Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 24 2014, 6:13 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK OLIVERO GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
RANDALL CAPATINA, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1304-CR-131 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Judge Cause No. 02D06-1208-FC-278
January 24, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
Randall Capatina (“Capatina”) appeals his sentence following his guilty plea to
Class C felony disarming a law enforcement officer.1
We affirm.
ISSUE
Whether the trial court erred in sentencing Capatina.
FACTS
On August 26, 2012, Officer Matthew Foote (“Officer Foote”), a police officer
with the City of Fort Wayne, arrested Capatina for invasion of privacy. Officer Foote
transported Capatina to the Allen County Jail, and along the way Capatina made several
threatening statements, such as “I will fuck you up”; “as soon as I’m out of these cuffs,
I’m going to hurt who ever [sic] is around me and myself”; “if we were at Walmart or
McDonald’s and you didn’t have on that badge, I would fuck you up”; and “you let me
out of these handcuffs and it will be the last decision you make[.] I’ve shot someone
before[,] and I beat it, just like I’ll beat this.” (Sentencing Tr.1 25).2 Capatina also asked
for Officer Foote’s address, last name, and wife’s name, and told Officer Foote that he
would “find out who [his] wife is” and “see [him] later.” (Sentencing Tr.1 25). Finally,
Capatina told Officer Foote that he would get an officer’s gun at the jail. Officer Foote
informed Capatina that there were not any guns, and Capatina responded that he would
1 Ind. Code § 35-44.1-3-2. 2 Because Capatina’s sentencing hearing was continued, there are two sentencing transcripts. For purposes of this opinion, “Sentencing Tr.1” will refer to the transcript from the portion of Capatina’s sentencing hearing held on February 1, 2013, and “Sentencing Tr.2” will refer to the portion of Capatina’s sentencing hearing held on April 8, 2013. 2 instead get a pen and stab himself in the eye. Officer Foote later testified that he “got the
sense that [Capatina was] very capable of doing ill will.” (Sentencing Tr.1 26).
After reaching the jail, Capatina was transported to a hospital to receive
medication. At the hospital, Allen County Police Officer Brandon Garrison (“Officer
Garrison”) relieved the officers watching Capatina. He heard Capatina continue to make
statements threatening to harm himself and believed Capatina to be suicidal. When a
nurse came into Capatina’s room to administer the medication, Officer Garrison removed
Capatina’s arm restraints. Capatina successfully took the medication, but then said “I’m
going to get your gun and shoot myself” and attempted to take Officer Garrison’s
firearm. (Sentencing Tr.1 30). A struggle ensued, and additional officers and nurses
assisted in subduing Capatina before he could reach the firearm.
On August 30, 2012, the State charged Capatina with Class C felony disarming a
law enforcement officer. Subsequently, on January 7, 2013, Capatina pled guilty to the
charge without the benefit of a plea agreement. The trial court held a sentencing hearing
on February 1, 2013, at which Capatina argued that his minimal criminal history and
history of mental illness were mitigating factors. Capatina’s counsel testified that
Capatina had undergone a psychiatric evaluation in 2003 after multiple attempted
suicides and has been diagnosed with depression and post-control disorder, as well as a
potential but unconfirmed personality disorder. Capatina’s counsel also argued to the
trial court that depression was an ongoing concern because Capatina had been on suicide
watch for a period of time while incarcerated. At the conclusion of the testimony, the
3 trial court continued the hearing in order to obtain a forensic mental health evaluation
from Community Corrections.
On April 8, 2013, the trial court resumed the sentencing hearing. At the hearing,
Capatina argued that his guilty plea and the fact that he took responsibility for his actions
were additional mitigating factors. The trial court sentenced Capatina to six (6) years in
the Department of Correction, with four (4) years executed and two (2) years suspended
to probation. Capatina now appeals.
DECISION
On appeal, Capatina claims that the trial court erred in two respects. First, he
argues that the trial court abused its discretion in imposing a sentence in excess of the
advisory sentence for a Class C felony because the court did not identify any aggravating
factors and overlooked mitigating factors. Second, he argues that his sentence is
inappropriate in light of the nature of his offense and his character.
A. Aggravating and Mitigating Factors
Sentencing decisions rest within the sound discretion of the trial court. Anglemyer
v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Under Indiana’s advisory sentencing scheme, “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
. . . permissible under the Constitution of the State of Indiana.’” Id. at 491 (quoting I.C. §
35-38-1-7.1(d) (stating that a court may impose any sentence authorized by statute
“regardless of the presence or absence of aggravating or mitigating circumstances.”)). As
4 long as the sentence is within the statutory range, it is subject to review only for an abuse
of discretion. Id. at 490. We will find an abuse of discretion where 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. A trial court may
abuse its discretion in a variety of ways, including: (1) failure to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating and
mitigating factors that are unsupported by the record; (3) entering a sentencing statement
that omits reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-91.
1. Aggravating Factors
With respect to aggravating factors, Capatina specifically argues that the trial court
abused its discretion because it did not specify its reasons for sentencing him in excess of
the advisory sentence for a Class C felony in its sentencing statement.3 Trial courts are
required to enter a sentencing statement whenever imposing a sentence for a felony
offense. Id. at 490. This statement must include a reasonably detailed recitation of the
trial court’s reasons for imposing a particular sentence. Id. However, when reviewing
the sufficiency of a sentencing statement, this Court may also examine the trial court’s
oral statements in the transcript of the sentencing proceedings in order to determine the
trial court’s findings. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). In non-
3 Pursuant to Indiana Code § 35-50-2-6, the minimum sentence for a Class C felony is two years, the maximum is eight years, and the advisory sentence is four years. Accordingly, Capatina’s six year sentence is two years more than the advisory sentence of four years, although Capatina’s executed sentence is equal to the advisory sentence.
5 death penalty cases, it is sufficient if the trial court’s reasons for enhancing a sentence are
clear from a review of the sentencing transcript. Mundt v. State, 612 N.E.2d 566, 568
(Ind. Ct. App. 1993), trans. denied.
Although the trial court here did not clarify its findings regarding aggravating
factors in its judgment of conviction, its oral comments during the sentencing hearing
adequately explain its reasons for imposing a six-year sentence. The State argued that the
maximum sentence possible was necessary to protect the community because Capatina
“is self-destructive and [] doesn’t care who he hurts along the way.” (Sentencing Tr.2 9).
In response, the trial court stated “I cannot disagree with anything that has been said by
either counsel.” (Sentencing Tr.2 10). Also, the trial court made it clear to Capatina that
his placement in the Department of Correction was “for security” because Capatina was
not cooperating with his treatment and had quit taking his medication. (Sentencing Tr.2
11). The court also stated, “I understand that what’s going on with you is not right, and
you’re not right, but I don’t know how to fix that without your cooperation[,] and at this
point it does not appear that you’re cooperating, and that’s why I impose the sentence that
I do.” (Sentencing Tr.2 12). Based on these comments during the sentencing hearing, we
conclude that the trial court did elaborate its reasons for imposing a six-year sentence and
accordingly did not abuse its discretion.
2. Mitigating Factors
Next, Capatina argues that the trial court improperly overlooked multiple
mitigating factors that he advanced at trial, including that he (1) pled guilty without the
benefit of a plea agreement; (2) accepted responsibility for his actions, as illustrated by
6 his apologies to Officer Garrison and hospital staff; (3) suffered from mental health
issues and was suicidal at the time of the event; and (4) had a relatively minor adult
criminal history.
In order to show that a trial court failed to identify or find a mitigating factor, the
defendant must establish that the mitigating evidence is both significant and clearly
supported by the record. Anglemyer, 868 N.E.2d at 493. While a failure to find
mitigating circumstances clearly supported by the record may imply that the sentencing
court improperly overlooked them, the court is obligated neither to credit mitigating
circumstances in the same manner as would the defendant, nor to explain why it has
chosen not to find mitigating circumstances. Roush v. State, 875 N.E.2d 801, 811 (Ind.
Ct. App. 2007). Our Supreme Court has noted that “[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.” Smith v. State, 770
N.E.2d 818, 822-23 (Ind. 2002). Notably, because Capatina argued for all of these
mitigating factors at trial, it is clear that the trial court had the opportunity to consider
each factor and was not obligated to explain why it chose not to find that the factors
existed. See id. Nevertheless, we will address each factor in turn.
Although a guilty plea may be a mitigating circumstance, it “does not rise to the
level of significant mitigation where the defendant has received a substantial benefit from
the plea or where the evidence against him is such that the decision to plead guilty is
merely a pragmatic one.” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App. 2013)
(quoting Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011), trans. denied),
7 reh’g denied. Here, there was overwhelming evidence of Capatina’s guilt such that the
decision to plead guilty was merely pragmatic. In addition to Officer Garrison’s
testimony that Capatina attempted to reach his firearm, there is a video of the incident,
and five to six people had to assist Officer Garrison in subduing Capatina. Accordingly,
the trial court did not abuse its discretion when it did not find that Capatina’s guilty plea
was a mitigating factor.
With respect to Capatina’s claim regarding his remorse, our Supreme Court has
held that a trial court’s determination of a defendant’s remorse is similar to a
determination of credibility. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Without
evidence of impermissible consideration by the trial court, a reviewing court will accept
its determination as to remorse. Id. In the instant case, we cannot find any evidence of
an impermissible consideration. Officer Garrison testified that Capatina had apologized
to him and the staff at the hospital, and then Capatina’s counsel reiterated this point in
closing. The trial court never responded to that argument in any manner that could imply
that his consideration was impermissible. Accordingly, we conclude that the trial court
did not abuse its discretion.
Capatina next challenges the trial court’s implicit denial that his mental illness was
a mitigating circumstance. A guilty but mentally ill defendant “is not automatically
entitled to any particular credit or deduction from his otherwise aggravated sentence[.]”
Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002) (quoting Archer v. State, 689 N.E.2d 678,
684 (Ind. 1997)). Nonetheless, we have held that in sentencing a guilty but mentally ill
defendant, trial courts “‘should at a minimum carefully consider on the record what
8 mitigating weight, if any, to accord to any evidence of mental illness, even though there
is no obligation to give the evidence the same weight the defendant does.’” Id. (quoting
Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998)). There are several factors that bear on this
determination, including: (1) the extent of the defendant’s inability to control his or her
behavior due to the disorder or impairment; (2) overall limitations on functioning; (3) the
duration of the mental illness; and (4) the extent of any nexus between the disorder or
impairment and the commission of the crime. Id. (citing Archer, 689 N.E.2d at 685).
There is concededly a nexus between Capatina’s depression and the commission
of the crime. As Officer Garrison testified, he heard Capatina state multiple times that he
wanted to hurt himself, to the extent that he believed Capatina was suicidal. Then,
shortly before Capatina reached for Officer Garrison’s firearm, Officer Garrison heard
him say “I’m going to get your gun and shoot myself.” (Sentencing Tr.1 30). Capatina
also presented evidence that his mental illness was longstanding and that he had been
diagnosed with depression in 2003. However, with respect to the other two Archer
factors, there is no evidence in the record that Capatina was unable to control his
behavior or had any limitations on his functioning.
To the contrary, the trial court implied that Capatina might have overstated his
mental illness and, therefore, his lack of control over his actions. When discussing the
results of the forensic evaluation, the trial court stated that “what turn[ed] up in the
forensic” was that Capatina had “overstated [his] condition.” (Sentencing Tr.2 12).
While the results of the evaluation are not a part of the record on appeal, it is apparent
9 that they played a role in the trial court’s decision.4 During its sentencing statement, the
trial court also stated:
See, that’s part of the problem here[,] Mr. Capatina, and the other problem in the evaluation is that it became clear that at least some of your problems, I’m not suggesting that you don’t have a problem, but some of your problem is that you tend to overstate your problem as opposed to working with it . . . .
(Sentencing Tr.2 11).
Even absent the results of the forensic evaluation, however, it is clear that the trial
court carefully considered the issue of Capatina’s mental illness, especially in terms of
Capatina’s culpability for his actions. First, the trial court continued the sentencing
hearing after hearing testimony about Capatina’s illnesses in order to obtain a forensic
mental health evaluation from Community Corrections. Then, during its sentencing
statement, the trial court acknowledged:
I understand all the concerns about ability to control one[’]s actions and whether or not we’re guilty but mentally ill or not competent or all of those things that don’t comply with . . . the letter of the rules of criminal law that require criminal intent together with an act, and all those have gotten real gray and real blurred in this case . . . .
(Sentencing Tr.2 12). In light of this careful consideration and the lack of evidence that
Capatina’s illness prevented him from being able to control his actions, we conclude that
the trial court did not abuse its discretion in determining that Capatina’s mental illness
was not a mitigating circumstance.
4 Notably, the evaluation was filed with the trial court and thus became a part of the Clerk’s Record. Pursuant to Indiana Appellate Rule 50(B)(1)(a), an appellant in a criminal appeal must include the Clerk’s Record in its Appendix on appeal. 10 Finally, Capatina argues that his prior criminal history is relatively minor and
should have been a mitigating circumstance. Although a lack of criminal history may be
considered a mitigating circumstance, “[t]rial courts are not required to give significant
weight to a defendant's lack of criminal history,” especially “when a defendant's record,
while felony-free, is blemished.” Townsend v. State, 860 N.E.2d 1268, 1272 (Ind. Ct.
App. 2007) (quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans.
denied). “‘In the non-capital context, a single conviction or juvenile adjudication may
negate this mitigating circumstance [of lack of criminal history].’” Id. (quoting Warlick
v. State, 772 N.E.2d 809, 813 (Ind. 2000)). Here, although Capatina does not have any
prior felony convictions, he does have three misdemeanor convictions, including another
charge involving a firearm, Class A misdemeanor pointing firearm at another person.
Based on this history, we conclude that the trial court did not abuse its discretion when it
did not find that Capatina’s criminal history was a mitigating factor.
B. Inappropriate Sentence
Next, Capatina argues that the trial court’s sentence is inappropriate in light of the
nature of his offense and his character. He asks us to consider the totality of the
circumstances when considering the nature of the offense, including his mental state and
the fact that he never physically touched Officer Garrison’s weapon. In addition,
Capatina argues that his guilty plea and his remorse are evidence of good character that
warrant a reduced sentence. In support of this argument, he notes that he apologized to
Officer Garrison and the hospital staff for his actions and that he pled guilty without
attempting to negotiate a plea agreement.
11 Pursuant to Appellate Rule 7(B), a reviewing court may revise a sentence if, “after
due consideration of the trial court’s decision,” it finds that the sentence is inappropriate
in light of the nature of the offense and the character of the offender. Childress v. State,
848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting Ind. App. R. 7(B)). Although this Court
is not required to use “great restraint,” we nevertheless exercise deference to a trial
court’s sentencing decision, both because the Appellate Rule 7(b) requires that we give
“due consideration” to that decision and because we recognize the unique perspective a
trial court has when making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct.
App. 2007). The “principal role of appellate 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). In addition, the
defendant bears the burden of persuading this court that his sentence is inappropriate.
Childress, 848 N.E.2d at 1080.
Although there is substantial evidence that Capatina’s actions were influenced by
his history of mental illness and mental state during the incident in question, we cannot
agree that the nature of his offense was not serious. Capatina did not manage to reach
Officer Garrison’s weapon, but it is clear from the record that he put a significant amount
of effort into doing so – to the point that Officer Garrison required the assistance of at
least five other officers and nurses to subdue him. Also, Capatina’s threats to Officer
Garrison, including his statement “I’m going to get your gun and shoot myself,” are
12 evidence that he intended to use Officer Garrison’s firearm in a public facility and in the
proximity of another person once he reached it.
With respect to his character, it is commendable that Capatina apologized to
Officer Garrison and the hospital staff involved and accepted responsibility for his
actions through a guilty plea. However, as stated above, his guilty plea has little
significance in light of the overwhelming evidence against him. Instead, we find the trial
court’s sentence appropriate in light of other evidence of Capatina’s character. Both
before and during the incident in question, Capatina demonstrated a lack of regard for the
safety of others and for the law. While Officer Foote was transporting him, Capatina
threatened that “as soon as I’m out of these cuffs, I’m going to hurt who ever [sic] is
around me and myself” and “you let me out of these handcuffs and it will be the last
decision you make[.] I’ve shot someone before[,] and I beat it, just like I’ll beat this.”
(Sentencing Tr.1 25). During Capatina’s attempts to reach Officer Garrison’s firearm, he
also disregarded the risk to Officer Garrison’s safety and the risk to the safety of the
others that came to assist the officer.
In addition, while Capatina does not have an extensive criminal history, this is not
his first violent offense. He has three prior misdemeanor convictions, including Class A
misdemeanor battery resulting in bodily injury and Class A misdemeanor pointing
firearm at another person, as well as pending charges in another cause. Based on the
above circumstances, we conclude that the trial court’s sentence was appropriate in light
of the nature of Capatina’s offense and his character.
13 Affirmed.
CRONE, J., and BARNES, J., concur.