Michael Sprague v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 16, 2016
• Docket: 64A03-1604-CR-756
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 16 2016, 8:30 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Gregory F. Zoeller Harper & Harper, LLC Attorney General of Indiana Valparaiso, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Sprague, September 16, 2016 Appellant-Defendant, Court of Appeals Case No. 64A03-1604-CR-756 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Roger V. Bradford, Appellee-Plaintiff. Judge Trial Court Cause No. 64D01-1208-FA-8168

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 1 of 10 Case Summary [1] Michael Sprague appeals his forty-year sentence for Class A felony aiding in

burglary. We affirm.

Issues [2] Sprague raises two issues, which we restate as:

I. whether the trial court abused its discretion in sentencing Sprague; and

II. whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

Facts [3] On August 8, 2012, Dominick Fazzini, Jordan Wilkerson, and Shawn Duffy

forced their way into the residence of Cheri Baruch in Valparaiso. Sprague had

driven the men to the residence, and he waited in the car. Wilkerson knocked

Baruch to the ground, held her down, and beat her head against the floor.

Duffy and Fazzini were armed with guns and made her open a safe. The men

took guns and cash from the safe. They also ripped Baruch’s shirt off and

ordered her to put on another shirt.

[4] Sprague, who was still waiting outside of the residence, saw a neighbor

approaching and warned the other men. They left the residence with Sprague

driving, and the neighbor followed them. The neighbor chased them on U.S.

30, and Sprague crashed the vehicle at an intersection. When the neighbor also

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 2 of 10 stopped and pointed a gun at one of the men, the man shot the neighbor in the

hand. An FBI agent who witnessed the crash exchanged gunfire with Duffy,

and Duffy shot himself in the head and died. Sprague, Wilkerson, and Fazzini

were all apprehended.

[5] The State charged Sprague with Class A felony aiding in burglary, Class B

felony aiding in robbery, and Class B felony aiding in criminal confinement.

Sprague pled guilty to Class A felony aiding in burglary, and the State

dismissed the remaining charges. The plea agreement capped his sentence at

forty years. The trial court found Sprague’s remorse and acceptance of

responsibility by pleading guilty to be mitigators. The trial court found the

following aggravators—Sprague’s history of criminal activity, the fact that the

harm suffered by the victim was far greater than the harm necessary to prove

the elements of the offense, and the fact that Sprague was responsible for danger

to the community by engaging in a high-speed chase. The trial court concluded

that the aggravators outweighed the mitigators and sentenced Sprague to forty

years in the Department of Correction with five years suspended to probation.

Sprague now appeals.

Analysis I. Sentencing

[6] Sprague argues that the trial court abused its discretion when it sentenced him.

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

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 3 of 10 218. 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 at all; (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 490-91. The

reasons or omission of reasons given for choosing a sentence are reviewable on

appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.

[7] Sprague first argues that the trial court abused its discretion by failing to enter a

sentencing statement that explains the reasons for the sentence imposed. A

sentencing statement “must include a reasonably detailed recitation of the trial

court’s reasons for imposing a particular sentence.” Id. at 490. Sprague

describes the sentencing statement as “barebones” and argues that the trial

court failed to explain how Baruch’s injuries were greater than those necessary

to prove the offense and how the aggravating factors outweighed the mitigating

factors. Appellant’s Br. p. 17.

[8] The trial court here discussed each of the aggravators and mitigators, stated that

the aggravators outweighed the mitigators, and explained that it was adding ten

years to the advisory sentence. Although the sentencing statement may not

have been extremely lengthy, it was not required to be. Our review of the

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 4 of 10 sentencing statement reveals that it was adequate and included a reasonably

detailed recitation of the reasons for imposing the sentence.

[9] Next, Sprague argues that the trial court abused its discretion by finding the

victim’s injuries as an aggravator. Indiana Code Section 35-38-1-7.1(a)(1) notes

that the trial court may consider harm, injury, loss, or damage suffered by the

victim that was significant and greater than the elements necessary to prove the

commission of the offense. The Class A felony burglary conviction required

proof of bodily injury to Baruch. Bodily injury is defined as “any impairment

of physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. The

trial court found that “the harm suffered by this victim was far greater than the

harm necessary to prove the elements of the offense.” Tr. p. 29. The trial court

noted “there was well beyond mere bodily injury to the victim.” Id. at 30. The

probable cause affidavit indicates that Baruch had injuries to her head, knee,

and back as a result of the beating during the burglary. Baruch’s victim’s

statement, which was read during the sentencing hearing, made it clear that she

was severely traumatized by the incident and had constant nightmares. Given

the multiple injuries and severe emotional trauma sustained by the victim, we

cannot say that the trial court abused its discretion by considering this

aggravator.

[10] Sprague also disputes the trial court’s use of danger to the community as a

result of the vehicle chase as an aggravator. The trial court noted that Sprague

was “responsible for . . . the danger to the community caused by his taking off

in a high-speed vehicle chase.” Tr. p. 30. The nature and circumstances of the

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 5 of 10 crime can be an aggravating factor. Gleason v. State, 965 N.E.2d 702, 711 (Ind.

Ct. App. 2012). Sprague argues that “nothing in the record establishes the

nature of the vehicle chase or that the chase endangered the community.”

Appellant’s Br. p. 18. The probable cause affidavit indicates that Sprague drove

a vehicle in a high-speed chase on U.S. 30 and crashed into another vehicle. 1

This evidence is sufficient to show that his conduct was a danger to the

community, and the trial court did not abuse its discretion by finding this fact to

be an aggravating factor.

[11] Sprague next argues that the trial court abused its discretion by failing to

identify all significant mitigating circumstances. 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.

[12] The trial court found two mitigating circumstances—Sprague’s remorse and the

fact that he accepted responsibility by pleading guilty. According to Sprague,

the trial court should have also found undue hardship to his mother as a

mitigator. Many persons convicted of serious crimes have dependents and,

absent special circumstances, trial courts are not required to find that

1 Both Sprague and the State rely on the probable cause affidavit for the relevant facts.

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 6 of 10 imprisonment will result in an undue hardship. Dowdell v. State, 720 N.E.2d

1146, 1154 (Ind. 1999). In the pre-sentencing investigation report, Sprague

indicated that he had no source of income and had been dependent on his Pell

grants, his mother, and his sister for several years. At the sentencing hearing,

Sprague’s mother testified that she had several surgeries and is disabled. She

testified that Sprague’s imprisonment had made it more difficult for her to

operate her dog rescue business and that she was “doing the best that [she]

can.” Tr. p. 9. Although Sprague apparently physically assisted his mother

with her business and chores, we cannot say that special circumstances are

present here to require the trial court to find undue hardship. The mitigating

evidence regarding undue hardship is not significant and the trial court did not

abuse its discretion by failing to find undue hardship as a mitigator.

II. Inappropriate Sentence

[13] Sprague argues that his forty-year sentence is inappropriate under Indiana

Appellate Rule 7(B). 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

offenses and the character of the offender. When considering whether a

sentence is inappropriate, we need not be “extremely” deferential to a trial

court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). Still, we must give due consideration to that decision. Id. We also

understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. Under this rule, the burden is on the defendant to

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 7 of 10 persuade the appellate court that his or her sentence is inappropriate. Childress

v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[14] The principal role of Rule 7(B) 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). We “should focus on the forest—the aggregate sentence—rather than

the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. When reviewing the appropriateness of

a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including

whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

[15] The nature of the offense reveals that Sprague and his cohorts engaged in a

home invasion where they beat the victim and stole guns and cash. Sprague

emphasizes that he was only the get-away driver, but that argument minimizes

his conduct. Sprague was well aware of what the other men were doing in the

house, warned them that a neighbor had arrived, and engaged in a high-speed

chase while attempting to escape the area. After Sprague wrecked into another

vehicle at a highway intersection, one of Sprague’s cohorts engaged in a gun

fight with officers at the intersection and ultimately turned his gun on himself,

resulting in his death. Another of his cohorts shot the neighbor who had

pursued them. Although Sprague may not have been in the house terrorizing

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 8 of 10 Baruch or shooting at anyone, he was clearly an active participant in the

offense.

[16] As for the character of the offender, we acknowledge twenty-seven-year-old

Sprague’s remorse and guilty plea. However, we must also acknowledge his

criminal history. As an adult, Sprague has been arrested eight times, including

the current offense. Sprague has a 2009 felony conviction in Illinois for Class 4

felony possession of cannabis. He was found guilty in 2005 of Class A

misdemeanor possession of drug paraphernalia and Class A misdemeanor

possession of cannabis. The trial court withheld judgment and sentenced him

to one year of supervision. In 2009, he was charged with Class A misdemeanor

carrying/possession of a firearm, and he was sentenced to one year

“conditional discharge.” App. Vol. II p. 28. Sprague acknowledged that, at the

time of the offense, he was smoking marijuana on a daily basis.

[17] Sprague attempts to compare his sentence to that imposed on Fazzini. Fazzini,

who has been described as the ringleader of the offense, apparently received the

same sentence as Sprague. Our supreme court has held that we “need not

compare” sentences of codefendants. Knight v. State, 930 N.E.2d 20, 22 (Ind.

2010). Even if we were to attempt comparing the sentences, we have no

information regarding Fazzini’s criminal history or character. We cannot say

that Sprague was entitled to a lesser sentence. Given the serious nature of the

offense and Sprague’s criminal history, we cannot say that his sentence is

inappropriate in light of the nature of the offense and the character of the

offender.

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 9 of 10 Conclusion [18] The trial court did not abuse its discretion when it sentenced Sprague, and his

forty-year sentence is not inappropriate. We affirm.

[19] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016 Page 10 of 10