Ryan Sizemore v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 24, 2016
• Docket: 27A02-1511-CR-1918
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 24 2016, 9:15 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ryan Sizemore, May 24, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1511-CR-1918 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1505-F6-193

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 1 of 12 [1] In May of 2015, Appellant-Defendant Ryan Sizemore engaged in a series of

verbal and physical disputes with his then-girlfriend. As a result of Sizemore’s

actions during these disputes, Appellee-Plaintiff the State of Indiana (the

“State”) subsequently charged Sizemore with Level 4 felony possession of a

firearm by a serious violent felon, Level 6 felony residential entry, Level 6

felony domestic battery in the presence of a child, Level 6 felony neglect of a

dependent, and two counts of Class A misdemeanor invasion of privacy.

[2] On August 18, 2015, the morning that his trial was scheduled to begin,

Sizemore pled guilty as charged. In exchange for Sizemore’s guilty plea, the

State agreed that it would not request consecutive sentences. The trial court

subsequently accepted Sizemore’s guilty plea and sentenced him to an

aggregate term of twelve years. Sizemore contends on appeal that the trial

court abused its discretion in sentencing him. Concluding otherwise, we affirm.

Facts and Procedural History [3] On May 22, 2015, Jeff Hartman, his girlfriend Kimberly Troy, and Carolyn

Duncil went to Duncil’s apartment so that Duncil could tend to her dog.

Hartman and Troy waited outside while Duncil went into the apartment.

While Duncil was inside the apartment, Sizemore—who was Duncil’s

boyfriend—ran into the apartment. After Sizemore had entered the apartment,

Hartman and Troy heard screaming coming from inside the apartment.

Hartman went to the door to investigate. He was met at the door by Sizemore

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 2 of 12 who repeatedly stated that Duncil was not leaving. Hartman and Troy

implored Sizemore to let Duncil leave.

[4] After more arguing between Sizemore and Duncil and repeated requests from

Hartman and Troy for Sizemore to let Duncil leave, Duncil and Sizemore came

to the door. Sizemore again reiterated that Duncil was not leaving. When

Troy threatened to call the police if Sizemore did not allow Duncil to leave the

apartment, Sizemore pulled up his shirt to show that he had a pistol in his

waistband and said, “If I go I’m taking everyone with me.” Tr. p. 23. About

ten minutes later, Sizemore relented and allowed Duncil to leave the apartment.

[5] Duncil, Hartman, and Troy left in Hartman’s truck and began to make their

way to Troy’s residence. While in route to Troy’s residence, Duncil became

sick and Hartman had to pull the truck to the side of the road to allow Duncil to

vomit. The trio “took off” after they noticed Sizemore approaching Hartman’s

truck on a bicycle. Tr. p. 24. As they continued towards Troy’s residence, the

trio stopped and purchased a blanket for Duncil from a local store. Upon

arriving at Troy’s residence, Hartman stayed at the residence and Duncil and

Troy left in Hartman’s truck.

[6] Soon thereafter, Hartman saw Sizemore approaching the residence on a bicycle.

While standing on the sidewalk in front of Troy’s residence, Sizemore told

Hartman that he was “waiting” on Duncil and Troy. Tr. p. 24. Sizemore was

still waiting when Troy and Duncil returned. Troy parked Hartman’s truck in

her driveway and she and Duncil ran in the back door of her residence.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 3 of 12 However, before Hartman could close the door behind them, Sizemore “put his

foot between the door and the doorjamb” so that Hartman could not close it

completely. Tr. p. 25.

[7] Sizemore yelled that he wanted to talk to Duncil. Duncil initially refused, but

after about fifteen minutes of continued yelling and arguing, Duncil met

Sizemore on Troy’s front porch. Before long, Duncil and Sizemore were

yelling at each other. Hartman came to the front porch and instructed

Sizemore to leave. Sizemore responded by getting “nose to nose” with

Hartman, asking him “Do you know who you’re … f-ing with?” Tr. p. 25.

Duncil escorted Sizemore off the porch to the sidewalk. Sizemore then pulled

out a “blue, anodized” pistol, pointed it at Hartman, and again asked Hartman

“Do you know who you’re f-ing with?” Tr. p. 25. Hartman, who had seen

Sizemore with that particular pistol on multiple occasions, then called 911.

Sizemore then fled to a local restaurant. Later that evening, the responding

officer made contact with Sizemore and told him “to stay away for the night.”

Tr. p. 28.

[8] The next day, Hartman, Troy, Duncil, and others—including Duncil’s and

Sizemore’s three-year-old daughter, Tazra, and Hartman’s one-and-a-half-year-

old son, Kyden—were at Troy’s residence preparing to go to a picnic. Sizemore

approached the residence, again on a bicycle; walked into the residence, and

talked to Duncil. Sizemore demanded that Duncil leave with him. Duncil

refused and ran out the back door of the residence. Once outside, Duncil

picked up Tazra. Sizemore came out of the residence and attempted to

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 4 of 12 “forcefully grab” Duncil to make her come with him. Tr. p. 30. When Shawna

Bryant, another person who happened to be at Troy’s residence, protested,

Sizemore “forcefully pushed her against the trunk” of Hartman’s vehicle. Tr. p.

30. Sizemore then grabbed Duncil, who was still holding Tazra, and pulled her

down the street.

[9] “[A]bout three-quarters of the way down the block,” Sizemore began hitting

Duncil, who again was still holding Tazra, with a closed fist. Tr. p. 30.

Hartman again called 911. Hartman and some of the other people at Troy’s

residence then pursued Sizemore, who had stopped striking Duncil and had fled

down an alley. Duncil later found Sizemore’s pistol in a burn barrel in the

alley. Hartman and another man retrieved the pistol from the barrel and gave it

to Duncil. Duncil subsequently gave the pistol to Sizemore’s mother.

Sizemore was later arrested and a no-contact order relating to Duncil was put in

place.

[10] On May 27, 2015, the State charged Sizemore with Level 6 felony residential

entry, Level 6 felony domestic battery in the presence of a child, and Level 6

felony neglect of a dependent. On June 29, 2015, the State amended the

charging information to include a charge of Level 4 felony unlawful possession

of a firearm by a serious violent felon. The State subsequently amended the

charging information a second time on August 5, 2015, to include two counts of

Class A misdemeanor invasion of privacy. Sizemore remained in custody while

awaiting trial.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 5 of 12 [11] While in custody, Sizemore made 726 calls to Duncil in violation of the no-

contact order. During the relatively few calls in which he successfully made

contact with Duncil, Sizemore instructed her not to appear at his trial, told her

that she would not get in trouble if she did not appear, indicated that she should

contact the prosecutor and recant her statement, and indicated that she should

convince Hartman and Troy to recant their statements regarding the events in

question. Sizemore also told Duncil that she should tell the Department of

Child Services that his conduct was not as serious as the witnesses said it was.

[12] On the morning of August 18, 2015, the date Sizemore’s trial was scheduled to

begin, Sizemore pled guilty to each of the charged offenses. In exchange for

Sizemore’s guilty plea, the State agreed that it would not request consecutive

sentences. The trial court subsequently sentenced Sizemore to an aggregate

term of twelve years. This appeal follows.

Discussion and Decision [13] On appeal, Sizemore contends that the trial court abused its discretion in

sentencing him. Sentencing decisions rest within the sound discretion of the

trial court and are reviewed on appeal only for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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. (quotation omitted).

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 6 of 12 One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.

Id. at 490-91.

[14] In challenging the trial court’s sentencing order, Sizemore claims that the trial

court abused its discretion by failing to consider certain proffered mitigating

factors. The finding of mitigating factors is discretionary with the trial court.

Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535

N.E.2d 1152, 1155 (Ind. 1989)). The trial court is not required to find the

presence of mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155).

Further, the trial court is not required to weigh or credit the mitigating evidence

the way appellant suggests it should be credited or weighed. Id. (citing

Hammons v. State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if 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. Id. (citing Hammons, 493 N.E.2d at 1254-55).

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 7 of 12 A. Sizemore’s Guilty Plea [15] Sizemore claims that the trial court abused its discretion by failing to find the

fact that he pled guilty to be a mitigating factor at sentencing. “[A]lthough we

have long held that a defendant who pleads guilty deserves ‘some’ mitigating

weight to be given to the plea in return, a guilty plea may not be significantly

mitigating when the defendant receives a substantial benefit in return or when

the defendant does not show acceptance of responsibility.” McElroy v. State, 865

N.E.2d 584, 591 (Ind. 2007) (citations omitted).

[16] In the instant matter, Sizemore’s decision to plead guilty seems to represent a

tactical decision rather than a sincere display of remorse. The trial court noted

its belief that Sizemore did not plead guilty prior to the morning of trial because

Sizemore was “banking on the victim and the witnesses not coming to court,

because [Sizemore] directed them multiple times not to come to court.” Tr. p.

92. Further, the trial court specifically stated that it did not find Sizemore to be

remorseful. The trial court noted that Sizemore was not truly taking

responsibility for his actions as he continued to blame Duncil for his actions.

The trial court further noted that Sizemore continued to make threatening

comments to Duncil, including telling her that it would be “[w]ay worse when

[he] [got] out” if she did not follow his instruction to fail to appear at his trial.

Tr. p. 93. The record also demonstrates that Sizemore benefitted from this

tactical decision as the State agreed that it would not seek consecutive sentences

in exchange for Sizemore’s guilty plea.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 8 of 12 [17] In addition, we recognize that the Indiana Supreme Court has held that a

defendant generally deserves to benefit when his guilty plea spares the victim of

the trauma of a trial and the State of the need to expend considerable time,

resources, and effort to prepare for trial. See Sensback v. State, 720 N.E.2d 1160,

1164 (Ind. 1999). Here, however, Sizemore did not enter into his guilty plea

until the morning of trial. Thus, while spared of need to actually testify during

trial, Duncil was not spared of the trauma associated with preparing for trial.

Likewise, Sizemore’s decision to plead guilty did not spare the State of the need

to expend the necessary time, resources, and effort to prepare for trial.

[18] Review of the record indicates that, contrary to Sizemore’s claim on appeal, the

trial court did consider Sizemore’s guilty plea in sentencing Sizemore. In light

of the seemingly tactical nature of Sizemore’s decision to plead guilty coupled

with the trial court’s determination that Sizemore lacked remorse and did not

seem to truly accept responsibility for his actions, we conclude that Sizemore

has failed to demonstrate that his guilty plea warranted significant mitigating

weight.

B. Potential Hardship on Sizemore’s Dependents [19] Sizemore also claims that the trial court abused its discretion by failing to

consider his “expressed concern for being away from his young children for a

lengthy incarceration” and the potential hardship a lengthy incarceration would

have on his family. Appellant’s Br. p. 11. We have previously concluded that a

trial court “is not obligated to find a circumstance to be mitigating merely

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 9 of 12 because the defendant advances it.” Benefield v. State, 904 N.E.2d 239, 247 (Ind.

Ct. App. 2009) (citing Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007)).

More specifically, as Sizemore acknowledges, a trial court is not required to

find that a defendant’s incarceration would result in undue hardship on his

dependents. Id. In reaching this conclusion, we observed that “[m]any persons

convicted of crimes have dependents and, absent special circumstances showing

that the hardship to them is ‘undue,’ a trial court does not abuse its discretion

by not finding this to be a mitigating factor.” Id. In order for the hardship to

the dependent to be “undue,” there must be special circumstances that make the

burden on the dependent unusual. See generally, id. at 247-48.

[20] Sizemore claims that the trial court abused its discretion by failing to even

consider his claimed concern about the potential hardship that his incarceration

would have on his children. The record reveals, however, that the trial court

considered and rejected Sizemore’s expressed concern in sentencing Sizemore.

The trial court noted that Sizemore committed some of the violent acts at issue

in front of one of his children. The trial court also noted that Sizemore “felt

free to use his mother and his children … to communicate with the victim after

being served with the no-contact order.” Tr. p. 91. In expressing concern for

Sizemore’s apparent willingness to use his mother and children in this way, the

trial court stated the following:

This tells me, sir, that you’re willing to put your mother in jeopardy of arrest, you’re willing to put your children in a very bad position, communicating things to their mother. And I note, in one of the jail calls, you talked to a little boy and you tell him,

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 10 of 12 “Make sure mom doesn’t have any dudes around,” uh, tell him he’s the man of the house, and we’re talking about a little boy. So you’re putting responsibility to watch for mom’s boyfriends on a little child.

Tr. p. 91. The trial court also noted the in threatening Duncil, Sizemore had

indicated that his threat was “a promise on my kids.” Tr. p. 93. In mentioning

this statement, the trial court explained: “And that tells me what you think of

your children as well. You say that they mean the world to you here today, I

see you using them as a threat to the victim.” Tr. p. 93. These statements

indicate that the trial court considered Sizemore’s claimed concern for his

family.

[21] The record also reveals that both Sizemore’s mother and Duncil would be

available to care for the children during Sizemore’s incarceration. The record

further reveals that Sizemore was largely unemployed at the time of his arrest.

Duncil, on the other hand, was employed and provided for the family.

Sizemore fails to explain how his incarceration would impede Duncil’s ability

to continue to care and provide for the children.

[22] It is clear from the record that the trial court considered Sizemore’s claimed

concern for the impact that his incarceration would have on his children, but

that it simply did not afford Sizemore’s claim with the mitigating weight

Sizemore believed it should have. Again, “[a] trial court is not obligated to

weigh or credit the mitigating factors the way a defendant suggests they should

be weighed or credited.” Jones v. State, 790 N.E.2d 536, 540 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 11 of 12 2003) (citing Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000)). Sizemore

has again failed to demonstrate that his claim is both significant and clearly

supported by the record or that it warranted significant mitigating weight.

Conclusion [23] In sum, Sizemore has failed to demonstrate that either of the above-discussed

proffered mitigating factors were both (1) significant and clearly supported by

the record or (2) warranted significant mitigating weight. As such, we conclude

that the trial court did not abuse its discretion in sentencing Sizemore.

[24] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A02-1511-CR-1918 | May 24, 2016 Page 12 of 12