Ronald L. Poling, Jr. v. State of Indiana (mem. dec.)
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Opinion
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 28 2019, 9:21 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Curtis T. Hill, Jr. Grant County Public Defender’s Office Attorney General of Indiana Marion, Indiana Michael Vo Sherman Certified Legal Intern
Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ronald L. Poling, Jr., August 28, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-672 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge The Honorable Brian F. McLane, Magistrate Trial Court Cause No. 27D02-1801-F5-5
Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019 Page 1 of 6 Statement of the Case [1] Ronald L. Poling, Jr. appeals his sentence following his guilty plea to domestic
battery, as a Level 5 felony. He raises one issue for our review, namely,
whether the trial court abused its discretion when it sentenced him.
[2] We affirm.
Facts and Procedural History [3] On the morning of January 7, 2018, Poling and his wife, M.P., began to argue.
The argument “escalated,” and Poling “shoved” M.P., which caused “pain” to
her shoulder. Appellant’s App. Vol. II at 18. The argument woke up Kara
Poling, another resident of the home, and Kara went to see what was
happening. Kara witnessed Poling “push” M.P. Kara then informed her
husband, William Poling, that Poling “was putting hands on” M.P. again. Id.
William confronted Poling, and Poling “attacked” William, “putting him in a
headlock.” Id. Kara then called the police, and Poling fled. Officers later
located and detained Poling.
[4] The State charged Poling with two counts of domestic battery. For Count I, the
State charged Poling with domestic battery, as a Class A misdemeanor, based
on the allegation that Poling had hit and/or shoved M.P. The State then
elevated that charge to a Level 5 felony because Poling had previously been
convicted of domestic battery against M.P. For Count II, the State charged
Poling with domestic battery, as a Class A misdemeanor, based on the
allegation that Poling had grabbed, hit, or shoved William.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019 Page 2 of 6 [5] On January 7, 2019, the parties filed a plea agreement. Pursuant to that
agreement, Poling agreed to plead guilty to Count I, and the State agreed to
dismiss Count II. The parties also agreed to a sentence of four years, with a
maximum of two years executed. That same day, the trial court held a hearing
on Poling’s guilty plea. During the hearing, Poling admitted that he had
knowingly touched M.P. in a rude, insolent, or angry manner by “hitting
and/or shoving her.” Tr. Vol. II at 8. He further admitted that he had
previously been convicted of domestic battery against M.P. The trial court took
Poling’s guilty plea under advisement.
[6] On February 25, the trial court held a sentencing hearing. At the conclusion of
the hearing, the trial court entered judgment of conviction against Poling for
Count I, and the court dismissed Count II. The court then sentenced Poling as
follows: “I’m going to sentence [you] to the two years executed and two years
suspended. Um, I know that you do have substantial—well you do have [a]
criminal history and, uh, note that one of those was also Domestic Battery with
a Spouse.” Id. at 17.
[7] That same day, the trial court issued a written sentencing order in which it
identified aggravating factors. Specifically, the trial court found that Poling
“has a history of criminal and/or delinquent activity.” Appellant’s App. Vol. II
at 59. The court also found that Poling “showed no remorse for his actions”
and that he “minimized and gave excuses for the incident.” Id. The court
found that both of those factors were “strong aggravators.” Id. (emphasis in
original). The court found that there were no mitigating factors. Accordingly,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019 Page 3 of 6 the court reiterated Poling’s sentence of four years, with two years executed and
two years suspended to probation. Id. This appeal ensued.
Discussion and Decision [8] Poling contends that the trial court abused its discretion when it sentenced him.
Sentencing decisions lie within the sound discretion of the trial court. Cardwell
v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
omitted), trans. denied.
[9] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[10] Here, Poling pleaded guilty to domestic battery, as a Level 5 felony. The
sentencing range for a Level 5 felony is one year to six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6(b) (2019). Following a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-672 | August 28, 2019 Page 4 of 6 sentencing hearing, the trial court sentenced Poling to an enhanced sentence of
four years, with two years executed and two years suspended to probation.
[11] On appeal, Poling contends that the trial court abused its discretion when it
sentenced him because it used “a material element of the offense” as an
aggravating factor to enhance his sentence. Appellant’s Br. at 8 (emphasis
removed). Specifically, Poling contends that the court relied on his previous
conviction for domestic battery against M.P. when it imposed an enhanced
sentence even though the State had used that conviction to enhance his charge
from a Class A misdemeanor to a Level 5 felony.
[12] Poling is correct that, “[w]here a trial court’s reason for imposing a sentence
greater than the advisory sentence includes material elements of the offense,
absent something unique about the circumstances that would justify deviating
from the advisory sentence, that reason is ‘improper as a matter of law.’”
Gomilla v.
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