Mark D. Priest v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 15, 2016
• Docket: 02A03-1601-CR-118
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 15 2016, 10:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randy M. Fisher Gregory F. Zoeller Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark D. Priest, July 15, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1601-CR-118 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1509-F6-833

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 1 of 9 Statement of the Case [1] Mark Priest (“Priest”) appeals the sentence imposed following his convictions

for Level 6 felony residential entry,1 Class B misdemeanor criminal mischief,2

and Class B misdemeanor battery.3 He specifically contends that (1) the trial

court abused its discretion by failing to consider his proposed mitigating factors;

and (2) the two and one-half-year sentence imposed for his Level 6 felony

residential entry conviction is inappropriate in light of the nature of the offense

and his character. Because we conclude that the trial court did not abuse its

discretion in failing to consider Priest’s proposed mitigating circumstances and

that his sentence is not inappropriate, we affirm.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion in failing to consider Priest’s proposed mitigating factors.

2. Whether Priest’s sentence is inappropriate in light of the nature of the offense and his character.

1 IND. CODE § 35-43-2-1.5. 2 I.C. § 35-43-1-2. 3 I.C. § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 2 of 9 Facts [3] On September 2, 2015, Karrie Packer (“Packer”) was in the leasing office of her

new apartment complex when she met Priest, a forty-six-year-old maintenance

worker. Packer asked Priest to help her move boxes into her apartment, and

Priest told her he could help her after he had finished his work day. Later that

afternoon, Priest helped Packer with her boxes, and Packer offered to cook him

dinner in return for his help. Packer subsequently told Priest that she “was still

working on [her] walk with God and that [she planned] on going back to

church.” (Tr. 94). Priest respond that he was a “dark angel on the other side

against God, and that he was not really a human that he was a spirit.” (Tr. 94).

Priest’s comments made Packer feel “fearful and offended,” and she asked

Priest to leave. (Tr. 97). An angry Priest grabbed his phone and told Packer

that she did not know who he was and what he could do.

[4] Packer went to sleep about 8:30 p.m. She was awakened three hours later when

Priest busted down her front door, ran towards her bed, and jumped on top of

her. As he landed on the bed, Priest told Packer that she was “going to meet

God tonight.” (Tr. 103). Packer, fearful that she was going to lose her life,

apologized to Priest for asking him to leave earlier that night and told him that

they should be together. When Priest relaxed and moved off Packer, she was

able to run outside to the parking lot and scream for help. Bystanders

telephoned the police.

[5] Fort Wayne Police Department Officers Lisa Woods and Christopher Reed

were dispatched to the scene. They found Priest inside Packer’s apartment. His Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 3 of 9 pants were unzipped and partially pulled down, and he had bloodshot eyes,

slurred speech, and the odor of alcohol on his breath. After the officers had

taken Priest to the police department for an interview, Packer returned to her

apartment to find broken dishes and a hole in the kitchen wall. She also

realized that a bracelet was missing. Police officers later noticed that Priest was

wearing the missing bracelet.

[6] Priest was subsequently convicted in a jury trial of Level 6 felony residential

entry, Class B misdemeanor criminal mischief, and Class B misdemeanor

battery. Evidence presented at the sentencing hearing revealed that Priest had

six prior misdemeanor convictions, including convictions for operating while

suspended, public intoxication, reckless driving, operating a motor vehicle

while intoxicated, and invasion of privacy. Priest also had four prior felony

convictions, including convictions for operating a motor vehicle while

intoxicated with a prior conviction and failure to appear. In addition, he had

had two probation revocations and one parole violation, and, at the time he

committed the offenses in this case, he was on probation for one offense and

parole for another offense. At the time of sentencing, Priest was also wanted on

an active warrant in another county. The evidence further revealed that he had

three children, two of whom were adults and one of whom was an eighteen-

year-old dependent child. In addition, Priest was $5,000 in arrears on child

support. Lastly, Priest told the trial court that he had a twenty-eight-year work

history and that he was capable of full-time work.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 4 of 9 [7] At the end of the sentencing hearing, the trial court sentenced Priest to two and

one-half years (2½) for the Level 6 felony and one hundred and eighty (180)

days for each Class B misdemeanor. The trial court further ordered the

sentences to run concurrently to each other for a total executed sentence of two

and one-half (2½) years. Priest now appeals his sentence.

Decision [8] Priest argues that (1) the trial court abused its discretion by failing to consider

his proposed mitigating factors; and (2) the two and one-half year sentence

imposed for his Level 6 felony residential entry conviction is inappropriate in

light of the nature of the offense and his character. We address each of his

contentions in turn.

1. Abuse of Discretion

[9] Sentencing decisions are within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218. However, a trial court may be found to have abused its sentencing

discretion in a number of ways, including: (1) failing to enter a sentencing

statement; (2) entering a sentencing statement that explains reasons for

imposing a sentence where the record does not support the reasons; (3) entering

a sentencing statement that omits reasons that are clearly supported by the

record and advanced for consideration; and (4) entering a sentencing statement

in which the reasons given are improper as a matter of law. Id. at 491. The

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 5 of 9 weight given to those reasons, i.e., to particular aggravators or mitigators, is not

subject to appellate review. Id.

[10] Priest argues that the trial court abused its discretion because it did not find his

twenty-eight-year work history, his history of substance abuse, and the hardship

to his dependent child to be mitigating factors. A trial court is not obligated to

accept a defendant’s claim as to what constitutes a mitigating circumstance.

Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court

failed to find a mitigating circumstance requires the defendant to establish that

the mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493.

[11] Priest first contends that the trial court erred because it failed to find that his

“twenty-eight (28) year work history” was a mitigating factor. (Sentencing Tr.

12). However, this Court has previously held that the trial court did not abuse

its discretion in failing to find that employment was a significant mitigating

factor where the defendant failed to provide a detailed work history,

performance reviews, or attendance records. See Bennett v. State, 787 N.E.2d

938, 948 (Ind. Ct. App. 2003), trans. denied. Priest has also failed to provide

such information. Rather, as the State points out, the only work history

available to the trial court was information in the presentence investigation

report, which indicates that Priest’s first job was in 2010 and that he quit one

job and lost two others when he was incarcerated. The trial court did not abuse

its discretion in failing to find that Priest’s work history was a mitigating factor.

See id.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 6 of 9 [12] Priest also contends that the trial court abused its discretion because it failed to

find that his substance abuse was a mitigating factor. However, a trial court is

not required to consider a defendant’s substance abuse as a mitigating factor.

James v. State, 643 N.E.2d 321, 323 (Ind. 1994). In fact, substance abuse may be

considered an aggravating factor where the defendant is aware of a substance

abuse problem but has not taken appropriate steps to treat it. See Caraway v.

State, 959 N.E.2d 847, 852 (Ind. Ct. App. 2011), trans. denied. Here, our review

of the evidence reveals that Priest has a twenty-two-year history of committing

both misdemeanors and felonies while intoxicated. We agree with the State

that Priest “had to have been aware of his substance abuse issues after this

string of intoxication-related convictions and orders to get substance abuse

treatment. He failed in all of these efforts.” (State’s Br. 16). The trial court did

not abuse its discretion in failing to recognize Priest’s substance abuse as a

significant mitigating factor.

[13] Last, Priest argues that the trial court erred in failing to find the hardship to his

dependent eighteen-year-old child as a mitigating factor. A trial court is not

required to find that a defendant’s incarceration would result in undue hardship

to his dependents. Davis v. State, 835 N.E.2d 1102, 1116 (Ind. Ct. App. 2005),

trans. denied. Indeed, many defendants have one or more children, and absent

special circumstances, trial court are not required to find that imprisonment will

result in an undue hardship. Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.

1999). Here, Priest has failed to allege special circumstances causing undue

hardship to his eighteen-year-old child. Further, Priest’s $5,000.00 child

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 7 of 9 support arrearage reveals that he has not even been supporting this child.

Under these circumstances, the trial court did not abuse its discretion in failing

to find hardship to Priest’s child as a mitigating factor.

2. Inappropriate Sentence

[14] Priest argues that his two and one-half year sentence for his Level 6 felony

residential entry conviction is inappropriate. Indiana Appellate Rule 7(B)

provides that we may 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. The defendant bears the burden of persuading this Court that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Whether we regard a sentence as inappropriate 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.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008).

[15] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence is the starting point the Legislature has selected as an

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

Here, Priest was convicted of Level 6 felony residential entry. The sentencing

range for a Level 6 felony is between six months and two and one-half years,

with an advisory sentence of one year. I.C. § 35-50-2-7. Priest is correct that the

trial court sentenced him to the maximum sentence for the Level 6 felony.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 8 of 9 [16] With regard to the nature of the offense, an intoxicated Priest busted down the

front door of Packer’s apartment in the middle of the night, jumped on her

while she was in bed sleeping, and scared her to the point that she believed she

was going to be killed. After she left the apartment, Priest broke items and

busted a hole in her kitchen wall.

[17] With regard to his character, Priest has six prior misdemeanor convictions,

including convictions for operating while suspended, public intoxication,

reckless driving, operating a motor vehicle while intoxicated, and invasion of

privacy. He also has four prior felony convictions, including convictions for

operating a motor vehicle while intoxicated with a prior conviction and failure

to appear. In addition, he has had two probation revocations and one parole

violation, and at the time he committed the offenses in this case, he was on

probation for one offense and parole for another offense. Additionally, at the

time of sentencing in this case, there was an outstanding warrant on a third

offense. Clearly, Priest’s former contacts with the law have not caused him to

reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App.

2009), trans. denied. Based on the nature of the offense and his character, Priest

has failed to persuade this Court that his two and one-half-year sentence for

Level 6 felony residential entry is inappropriate.

[18] Affirmed.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-118 | July 15, 2016 Page 9 of 9