Mickey S. Owen v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 20, 2012
• Docket: 87A01-1111-CR-562
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 20 2012, 9:00 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JONATHAN M. YOUNG GREGORY F. ZOELLER Newburgh, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MICKEY S. OWEN, ) ) Appellant-Defendant, ) ) vs. ) No. 87A01-1111-CR-562 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Keith A. Meier, Judge Cause No. 87D01-1105-FD-229

June 20, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, Mickey S. Owen (Owen), appeals his sentence following a

guilty plea for two Counts of theft, Class D felonies, Ind. Code § 35-43-4-2(a).

We affirm.

ISSUES

Owen raises two issues on appeal, which we restate as:

(1) Whether the trial court abused its discretion by imposing consecutive

sentences; and

(2) Whether the trial court properly sentenced Owen.

FACTS AND PROCEDURAL HISTORY

On May 9, 2011, Owen and others committed thefts of certain property in

Lynnville Park in Warrick County, Indiana. The thefts occurred between 11 p.m. on May

9, 2011 and 4 a.m. May 10, 2011. Four separate victims reported property stolen from

their campsites. The property consisted of a kayak and fishing gear from one victim; a

refrigerator, camping equipment, and beer from another; and an outboard fishing motor,

battery, gasoline, and fishing gear from two other victims.

On May 13, 2011, acting on a tip, a deputy from the Warrick County Sheriff’s

Department spotted Jeremy Alvey (Alvey), Michael Dyer Jr. (Dyer), and a third man with

the kayak. Both Alvey and Dyer denied knowing that the kayak was stolen and said that

Owen had been staying at Alvey’s home since May 9, 2011. Following a search of

2 Alvey’s residence, additional stolen items were located and both Alvey and Dyer were

arrested. Alvey later confessed that Dyer and Owen had stolen the items, pawned some

of the property, and used the proceeds at the casino. On May 14, 2011, Owen was

arrested and later confessed that he had helped Dyer steal the property.

On May 16, 2011, the State filed an Information charging Owen with five Counts

of theft, Class D felonies, I.C. § 35-43-4-2(a). On that same day, the State filed an

additional Information charging Owen with Count VI, being a habitual offender, I.C. §

35-50-2-8(a). On October 21, 2011, Owen entered into a plea agreement with the State in

which he agreed to plead guilty to Counts I and IV in exchange for the State’s dismissal

of Counts II, III, V, and VI. The plea agreement left Owen’s sentence to the trial court’s

discretion.

On November 28, 2011, the trial court conducted a sentencing hearing. Owen

argued that his crimes amounted to a single episode of criminal conduct and therefore his

sentences should run concurrently. In response, the State pointed out that Owen’s crimes

were committed against different victims over the course of May 9 and May 10, 2011.

The trial court sentenced Owen to thirty-four months for each Count, with the sentences

to be served consecutively at the Department of Correction, for an aggregate sentence of

sixty-eight months.

Owen now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Consecutive Sentences

3 Owen argues that the trial court abused its discretion by ordering him to serve

consecutive sentences. The trial court has discretion to impose consecutive sentences and

may do so after consideration of aggravating and mitigating circumstances. I.C. § 35-50-

1-2(c); Owens v. State, 916 N.E.2d 913, 917 (Ind. Ct. App. 2009). The trial court must

state its reasons and find at least one aggravating circumstance before imposing

consecutive sentences. Owens, 916 N.E.2d at 917.

Here, Owen was convicted on two Counts of theft as Class D felonies, and

received a thirty-four month sentence on each Count, with the sentences to run

consecutively. A person who commits a Class D felony shall be imprisoned for a fixed

term of between six months and three years, with the advisory sentence being one and

one-half years. I.C. § 35-50-2-7. However, I.C. § 35-50-1-2(c) provides that:

except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under [I.C. §] 35-50-2-8 [habitual offenders] and [I.C. §] 35-50-2-10 [habitual substance offenders], to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

Owen claims that his aggregate sentence of sixty-eight months violates the final

paragraph of I.C. § 35-50-1-2(c), which restricts the trial court’s ability to impose

consecutive sentences for crimes arising from the same criminal episode. See Gootee v.

State, 942 N.E.2d 111, 114 (Ind. Ct. App. 2011), trans. denied. Owen argues that

because his crimes constituted a single episode of criminal conduct, his aggregate

4 sentence may not exceed forty-eight months, the advisory sentence for a Class C felony.

See I.C. § 35-50-2-6.

An “episode of criminal conduct” refers to “offenses or a connected series of

offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b).

To determine whether multiple crimes constitute an episode of criminal conduct,

emphasis has been placed on the timing of the offenses and the simultaneous and

contemporaneous nature, if any, of the crimes. Gootee, 942 N.E.2d at 114. Also relevant

is whether the conduct is so closely related in time, place, and circumstance that a

complete account of one charge cannot be related without referring to details of the other

charge. See id.

At the sentencing hearing, the trial court declined to find that Owen’s thefts

constituted a single episode of criminal conduct. Specifically, the trial court noted:

[Y]ou’ve got two victims[.] The probable cause affidavit indicated that the offenses occurred between the hours of 11:00 p.m. on May the 9th and 4:00 a.m. on May the 10th, so it was during that five hour time span there. In [first victim’s case], the items that were stolen were taken from his campsite. In [the second victim’s case], they were stolen from a boat. As I understand the case law that ha[s] dealt with this situation, this is not an episode of criminal conduct. These are two events, although they are closely related in time. They are not related in place, and they’re not related in circumstance. And I think it’s clear, you can account for one of these without reference to the other.

(Transcript p. 17).

We agree with the trial court that Owen’s thefts do not constitute a single episode

of criminal conduct. Although the crimes occurred over a period of five hours in

Lynnville Park, it cannot be ignored that Owen stole different items from different 5 victims at different locations in and around the park. Further, Owen points to no

evidence in the record to show that the thefts were simultaneous or contemporaneous.

Instead, each theft was a crime in and of itself, for which there was no need to refer to the

details of one to sustain the other. See Reynolds v. State, 657 N.E.2d 438, 440-41 (Ind.

Ct. App. 1995). Thus, the trial court correctly found I.C. § 35-50-1-2(c) inapplicable to

Owen. We conclude that the trial court did not abuse its discretion in imposing

consecutive sentences for an aggregate sixty-eight month sentence.

II. Length of Sentence

Owen next argues that the trial court abused its discretion by imposing a thirty-

four month sentence for each theft. In particular, Owen asserts that had the trial court

properly considered and weighed the factors, it would not have sentenced him so close to

the maximum possible sentence. The maximum sentence for a Class D felony is three

years or thirty-six months. I.C. § 35-50-2-7(a). Owen’s sentence for each Count was two

months short of the maximum possible sentence.

As Owen’s sentences are each within the statutory range, they are 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 discretion occurs if

the 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.

Ways in which the trial court may abuse its discretion include: wholly failing to issue a

sentencing statement; issuing a sentencing statement that bases a sentence on reasons

6 unsupported by the record, or that includes reasons that are improper as a matter of law.

Phelps v. State, 914 N.E.2d 283, 290 (Ind. Ct. App. 2009).

Owen claims that the trial court either failed to consider certain mitigating facts

presented at the sentencing hearing or failed to properly weigh such facts. When alleging

that the trial court failed to identify or find a mitigating factor, a defendant must establish

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

State, 903 N.E.2d 135, 141 (Ind. Ct. App. 2009). However, “[i]f the trial court does not

find the existence of a mitigating factor after it has been argued by counsel, the trial court

is not obligated to explain why it has found that the factor does not exist.” Anglemyer,

868 N.E.2d at 493. Further, the trial court does not have the obligation to weigh

aggravating and mitigating factors against each other when imposing a sentence, and

does not abuse its discretion by failing to properly weigh such factors. Id. at 491.

Rather, once the trial court has entered a sentencing statement, which may or may not

include the existence of aggravating and mitigating factors, it may then impose any

sentence that is authorized by statute and permitted under the Indiana Constitution. Id.

Owen recites a number of mitigating factors, which he argues the trial court failed

to properly consider. First, he argues that he claimed responsibility for his actions early

on and cooperated with the Sheriff’s Department. He notes that his thefts were minor and

all items stolen, except for gasoline, were returned to their rightful owners. While

incarcerated, Owen sought treatment for substance abuse issues and attempted to better

7 himself through a number of programs. Finally, Owen emphasizes the importance of his

guilty plea, which he notes saved both time and expense.

Our review of the record reveals that the trial court considered each of the factors

advanced by Owen and reached a different conclusion. The trial court discounted his

cooperation with the Sheriff’s Department based upon his early denials of culpability.

Regarding his rehabilitation efforts and substance abuse treatment, the trial court noted

that Owen’s prior attempts at rehabilitation were without effect and insufficient to deter

him from further crimes. The trial court exhaustively reviewed Owen’s criminal career,

and found it significant that it encompassed some twenty-seven years, including nine

felony convictions and fifteen misdemeanor convictions. Thus, we cannot say that the

trial court improperly weighed this factor. Finally, while the trial court afforded some

mitigating weight to Owen’s guilty plea, this argument is insufficient. Owen received a

substantial benefit for his guilty plea by the State’s dropping of three additional Class D

felonies and the habitual offender charge. As Owen already received a substantial benefit

in exchange, his guilty plea is properly not considered as a significant mitigator. See

Anglemyer, 875 N.E.2d at 221. We therefore affirm the trial court’s imposition of

Owen’s sixty-eight month executed sentence.1

CONCLUSION

1 Ind. Appellate Rule 7(B) enables appellate review of the appropriateness of a sentence authorized by statute. However, because Owen makes no argument that his sentence is inappropriate under Rule 7(B), we do not discuss it.

8 Based on the foregoing, we conclude that the trial court did not abuse its discretion

in sentencing Owen.

Affirmed.

NAJAM, J. and DARDEN, J. concur