Thomas Walter Gorski v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Aug 27 2014, 9:22 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:
BENJAMIN LOHEIDE GREGORY F. ZOELLER
Law Office of Benjamin Loheide Attorney General of Indiana
Columbus, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS WALTER GORSKI, )
)
Appellant-Defendant, )
)
vs. ) No. 03A04-1404-CR-148
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1306-FA-3235
August 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Thomas Walter Gorski appeals the twenty-eight-year aggregate sentence the trial
court imposed for his convictions of neglect of a dependent resulting in serious bodily
injury, a Class B felony, Indiana Code § 35-46-1-4 (2012); and attempted dealing in a
narcotic drug, a Class B felony, Ind. Code §§ 35-48-4-1 (2006), 35-41-5-1 (1977). We
affirm.
Rachel McCue and her then-seventeen-month-old son, Evan, moved into Gorski’s
Columbus, Indiana home on September 7, 2012. At that time, Evan’s father told McCue
that he objected to her leaving Evan alone with Gorski, expressing concern for the child’s
safety.
On the evening of November 25, 2012, police were dispatched to Gorski’s home
in response to a 911 call from McCue. Evan was not breathing, and one officer observed
that he had numerous bruises. Evan was transported to a hospital, where he was
pronounced dead.
A medical examiner determined that the cause of death was “blunt cranial-cerebral
trauma with basilar skull fracture and left-sided subdural hematoma.” Appellant’s App.
p. 46. The hematoma was not externally visible, but it covered “the entire left cerebral
hemisphere of his head,” to a depth of 1.2 centimeters. State’s Sentencing Ex. 6, p. 9. In
the medical examiner’s opinion, the grave symptoms of the injury would have been
obvious to “any reasonable caretaker,” but it might not have been fatal if treatment had
been sought immediately after the injury was inflicted. Tr. pp. 162-63.
The medical examiner further noted that Evan bore large numbers of bruises and
scratch marks on his head, chest, arms, legs, and back, some of which were older and
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healing while others were new. The medical examiner told police the only way Evan
could have accumulated those injuries is if he had been “unrestrained in a massive
automobile accident or being beat [sic] by an adult.” Id. at 165.
Subsequent investigation revealed that McCue had left for work at 10:00 p.m. on
November 24 and was gone until 8:00 a.m. on November 25. In her absence, Gorski was
Evan’s sole caretaker and also watched his two young children, who were staying the
night. When McCue came home, Evan was in a crib and Gorski said he had put him to
bed shortly before she arrived.
The mother of Gorski’s children stopped by at 4:00 p.m. to pick them up. Gorski
changed Evan’s diaper at that time and said he was “fine.” Id. at 41. McCue checked
Evan at 8:00 p.m., twelve hours after returning home, and discovered he was not
breathing. She called 911.
Gorski admitted to police that he abused hydrocodone and marijuana. McCue told
police that Gorski had smoked marijuana that was laced with Fentanyl, a narcotic, right
before she left for work on November 24. Gorski gave the police a blood sample, which
contained cannabinoids and Fentanyl. He had a prescription for the Fentanyl.
In addition, the police searched Gorski’s computer. They found an online
discussion between Gorski and another person that had taken place on the night of
November 24, when Gorski was watching Evan and his children. Gorski attempted to
convince the other person to come to his home and trade marijuana for a Fentanyl patch.
The deal fell apart because Gorski insisted that the person consume the Fentanyl at his
home, and the person wanted to take the patch to his own residence.
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Gorski could not explain Evan’s skull fracture. He hypothesized that some of
Evan’s scrapes and bruises happened when Evan fell off of a bed or jumped out of a
bathtub. None of the injuries were consistent with these claims.
The State charged Gorski with neglect of a dependent resulting in death, a Class A
felony; attempted dealing in a narcotic drug, a Class B felony; three counts of neglect of a
dependent, all Class C felonies; and dealing in a narcotic drug, a Class B felony. The
parties entered into a plea agreement. Gorski agreed to plead guilty to neglect of a
dependent resulting in serious bodily injury as a Class B felony, a lesser included offense
of the Class A felony, and to plead guilty to attempted dealing in a narcotic drug. The
State agreed to dismiss the remaining charges.
The trial court accepted the plea agreement. The court sentenced Gorski to sixteen
years for neglect of a dependent and twelve years for attempted dealing, to be served
consecutively for an aggregate sentence of twenty-eight years. This appeal followed.
Gorski’s sole claim is that his sentence is inappropriate in light of his character.
Article seven, section four of the Indiana Constitution authorizes Indiana’s appellate
courts to independently review and revise sentences. This constitutional authority is
applied through Indiana Appellate Rule 7(B), which states that we may revise a sentence
only when it is “inappropriate in light of the nature of the offense and the character of the
offender.”
A defendant bears the burden of persuading this Court that the sentence meets the
inappropriateness standard. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013),
trans. denied. In conducting this review, our principal role is to leaven the outliers.
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Kennedy v. State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010). We give due consideration
to the trial court’s sentencing decision due to the court’s unique perspective. Id.At the time Gorski committed his crimes, the maximum sentence for a Class B
felony was twenty years, the minimum sentence was six years, and the advisory sentence
was ten years. Ind. Code § 35-50-2-5 (2005). Gorski received a sixteen-year sentence on
one count and a twelve-year sentence on the other, to be served consecutively, so both
sentences were above the advisory.
The nature of Gorski’s crime of neglect of a dependent is heinous. Gorski
consumed narcotic-laced marijuana before McCue left for work. Later, while Gorski was
responsible for Evan, Evan sustained a severe injury through a necessarily brutal and
callous act. Although Gorski pleaded guilty to neglect of a dependent resulting in serious
bodily injury, the effects of the crime were far worse than contemplated by the statute
because Evan died. Further, the medical examiner stated that the injury’s symptoms
would have been immediately obvious. Gorski stated that he checked on Evan
periodically after putting him to bed on the morning of November 25, so he should have
seen the injury.
In addition, as severe as Evan’s injury was, it may not have been fatal if Gorski
had immediately sought medical care. Instead, Gorski told McCue that Evan was fine
and failed to discover or to disclose the severe injury, thereby depriving Evan of any
chance of survival.
In addition to the skull fracture and resulting hematoma, Evan had accumulated a
large array of bruises and scrapes that could probably have resulted from being beaten.
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Gorski attempted to evade responsibility for the injuries by claiming that Evan had fallen
off a bed and had jumped out of a tub, but the medical examiner stated that such mishaps
could not have caused them.
Evan’s age is also a factor. Any unemancipated person under the age of eighteen
qualifies as a dependent for purposes of the crime of neglect. Ind. Code § 35-46-1-1(2007). Evan was nineteen months old when he died, and as such he was completely
unable to protect himself. This particularized factual circumstance justifies an enhanced
sentence. See Edwards v. State, 842 N.E.2d 849, 855 (Ind. Ct. App. 2006) (the victim’s
young age was a proper aggravating circumstance in a prosecution for neglect of a
dependent).
Turning to the nature of Gorski’s attempt to deal in a narcotic drug, he negotiated
the drug transaction online while he was solely responsible for three young children.
Further, Evan was awake at the time, because he and McCue were habituating Evan to
his mother’s work schedule. Gorski attempted to trade Fentanyl for marijuana, which he
had already used while the children were at his home.
Gorski’s character is also poor. He argues that his criminal record is minor
because his one prior conviction was for a Class B misdemeanor, and it occurred six
years before his current crimes. However, Gorski concedes that the crimes for which he
was being sentenced were much more grave in nature. Furthermore, he admitted to
repeatedly using a wide variety of controlled substances for many years, which undercuts
any claim to possessing a law-abiding character.
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Gorski also claims he is unlikely to reoffend. The record shows that he is not
particularly remorseful for his lengthy history of drug abuse or interested in ending his
cycle of drug abuse. In addition, at sentencing the trial court assessed Gorski’s “conduct
and demeanor” and concluded that Gorski had not taken responsibility for his crimes. Tr.
p. 201. As a result, we cannot agree that he is unlikely to reoffend.
Finally, Gorski points to his unstable and violent childhood and the death of his
mother in 2011 as factors justifying a revised sentence. Gorski was thirty-one years old
at sentencing. Evidence of a difficult childhood warrants little, if any, mitigating weight.
Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000). Further, the death of Gorski’s
mother cannot explain the extensive injuries Evan experienced, including the injuries that
caused his death. In addition, Gorski’s mother’s death cannot justify his attempt to deal
in a controlled substance. Gorski has failed to convince us that his sentence is
inappropriate.
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
MAY, J., and ROBB, J., concur.
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