MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 14 2020, 8:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Arturo Rodriguez II Curtis T. Hill, Jr. Rodriguez Law, P.C. Attorney General Lafayette, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rudy L. Space, October 14, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1115 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Hunter J. Reece, Judge Trial Court Cause No. 86C01-1909-F6-75
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 1 of 7 Case Summary [1] Rudy Space pled guilty to Level 6 felony identity deception and being a
habitual offender, and the trial court sentenced him to two years for the felony
enhanced by two years for being a habitual offender. Space now appeals his
sentence, arguing it is inappropriate. We affirm.
Facts and Procedural History [2] On September 13, 2019, an Indiana State Police trooper came upon a disabled
car and two men along the side of a road in Warren County. The trooper
stopped to help and asked the men “for identification.” Appellant’s App. Vol. II
p. 10. Neither man had an identification card. However, one man verbally
identified himself as Anthony Jennings and provided a date of birth. The other
man—the defendant in this case, Rudy Space—verbally identified himself as
“Roger Space” but hesitated before providing a date of birth and couldn’t
provide a social-security number. The trooper ran the name “Roger Space” and
the birthday given but “was unable to get a return.” Id. Space admitted he had
given his cousin’s first name because he thought there was a warrant for his
arrest. He then provided his correct name, date of birth, and social-security
number.
[3] The State charged Space with Level 6 felony identity deception and being a
habitual offender. On September 16, Space was released on his own
recognizance subject to numerous pretrial conditions, including that he attend
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 2 of 7 all court hearings and “[m]aintain good and lawful behavior.” Id. at 12. Space,
however, failed to appear at hearings in October and November. After the
second failure to appear, a warrant was issued for Space’s arrest in November
2019. Also in November 2019, Space was charged with felony sex-offender-
registry violation in Illinois. He pled guilty to that offense in December 2019
and was sentenced to 180 days executed and three years of probation. Id. at 32.
Space was then arrested on the outstanding warrant in this case in January
2020. In March 2020, Space and the State entered into a plea agreement under
which Space agreed to plead guilty as charged. According to the plea
agreement:
[A]ny executed sentence shall not exceed four and one-half (4 1/2) years. Any sentence in excess of four and one-half (4 1/2) years shall be required to be suspended. The Defendant shall be sentenced as deemed appropriate by the Court.
Id. at 24.
[4] At the sentencing hearing, evidence was presented about Space’s “significant”
criminal history. Tr. pp. 9, 17. Specifically, Space had eight felony convictions
and one misdemeanor conviction (domestic battery) when he committed the
offense in this case. According to the PSI, the eight felony convictions include
two convictions for possession of a controlled substance in 2001 (Illinois),
aggravated criminal sexual abuse in 2011 (Illinois), a federal conviction for
conspiracy to commit robbery in 2014, and four convictions for failure to report
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 3 of 7 weekly/no fixed address in 2018 (Illinois).1 For these convictions, Space has
spent time in both state and federal prison. In addition, Space has violated his
probation several times, including in the federal case. The State recommended a
sentence of eight years with four-and-a-half years executed, and Space asked for
the minimum sentence of two-and-a-half years. The trial court found two
aggravators: (1) Space’s criminal history and (2) his “recent[] violat[ion] [of]
conditions of probation, parole, pardon, community corrections or pretrial
release.” Appellant’s App. Vol. II p. 39. The court found one mitigator: Space’s
guilty plea. The court sentenced Space to two years enhanced by two years for
being a habitual offender, all executed. The court recommended Therapeutic
Community and said if Space completed the program, it would consider a
modification of his sentence.
[5] Space now appeals his sentence.
Discussion and Decision [6] Space contends his four-year sentence is inappropriate and asks us to revise it to
three years with one year suspended under Indiana Appellate Rule 7(B), which
provides that an appellate court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the court finds that the
1 At the sentencing hearing, Space argued he had only four prior felony convictions. Specifically, he claimed he had only one conviction for failure to report weekly/no fixed address instead of four and that he had only one conviction for possession of a controlled substance instead of two. Even if Space had only four prior felony convictions, our result would be the same.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 4 of 7 sentence is inappropriate in light of the nature of the offense and the character
of the offender.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants must persuade us that
their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.
Ct. App. 2016).
[7] A person who commits a Level 6 felony shall be imprisoned for a fixed term of
between six months and two-and-a-half years, with an advisory sentence of one
year. Ind. Code § 35-50-2-7(b). “The court shall sentence a person found to be a
habitual offender to an additional fixed term that is between . . . two (2) years
and six (6) years, for a person convicted of a Level 5 or Level 6 felony.” Ind.
Code § 35-50-2-8(i). However, the plea agreement capped the executed portion
of the sentence at four-and-a-half years. The trial court sentenced Space to an
above-advisory term of two years enhanced by the minimum term of two years
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 14 2020, 8:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Arturo Rodriguez II Curtis T. Hill, Jr. Rodriguez Law, P.C. Attorney General Lafayette, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rudy L. Space, October 14, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1115 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Hunter J. Reece, Judge Trial Court Cause No. 86C01-1909-F6-75
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 1 of 7 Case Summary [1] Rudy Space pled guilty to Level 6 felony identity deception and being a
habitual offender, and the trial court sentenced him to two years for the felony
enhanced by two years for being a habitual offender. Space now appeals his
sentence, arguing it is inappropriate. We affirm.
Facts and Procedural History [2] On September 13, 2019, an Indiana State Police trooper came upon a disabled
car and two men along the side of a road in Warren County. The trooper
stopped to help and asked the men “for identification.” Appellant’s App. Vol. II
p. 10. Neither man had an identification card. However, one man verbally
identified himself as Anthony Jennings and provided a date of birth. The other
man—the defendant in this case, Rudy Space—verbally identified himself as
“Roger Space” but hesitated before providing a date of birth and couldn’t
provide a social-security number. The trooper ran the name “Roger Space” and
the birthday given but “was unable to get a return.” Id. Space admitted he had
given his cousin’s first name because he thought there was a warrant for his
arrest. He then provided his correct name, date of birth, and social-security
number.
[3] The State charged Space with Level 6 felony identity deception and being a
habitual offender. On September 16, Space was released on his own
recognizance subject to numerous pretrial conditions, including that he attend
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 2 of 7 all court hearings and “[m]aintain good and lawful behavior.” Id. at 12. Space,
however, failed to appear at hearings in October and November. After the
second failure to appear, a warrant was issued for Space’s arrest in November
2019. Also in November 2019, Space was charged with felony sex-offender-
registry violation in Illinois. He pled guilty to that offense in December 2019
and was sentenced to 180 days executed and three years of probation. Id. at 32.
Space was then arrested on the outstanding warrant in this case in January
2020. In March 2020, Space and the State entered into a plea agreement under
which Space agreed to plead guilty as charged. According to the plea
agreement:
[A]ny executed sentence shall not exceed four and one-half (4 1/2) years. Any sentence in excess of four and one-half (4 1/2) years shall be required to be suspended. The Defendant shall be sentenced as deemed appropriate by the Court.
Id. at 24.
[4] At the sentencing hearing, evidence was presented about Space’s “significant”
criminal history. Tr. pp. 9, 17. Specifically, Space had eight felony convictions
and one misdemeanor conviction (domestic battery) when he committed the
offense in this case. According to the PSI, the eight felony convictions include
two convictions for possession of a controlled substance in 2001 (Illinois),
aggravated criminal sexual abuse in 2011 (Illinois), a federal conviction for
conspiracy to commit robbery in 2014, and four convictions for failure to report
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 3 of 7 weekly/no fixed address in 2018 (Illinois).1 For these convictions, Space has
spent time in both state and federal prison. In addition, Space has violated his
probation several times, including in the federal case. The State recommended a
sentence of eight years with four-and-a-half years executed, and Space asked for
the minimum sentence of two-and-a-half years. The trial court found two
aggravators: (1) Space’s criminal history and (2) his “recent[] violat[ion] [of]
conditions of probation, parole, pardon, community corrections or pretrial
release.” Appellant’s App. Vol. II p. 39. The court found one mitigator: Space’s
guilty plea. The court sentenced Space to two years enhanced by two years for
being a habitual offender, all executed. The court recommended Therapeutic
Community and said if Space completed the program, it would consider a
modification of his sentence.
[5] Space now appeals his sentence.
Discussion and Decision [6] Space contends his four-year sentence is inappropriate and asks us to revise it to
three years with one year suspended under Indiana Appellate Rule 7(B), which
provides that an appellate court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the court finds that the
1 At the sentencing hearing, Space argued he had only four prior felony convictions. Specifically, he claimed he had only one conviction for failure to report weekly/no fixed address instead of four and that he had only one conviction for possession of a controlled substance instead of two. Even if Space had only four prior felony convictions, our result would be the same.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 4 of 7 sentence is inappropriate in light of the nature of the offense and the character
of the offender.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants must persuade us that
their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind.
Ct. App. 2016).
[7] A person who commits a Level 6 felony shall be imprisoned for a fixed term of
between six months and two-and-a-half years, with an advisory sentence of one
year. Ind. Code § 35-50-2-7(b). “The court shall sentence a person found to be a
habitual offender to an additional fixed term that is between . . . two (2) years
and six (6) years, for a person convicted of a Level 5 or Level 6 felony.” Ind.
Code § 35-50-2-8(i). However, the plea agreement capped the executed portion
of the sentence at four-and-a-half years. The trial court sentenced Space to an
above-advisory term of two years enhanced by the minimum term of two years
for being a habitual offender, resulting in a four-year executed sentence.
[8] We agree with Space that “[t]here are no egregious facts or actions” in this case.
Appellant’s Br. p. 10. When a police officer stopped to help Space, he gave his
cousin’s first name but then provided his name shortly thereafter.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 5 of 7 [9] Space’s character, however, supports his four-year executed sentence. It is true
Space pled guilty and was employed when he committed the offense in this
case. However, he has a “significant criminal history.” Tr. p. 17. Although
three of Space’s felony convictions were used to support his habitual-offender
enhancement (possession of a controlled substance, aggravated criminal sexual
abuse, and conspiracy to commit robbery), he has other felony convictions plus
a misdemeanor conviction for domestic battery. In addition, Space has served
time in both state and federal prison and has violated his probation on several
occasions. Notably, while he was on pretrial release in this case, he failed to
appear at two hearings and was charged with and pled guilty to a felony—his
ninth—in Illinois. Despite being given numerous opportunities to reform, Space
has repeatedly demonstrated that he will not.
[10] Nevertheless, Space claims “[i]ncarceration should not have been the answer to
address his problems”; rather, he “needs treatment to address his longstanding
substance abuse issues.” Appellant’s Br. p. 12. Although the PSI notes that
Space abused alcohol and marijuana, Space presented no evidence of his
substance-abuse issues at the sentencing hearing. Moreover, the trial court said
it would consider a modification of Space’s sentence if he completed
Therapeutic Community. Space has failed to persuade us that his four-year
executed sentence—with the chance of having it modified—is inappropriate.
We therefore affirm the trial court.
[11] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 6 of 7 Bailey, J., and Weissmann, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020 Page 7 of 7