Justin Dennis Altwein v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2018
• Docket: 18A-CR-243
• 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 Jun 26 2018, 8:46 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Dennis Altwein, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-243 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Steven P. Meyer, Judge Trial Court Cause No. 79D02-1707-F5-81

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 1 of 9 [1] Justin Dennis Altwein (“Altwein”) pled guilty to carrying a handgun without a

license,1 as a Level 5 felony, and resisting law enforcement,2 as a Class A

misdemeanor. He was sentenced to four years in the Indiana Department of

Correction (“the DOC”) for carrying a handgun without a license and one year

in the DOC for resisting law enforcement. The sentences were ordered to run

consecutive to each other for a total of five years, and two years were suspended

to probation, resulting in an executed three-year sentence.

[2] Altwein appeals and raises the following restated issues for our review:

I. Whether the trial court erred when it ordered Altwein to serve his sentence for Class A misdemeanor resisting law enforcement in the DOC; and

II. Whether Altwein’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

[3] We affirm and remand with instructions.

Facts and Procedural History [4] On July 6, 2017, at approximately 10:15 a.m., the Indiana State Police received

a call from dispatch that a male driver in a white car with Wisconsin license

plates had pointed a handgun at another driver while traveling southbound near

mile marker 200 on Interstate 65 in Tippecanoe County, Indiana. Appellant’s

11 See Ind. Code § 35-47-2-1(a), (e). 2 See Ind. Code § 35-44.1-3-1(a).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 2 of 9 App. Vol. II at 48. Indiana State Police Troopers Hampton and McCormick

responded to the dispatch. After observing a vehicle matching that description

exit the interstate near mile marker 178, Trooper Hampton conducted a traffic

stop of the vehicle.

[5] The driver, later identified as Altwein, exited his vehicle and ran into the nearby

woods. The Troopers ordered Altwein to stop, but he ignored these

commands. After Altwein was eventually apprehended, he continued to resist

the Troopers by pulling his arms away as they attempted to detain him. The

Troopers asked Altwein if there were any weapons in the vehicle, and he

informed the Troopers that there was a rifle that belonged to his girlfriend

inside the car, but denied that any handguns were in the vehicle. Id. The

Troopers later observed and seized a loaded handgun from inside the vehicle.

Id. They ran a records check on the handgun, which showed that it was

reported stolen in Wisconsin. Id. The Troopers also spoke to a female

passenger in Altwein’s vehicle, who told them that she had seen Altwein

holding the handgun earlier that day. Id.

[6] On July 17, 2017, the State charged Altwein with Count I, carrying a handgun

without a license, as a Level 5 felony; Count II, theft of a firearm, a Level 6

felony; Count III, resisting a law enforcement, as a Class A misdemeanor;

Count IV, resisting law enforcement, as a Class A misdemeanor; and Count V,

carrying a handgun without a license, as a Class A misdemeanor. On

November 17, 2017, Altwein pleaded guilty to Level 5 felony carrying a

handgun without a license and Class A misdemeanor resisting law

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 3 of 9 enforcement. Id. at 26-28. The remaining counts were dismissed, and

sentencing was left to the discretion of the trial court. Id.

[7] At the sentencing hearing, the trial court stated that the “overall seriousness of

this offense is very troubling” because Altwein was in possession of a firearm,

which he was not allowed to do and was aware of this prohibition. Tr. Vol. 2 at

37. The trial court also noted that Altwein lied to police about possessing the

handgun and that he attempted to flee from police on foot. Id. The trial court

focused on the facts that this incident occurred on the interstate, Altwein was

traveling at fast speeds, and Altwein admitted that this offense stemmed from

use of illegal substances. Id. The trial court also noted that Altwein had failed

to address his mental health and substance abuse issues despite having previous

opportunities to do so and expressed concern about Altwein continually getting

into more serious trouble involving firearms. Id. at 38. The trial court

sentenced Altwein to four years in the DOC for his carrying a handgun without

a license conviction and one year in the DOC for his resisting law enforcement

conviction to be served consecutively for a total of five years; the trial court

suspended two years to probation and order the remaining three years to be

executed in the DOC. Appellant’s App. Vol. II at 13-16. Altwein now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 4 of 9 Discussion and Decision

I. Imposition of DOC Sentence on Misdemeanor Conviction [8] Altwein argues that the trial court erred when it imposed a DOC sentence upon

his one-year sentence for his conviction for Class A misdemeanor resisting law

enforcement. We agree. Generally, a person convicted of a misdemeanor may

not be committed to the DOC. Ind. Code § 35-38-3-3(a). The exceptions to

this rule are: (1) if placement in the county jail places the inmate in danger or

poses a risk to others; (2) for other good cause shown; or (3) if the person has

more than 547 days remaining before the person’s earliest release date as a

result of consecutive misdemeanor sentences or a sentencing enhancement

applied to a misdemeanor sentence. I.C. § 35-38-3-3(b). In the present case,

none of these exceptions were cited by the trial court in its sentencing order.

Appellant’s App. Vol. II at 13-16. A trial court can only order sentences

authorized by statute and permissible under the Indiana Constitution regardless

of the presence of aggravating or mitigating factors. I.C. § 35-38-1-7.1(d). We,

therefore, conclude that it was error for the trial court to state in the sentencing

order that Altwein was sentenced to the DOC for one year for his Class A

misdemeanor conviction for resisting law enforcement. We remand to the trial

court to vacate the trial court’s reference to the DOC in relation to Altwein’s

Class A misdemeanor conviction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 5 of 9 II. Inappropriate Sentence [9] Pursuant to Indiana Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the

principal role of appellate review should be to attempt to leaven the outliers, not

to achieve a perceived correct result in each case. Brown v. State, 52 N.E.3d 945,

954 (Ind. Ct. App. 2016) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008)), trans. denied. We independently examine the nature of a defendant’s

offenses and his character under Appellate Rule 7(B) with substantial deference

to the trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).

“In conducting our review, we do not look to see whether the defendant’s

sentence is appropriate or if another sentence might be more appropriate;

rather, the test is whether the sentence is ‘inappropriate.’” Barker v. State, 994

N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. The defendant bears the

burden of persuading us that his sentence is inappropriate. Brown, 52 N.E.3d at

954.

[10] Altwein contends that his aggregate five-year sentence with two years

suspended to probation is inappropriate in light of the nature of the offense and

his character. Specifically, he asserts that, as to the nature of his offense, some

degree of criminal history was “already embodied in the offense of carrying a

handgun without a license as charged . . . because the crime was elevated . . . by

reason of Altwein having been convicted of a felony within fifteen years.”

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 6 of 9 Appellant’s Br. at 7. Altwein further contends that his sentence was

inappropriate in light of his character because he pleaded guilty, his criminal

history only contained one prior felony and misdemeanors that occurred when

he was eighteen years old, and he has mental health issues that played a role in

why he ran away and resisted the police.

[11] “As to the nature of the offense, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed.”

Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). In the present case,

Altwein was convicted of one Level 5 felony and one Class A misdemeanor.

The advisory sentence for a Level 5 felony is three years, with a range of

between one and six years. I.C. § 35-50-2-6(b). A person who commits a Class

A misdemeanor shall be imprisoned for a fixed term of not more than one year.

I.C. § 35-50-3-2.

[12] The nature of the offense is found in the details and circumstances of the

commission of the offense and the defendant’s participation. Croy v. State, 953

N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, the nature of Altwein’s offense is

that he was found to be in possession of a handgun, which he was not allowed

to possess because he did not have a license and because he had prior felonies,

and when he was stopped by the police, he fled into the nearby woods. When

he was eventually caught by the police, he continued to resist by pulling his

arms away from the police. As the trial court noted during sentencing, offenses

involving firearms, especially by people who are not supposed to possess them,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 7 of 9 should be taken very seriously because firearms are very dangerous weapons.

Tr. Vol. 2 at 36-37.

[13] “The character of the offender is found in what we learn of the offender’s life

and conduct.” Croy, 953 N.E.2d at 664. Altwein has a lengthy criminal record

that includes juvenile offenses, felonies, and misdemeanors. Several of his

convictions consist of crimes similar to the present offense: he was previously

convicted of delinquent possession of a firearm, theft of movable property,

criminal damage to property, malicious destruction of a building, and assault

with a dangerous weapon. Appellant’s App. Vol. II at 56-58. Altwein has a

previous probation violation, which was found to be true, and he had a pending

case in Wisconsin at the time he was arrested and convicted of the present

crimes. Altwein’s criminal history shows that prior punishments and leniency

have not deterred him from committing further similar crimes, which shows

poor character. Although Altwein did plead guilty and does have mental health

issues, the trial court noted that he received a benefit from pleading guilty

because some of his charges were dismissed and that he had been given

previous opportunities to address his mental health issues, which have failed.

Tr. Vol. 2 at 37-38. Additionally, the trial court also made reference to the fact

that Altwein demonstrated an “attitude problem” when interviewed for the pre-

sentence investigation report, which the trial court took under consideration.

Id. at 38-39. Based on the nature of the offense and the character of the

offender, we conclude that Altwein’s sentence is not inappropriate under

Appellate Rule 7(B).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 8 of 9 [14] Affirmed and remanded with instructions.

Baker, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-243 | June 26, 2018 Page 9 of 9