Julius L. Sapp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 15, 2020
• Docket: 20A-CR-638
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 15 2020, 8:23 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Kelly M. Starling Attorney General of Indiana Indianapolis, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Julius Sapp, October 15, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-638 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Crawford, Appellee-Plaintiff. Judge The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G01-1907-F3-26746

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 1 of 9 STATEMENT OF THE CASE [1] Appellant-Defendant, Julius Sapp (Sapp), appeals his sentence following his

conviction for armed robbery, a Level 3 felony, Ind. Code § 35-42-5-1(a)(1); and

battery by means of a deadly weapon, a Level 5 felony, I.C. §§ 35-42-2-1(c)(1); -

(g)(2).

[2] We affirm.

ISSUE [3] Sapp presents the court with one issue, which we restate as: Whether the trial

court abused its discretion when it failed to identify certain proposed mitigating

circumstances.

FACTS AND PROCEDURAL HISTORY [4] On June 19, 2019, Sapp telephoned Sterling Riggs (Riggs) purportedly to

arrange for the purchase of $50 worth of marijuana. Riggs was not acquainted

with Sapp but agreed to sell him the marijuana. Around 7:30 p.m., Riggs drove

his van to an address Sapp provided to him at an apartment complex located on

the west side of Indianapolis. Riggs parked his van when he spotted Sapp.

Riggs had brought a firearm with him which he placed on his lap.

[5] Sapp climbed into the passenger-side seat of Riggs’ van. Another man

accompanying Sapp remained outside the van. Sapp pointed a gun at Riggs

and told Riggs he was there to rob him. Riggs and Sapp began to fight in the

van. Riggs eventually fired a shot at Sapp, and the physical fighting continued.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 2 of 9 Sapp was able to disarm Riggs. The man who had accompanied Sapp picked

up Riggs’ gun and shot him in the leg. Riggs and Sapp continued to fight, with

Sapp getting the upper hand and Riggs’ gun. Sapp threatened to kill Riggs if he

did not let him take the van. Riggs directed Sapp to take the van, but Sapp fired

additional shots at Riggs, wounding him in the leg, hip, and arm. Sapp then

fled in Riggs’ van.

[6] Riggs was taken to the hospital where he was treated for his injuries, including

a shattered leg bone. Riggs supplied investigators with the cellphone number

Sapp had used to arrange the marijuana deal, and the cellphone number was

quickly linked to Sapp. Riggs subsequently identified Sapp from a

photographic array. Sapp was located and interviewed by police. Initially, he

denied being at the scene of the offenses. After further questioning, Sapp

admitted he had been present but claimed that Riggs had pulled a gun on him

and that he had acted in self-defense.

[7] On July 9, 2019, the State filed an Information, charging Sapp with Level 3

felony armed robbery; Level 4 felony unlawful possession of a firearm by a

serious violent felon; and Level 5 felony battery by means of a deadly weapon.

On January 15, 2020, the trial court convened Sapp’s one-day jury trial. The

jury found Sapp guilty of all charges. After the jury had rendered its verdicts,

the trial court granted the State’s motion to dismiss the Level 4 felony

possession of a firearm by a serious violent felon charge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 3 of 9 [8] On February 4, 2020, Sapp’s presentence investigation report (PSI) was filed

with the trial court. In 2013, Sapp was convicted of Class B felony robbery, for

which he received a seven-year sentence, with 190 days executed and one year

suspended to probation. Sapp began his probation on September 26, 2016, and,

on March 20, 2017, the State filed a notice of violation of probation for failing

to submit to a drug screen, testing positive for cannabinoids, and failing to

comply with substance abuse treatment. Sapp’s probation was revoked, and

Sapp was sentenced to 180 days. After his release, Sapp was charged with

criminal trespass and marijuana possession in 2019, and was later convicted of

Class A misdemeanor possession of a controlled substance in a separate case.

[9] Sapp reported to his PSI investigator that he began consuming marijuana at the

age of thirteen and alcohol at the age of sixteen. By the time of his arrest on the

instant offense, Sapp reported that he was smoking marijuana daily and had

become addicted to “rollers,” which is a combination of cocaine,

methamphetamine, and ecstasy. (Appellant’s App. Vol. II, p. 146). Sapp

denied using heroin or prescription medications.

[10] Sapp’s PSI also revealed that he had never been in special education classes and

graduated from high school in 2010 with a 2.8 G.P.A. Sapp also played on his

high school’s basketball team. From the age of fifteen to nineteen, Sapp worked

in a fast food restaurant, and he continued to work in restaurants after he was

released from incarceration in 2018. Sapp rated his physical and mental health

as “fair.” (Appellant’s App. Vol. II, p. 146). Sapp reported being assaulted in

high school and having a seizure which resulted in his hospitalization. He was

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 4 of 9 treated and released after two days. Sapp also reported having anger

management issues and depression during high school, and he participated in

anger management counseling in 2007 or 2008. Sapp had never been

prescribed any medication for his mental health.

[11] On February 25, 2020, the trial court held Sapp’s sentencing hearing. Sapp

filed a sentencing memorandum prepared by a Social Services Administrator

employed by the Marion County Public Defender Agency in which Sapp’s

substance abuse disorder, remorse, traumatic brain injury, and undue hardship

to his children were advanced as mitigating circumstances. In the unverified

sentencing memorandum, it was represented to the trial court that Sapp had

been taking opioids daily and that he had experienced withdrawal in jail. The

sentencing memorandum also asserted that Sapp had experienced a traumatic

brain injury in 2006 and that such injuries may lead to aggressive behavior.

[12] At Sapp’s sentencing hearing, Riggs’ impact statement was read into the record.

To Riggs the offenses were “a life changing experience” which had left him

unable to walk without assistance, unable to work, and in constant pain.

(Transcript p. 240). Riggs faced another surgery to attempt to rectify the

injuries to his leg. In his allocution, Sapp apologized to Riggs and asked the

trial court for leniency. The trial court found as an aggravating circumstance

that Sapp had shot Riggs four times without justification, even when Riggs was

on the ground. The trial court also found Sapp’s criminal record since his

recent release from the Department of Correction to be aggravating, including

his two arrests, conviction for possession of a controlled substance, and his

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 5 of 9 separate pending case for unlawful possession of a firearm by a serious violent

felon. The trial court found as the sole mitigating circumstance that long-term

imprisonment would be a hardship to Sapp’s dependents. The trial court found

that the aggravating circumstances outweighed the mitigating circumstances

and sentenced Sapp to ten years, with one year suspended to probation, for his

Level 3 felony armed robbery conviction. The trial court sentenced Sapp to

three years for his Level 5 felony battery by means of a deadly weapon

conviction, to be served concurrently, for an aggregate sentence of ten years.

[13] Sapp now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standard of Review

[14] Sapp contends that the trial court abused its discretion when it failed to

recognize his additional proffered mitigators. So long as a sentence imposed by

a trial court is within the statutory range for the offense, it is subject to review

only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial

court’s sentencing discretion occurs if its decision is clearly against the logic and

effect of the facts and circumstances before the court, or the reasonable,

probable, and actual deductions to be drawn therefrom. Id. A trial court abuses

its discretion when it fails to enter a sentencing statement at all, its stated

reasons for imposing sentence are not supported by the record, its sentencing

statement omits reasons that are clearly supported by the record and advanced

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 6 of 9 for consideration, or its reasons for imposing sentence are improper as a matter

of law. Id. at 490-91.

II. Mitigating Circumstances

[15] Sapp contends that the trial court abused its discretion when it failed to

recognize his substance abuse, remorse, and traumatic brain injury as

mitigating circumstances. “An allegation that the trial court failed to identify or

find a mitigating factor requires the defendant to establish that the mitigating

evidence is both significant and clearly supported by the record.” Id. at 493.

However, if a trial court does not recognize a mitigating circumstance that was

advanced for its consideration, it is not obligated to explain why it did not

recognize the proffered mitigator. Id.

[16] Sapp argues that his long history of a “substance abuse disorder” consisting of

alcohol, marijuana, and opioid abuse was a mitigating circumstance improperly

overlooked by the trial court. (Appellant’s Br. p. 11). However, in his

sentencing memorandum and argument at the sentencing hearing, Sapp only

mentioned his alleged opioid abuse. In his PSI, Sapp explicitly “denied the use

of heroin and prescription medications.” (Appellant’s App. Vol. II, p. 147).

The only information before the trial court regarding Sapp’s alleged opioid

abuse were the unverified statements contained in his sentencing memorandum

and the argument of his counsel, which were not evidence. Therefore, Sapp’s

substance abuse, as argued at sentencing, was not clearly supported by the

record, and we cannot conclude that the trial court abused its discretion in

failing to recognize it as a mitigator. See Anglemyer, 868 N.E.2d at 493.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 7 of 9 [17] As to his expressions of remorse, it has long been established that the trial court

is in the best position to evaluate the importance of such evidence for

sentencing. See, e.g., Gibson v. State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006)

(“Remorse, or lack thereof, by a defendant often is something that is better

gauged by a trial judge who views and hears a defendant’s apology and

demeanor first hand and determines the defendant’s credibility.”). Like other

credibility determinations, absent some evidence of impermissible consideration

by the trial court, we do not reweigh a trial court’s assessment of a defendant’s

expressions of remorse. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Here,

the trial court heard Sapp’s allocution in which he expressed his remorse and

apologized to Riggs. The trial court was not persuaded, and we will not

second-guess its assessment. Id.

[18] Neither can we conclude that the trial court abused its discretion when it failed

to find Sapp’s traumatic brain injury as a mitigating circumstance. In his PSI

Sapp reported having experienced an injury and a seizure when he was in high

school, but he did not characterize it as a brain injury, traumatic or otherwise.

Again, the only references to a traumatic brain injury in the record were the

unverified statements contained in Sapp’s sentencing memorandum and the

argument of his counsel, neither of which were evidence. Therefore, this factor

was not clearly supported by the record, and the trial court did not abuse its

discretion in declining to find it as a mitigating circumstance. See Anglemyer,

868 N.E.2d at 493.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 8 of 9 [19] In addition, the mitigating weight accorded to a defendant’s mental impairment

depends on, among other things, how it limits a defendant’s overall functioning

and the extent of any nexus between the impairment and the commission of the

crime. Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010), trans. denied.

Here, Sapp who characterized his health as “fair,” reported graduating from

high school, fairly regular employment, and no need for medication, which

indicates that, even if it had been clearly established that he had a traumatic

brain injury, the injury did not significantly impact his overall functioning.

(Appellant’s App. Vol. II, p. 146). Sapp placed no actual evidence before the

trial court that a traumatic brain injury had anything to do with the commission

of the instant offense. Given the lack of evidence that his alleged traumatic

brain injury impacted his functioning or had a nexus with the offenses, the trial

court did not abuse its discretion in failing to find it significant for sentencing.

See id. (finding no abuse of the trial court’s sentencing discretion where Smith

failed to show his diminished mental capacity limited his ability to function or

had a nexus with the crime).

CONCLUSION [20] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it declined to accord mitigating weight to three of Sapp’s

proffered mitigators.

[21] Affirmed.

[22] May, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020 Page 9 of 9