. Appeal from the Wabash Circuit Court State of Indiana, The Honorable Robert R. Appellee-Plaintiff McCallen, III, Judge Trial Court Cause No. 85C01-1407-FA-624

Vaidik, Chief Judge.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 1 of 10 Case Summary [1] Joshua Schaaf appeals his convictions and sentence for two counts of dealing

heroin. We conclude that the State presented sufficient evidence to support

Schaaf’s convictions. However, we find that his forty-year sentence is

inappropriate in light of the nature of his offenses. Therefore, we remand this

matter to the trial court with instructions to impose a sentence of thirty years.

Facts and Procedural History [2] The basic facts are undisputed. The charges against Schaaf arose from his role

in two controlled drug buys. In April 2014, Schaaf drove Randall Conliff to a

gas station, where a confidential informant entered Schaaf’s pickup and, while

Schaaf looked on, gave Conliff $50.00 in exchange for 10/100ths of a gram of

heroin. Based on that transaction, the State charged Schaaf with dealing in a

narcotic drug as a Class B felony (Count I). See Ind. Code Ann. § 35-48-4-

1(a)(1) (West 2012). The next month, the same confidential informant went to

Conliff’s house to buy more heroin from Conliff. However, Conliff turned him

away, and he ended up buying 8/100ths of a gram of heroin for $50.00 from

Schaaf, who also happened to be present. Because Conliff’s house was within

1000 feet of a public park (actually, two public parks), the dealing charge for

this second transaction was enhanced to a Class A felony (Count II). See id. at

(b)(3)(B)(ii). A jury found Schaaf guilty on both counts.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 2 of 10 [3] In sentencing Schaaf, the trial court found no mitigating circumstances but

three aggravating circumstances: (1) Schaaf’s criminal history; (2) the fact that

a seventeen- or eighteen-year-old male (possibly Conliff’s cousin) was present

during the second transaction; and (3) the fact that Schaaf had not succeeded on

probation in the past. The trial court imposed sentences of fifteen years on

Count I and forty years on Count II and ordered them to run concurrently, for a

total sentence of forty years.

Discussion and Decision [4] Schaaf argues that the evidence is insufficient to support his two convictions.

He also contends that, even if his convictions stand, his sentence is

inappropriate.

I. Sufficiency of the Evidence [5] In reviewing the sufficiency of the evidence supporting a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Wilson v. State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied.

We do not reweigh the evidence or assess witness credibility. Id. We consider

conflicting evidence most favorably to the verdict. Id. We will affirm the

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence. Id. The evidence is

sufficient if an inference may reasonably be drawn from it to support the

verdict. Id. Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 3 of 10 A. Count I (First Transaction) [6] Schaaf asserts that the State failed to prove he was anything more than a

bystander with regard to the first transaction and that we must therefore reverse

his conviction on Count I. In response, the State concedes that Schaaf did not

personally deliver the heroin to the confidential informant, but it contends that

it presented sufficient evidence for the jury to find Schaaf guilty as Conliff’s

accomplice. We agree with the State.

[7] Indiana’s accomplice-liability statute provides, in part, “A person who

knowingly or intentionally aids, induces, or causes another person to commit

an offense commits that offense[.]” Ind. Code § 35-41-2-4. Under this statute,

an individual who aids another person in committing a crime is as guilty as the

actual perpetrator. Specht v. State, 838 N.E.2d 1081, 1093 (Ind. Ct. App. 2005),

trans. denied. The statute does not set forth a separate crime, but merely

provides a separate basis of liability for the crime that is charged. Id. at 1092.

That is, a person can be charged as a principal and convicted as an accomplice.

Id.

[8] Furthermore, a person can be convicted as an accomplice even if he did not

participate in each and every element of the crime. Id. at 1093. Our Supreme

Court has identified four factors that can be considered by the fact-finder in

determining whether a defendant aided another in the commission of a crime:

(1) presence at the scene of the crime; (2) companionship with another engaged

in a crime; (3) failure to oppose the commission of the crime; and (4) the course

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 4 of 10 of conduct before, during, and after the occurrence of the crime. Wieland v.

State, 736 N.E.2d 1198, 1202 (Ind. 2000). Here, all four factors weigh heavily

in favor of Schaaf’s guilt on Count I.

[9] It is undisputed that Schaaf was present at the scene of the crime, that he and

Conliff were companions who spent significant time together, and that he failed

to oppose the crime. Most probative, though, is Schaaf’s conduct before and

during the crime. Conliff called the confidential informant shortly before they

were supposed to meet, told him that he was with Schaaf, and proposed that

they meet at Schaaf’s house. Hearing this, Schaaf interjected and suggested that

the meeting happen at a particular gas station. Conliff and the confidential

informant agreed, and Schaaf took Confliff to the gas station. Upon arrival,

Schaaf allowed the confidential informant into his pickup and sat calmly as

Conliff and the informant completed the exchange. While Schaaf did not

participate in the actual exchange, he brought the two participants together and

provided them with a place to conduct their business.

[10] In challenging the sufficiency of the evidence on Count I, Schaaf relies

exclusively on his own testimony. Specifically, Schaaf testified that he thought

he and Conliff were just going somewhere to get high and that he did not know

Conliff was planning to sell heroin to the person they were meeting along the

way. However, the jury clearly did not believe Schaaf, and we will not second

guess that credibility determination or otherwise reweigh the evidence. Wilson,

39 N.E.3d at 716. We affirm Schaaf’s conviction on Count I.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 5 of 10 B. Count II (Second Transaction) [11] With regard to Count II, Schaaf does not deny that there is evidence that he

sold heroin to the confidential informant or that the transaction occurred within

1000 feet of a public park. Rather, he contends that the enhancement from a

Class B felony to a Class A felony based on the proximity to the park should be

vacated because the State did not prove that he knew he was within 1000 feet of

a public park.

[12] Schaaf acknowledges that our Supreme Court held in Walker v. State that

proximity to a particular location during a drug deal is a strict-liability element,

meaning that the defendant need not be aware of the proximity. 668 N.E.2d

243, 244-45 (Ind. 1996) (addressing enhancement based on proximity to

school); see also Whatley v. State, 928 N.E.2d 202, 205 (Ind. 2010) (“In Walker,

we held that presence in a school-zone was a strict-liability element.”).

However, he asks that we “reexamine” the holding in Walker in light of the

2014 amendments to Indiana’s criminal code, which he says established a

knowledge requirement for the proximity enhancements applicable. See, e.g.,

Pub. L. 158-2013, § 622 (eff. July 1, 2014); Pub. L. 168-2014, § 91 (eff. July 1,

2014); Pub. L. 226-2014(ts), § 6 (eff. July 1, 2014); Pub. L. 44-2016, § 2 (eff.

July 1, 2016). But even if Schaaf is correct about the effect of the amendments

(an issue we do not reach), those amendments did not go into effect until July 1,

2014, nearly two months after Schaaf’s offense. Therefore, the State properly

charged Schaaf under the pre-amendment version of Indiana Code section 35-

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 6 of 10 48-4-1, and Walker controls our resolution of Schaaf’s claim. We affirm his

conviction on Count II.1

II. Sentence [13] Schaaf argues that even if we affirm his convictions, we should reduce his

sentence pursuant to Indiana Appellate Rule 7(B), which provides that an

appellate 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.” Because we generally defer to the judgment of trial courts in

sentencing matters, Norris v. State, 27 N.E.3d 333, 335-36 (Ind. Ct. App. 2015),

defendants have the burden of persuading us that their sentences are

inappropriate, Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).

“Whether a sentence is inappropriate ultimately turns on the culpability of the

defendant, the severity of the crime, the damage done to others, and a myriad

of other factors that come to light in a given case.” Id. (citing Cardwell v. State,

895 N.E.2d 1219, 1224 (Ind. 2008)).

[14] On Count I, a Class B felony, Schaaf faced a sentencing range of six to twenty

years, with an advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5(a)

(West 2012). The trial court imposed a sentence of fifteen years. On Count II,

1 To the extent that Schaaf asks us to overrule our Supreme Court’s holding in Walker, we cannot do so. See, e.g., Candler v. State, 837 N.E.2d 1100, 1105 n.6 (Ind. Ct. App. 2005) (“[W]e are bound by our Supreme Court’s decisions[.]”), reh’g denied.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 7 of 10 a Class A felony, Schaaf faced a range of twenty to fifty years, with an advisory

sentence of thirty years. Ind. Code Ann. § 35-50-2-4(a) (West 2012). The trial

court imposed a sentence of forty years, to run concurrently with the fifteen

years on Count I.2

[15] We agree with the trial court that Schaaf’s criminal history, which includes six

felonies and six misdemeanors, is a significant aggravating circumstance.

However, his offenses in this case were relatively minor as drug deals go: both

sales were to a confidential informant, both were monitored by law

enforcement, and both involved very small amounts of heroin. In addition,

Schaaf did not personally deliver the drugs in the first transaction, and the

second transaction was not the result of active solicitation by Schaaf but of a

failed police operation targeted at Conliff. We conclude that while Schaaf’s

criminal history would make below-advisory sentences inappropriately lenient,

the nature of his offenses renders his above-advisory sentences inappropriately

harsh. Therefore, we remand this matter to the trial court with instructions to

impose advisory sentences of ten years on Count I and thirty years on Count II

2 As noted above, on July 1, 2014, less than three months after Schaaf committed his offenses, significant amendments to Indiana’s drug laws went in to effect. See Pub. L. 158-2013; Pub. L. 168-2014; Pub. L. 217- 2014; Pub. L. 226-2014(ts). If Schaaf had committed his offenses on or after that date, Count I would have been a Level 5 felony subject to a sentencing range of one to six years, and Count II would have been a Level 4 felony subject to a sentencing range of two to twelve years. See Ind. Code § 35-50-2-6(b) (“A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.”); Ind. Code § 35-50-2-5.5 (“A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.”). However, our legislature enacted savings clauses that specifically prohibit courts from taking the statutory changes into consideration when addressing offenses committed before July 1, 2014. See Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (citing Ind. Code §§ 1-1-5.5-21 and -22), trans. denied.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 8 of 10 and to run the two sentences concurrently, for a total sentence of thirty years.

Cf. Norris, 27 N.E.3d at 336 (reducing twenty-year sentence to twelve years with

four suspended where defendant “sold ten hydrocodone tablets for $60 to a

confidential informant during a controlled buy that was closely monitored by

the police”).

[16] Affirmed in part and reversed and remanded in part.

Barnes, J., concurs.

Mathias, J., concurs in part and dissents in part in a separate opinion.

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 9 of 10 IN THE COURT OF APPEALS OF INDIANA

Joshua Schaaf, Court of Appeals Case No. 85A04-1506-CR-796 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Mathias, Judge, concurring in part and dissenting in part

[17] I agree that Schaaf’s convictions are supported by sufficient evidence. However,

with all due and great respect for my colleagues, I respectfully dissent with

regard to the majority’s decision to revise Schaaf’s sentence. The forty-year

sentence imposed was less than the maximum, and giving due deference to the

trial court, I believe the sentence was not inappropriate in light of the offender’s

character. Ind. App. R. 7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007).

Court of Appeals of Indiana | Opinion 85A04-1506-CR-796 | May 18, 2016 Page 10 of 10