Jordon P. Stroud v. State of Indiana (mem. dec.) ( 2016 )


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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 31 2016, 8:26 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                CLERK
    Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                       and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Donald C. Swanson, Jr.                                  Gregory F. Zoeller
    Deputy Public Defender                                  Attorney General of Indiana
    Fort Wayne, Indiana
    Lyubov Gore
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jordon P. Stroud,                                       October 31, 2016
    Appellant-Defendant,                                    Court of Appeals Case Nos.
    02A04-1606-CR-1355 and
    v.                                              02A03-1606-CR-1364
    Appeal from the Allen Superior
    State of Indiana,                                       Court
    Appellee-Plaintiff                                      The Honorable Wendy W. Davis,
    Judge
    Trial Court Cause Nos.
    02D04-1601-F6-68 and -91
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 1 of 8
    Case Summary
    [1]   Jordon P. Stroud brings separate appeals from the one and one-half year
    consecutive sentences imposed by the trial court in two cases, following his
    guilty pleas and convictions for level 6 felony domestic battery and level 6
    felony possession of a legend drug or precursor without a prescription. Because
    he was sentenced for these crimes simultaneously, we address Stroud’s two
    appeals in a single decision. The sole restated issue presented for our review is
    whether the trial court abused its discretion during sentencing. Finding no
    abuse of discretion in either case, we affirm the sentences.
    Facts and Procedural History
    [2]   Ashley Williamson and Stroud were in a three-year relationship and had one
    child together, S.S. On October 27, 2015, Stroud punched Williamson in the
    face with a closed fist in the presence of nine-month-old S.S. Stroud’s punch
    broke Williamson’s nose and caused her to bleed. While receiving treatment at
    a medical center, Williamson reported to staff that Stroud was intoxicated,
    “yanked her by the hair,” “punched her in the back of the head,” and punched
    her in the face. State’s Ex. 12.
    [3]   On January 15, 2016, Stroud was a passenger in a vehicle involved in a traffic
    stop. Stroud provided identification to the police officer involved. When the
    officer checked Stroud’s information, he learned that Stroud had an active
    warrant for his arrest based upon his altercation with Williamson. Stroud was
    arrested, taken into custody, transported to the Allen County Jail, and charged
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 2 of 8
    with level 6 felony domestic battery and level 6 felony battery under cause
    number 02D04-1601-F6-68 (“Cause 68”). During a search incident to his
    arrest, a gray plastic baggie tied in a knot fell out of Stroud’s right pant leg. The
    bag contained 12.4 grams of what was later identified as quetiapine fumarate.
    On January 22, 2016, the State charged Stroud with level 6 felony possession of
    a legend drug or precursor without a prescription under cause number 02D04-
    1601-F6-91 (“Cause 91”). 1
    [4]   On May 3, 2016, Stroud pled guilty to his crimes, and a consolidated
    sentencing hearing was scheduled for May 31, 2016. During the hearing, the
    trial court accepted Stroud’s guilty pleas, merged the level 6 felony battery
    count with the level 6 felony domestic battery count, and entered judgment of
    conviction for one count of level 6 felony domestic battery in Cause 68 and one
    count of level 6 felony possession of a legend drug or precursor without a
    prescription in Cause 91. The trial court sentenced Stroud to one and one-half
    years’ imprisonment on each conviction to be served consecutively. 2
    1
    Quetiapine fumarate qualifies as a legend drug because it is not a controlled substance but does require a
    prescription. Appellant’s App. Vol. II. at 10; see Ind. Code § 16-42-19-2.
    2
    The record indicates that, in addition to the foregoing crimes, Stroud was simultaneously sentenced for a
    probation violation under cause number 02D05-1506-F6-483. Although it appears that a notice of appeal has
    been filed in that case, an appeal has not yet been perfected in this Court, and Stroud states that he does not
    appeal that portion of his sentence. See Appellant’s Br. Cause 68 at 5 n.1 and Appellant’s Br. Cause 91 at 6
    n.1.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 3 of 8
    Discussion and Decision
    [5]   Sentencing decisions rest within the sound discretion of the trial court.
    Anglemyer v. State, 
    868 N.E.2d 482
    , 490 (Ind. 2007), clarified on reh’g, 
    875 N.E.2d 218
    . An abuse of that discretion occurs where the trial court’s 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 number of ways, including: (1)
    failing 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.
    “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 491.
    [6]   Trial courts imposing felony sentences must make statements which may be
    oral, written, or both. Gleason v. State, 
    965 N.E.2d 702
    , 711 (Ind. Ct. App.
    2012). Such statements must include a reasonably detailed recitation of the trial
    court’s reasons for imposing a particular sentence. 
    Anglemyer, 868 N.E.2d at 490
    . “This necessarily requires a statement of facts, in some detail, which are
    peculiar to the particular defendant and the crime, as opposed to general
    impressions or conclusions.” 
    Id. “The purpose
    of this rule is to guard against
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 4 of 8
    arbitrary sentencing and to provide an adequate basis for appellate review.”
    Webb v. State, 
    941 N.E.2d 1082
    , 1088 (Ind. Ct. App. 2011), trans. denied.
    [7]   Stroud argues that the trial court abused its discretion during sentencing by
    failing to enter a sufficient sentencing statement. Specifically, Stroud contends
    that the trial court failed to properly differentiate among the multiple cases for
    which it was imposing sentence. The trial court’s oral sentencing statement
    provided,
    All right, Mr. Stroud as I look to sentencing you this morning, I
    will note as a mitigating circumstance that you have pled guilty
    and that you showed remorse. Candidly, I think that’s
    overshadowed a bit by the fact of the aggravating circumstances
    in this case. If I look over your criminal history – and Mr.
    Swanson knows this, at 22 years old, it’s typically not my first
    instinct to send a 22-year-old down the river to the Indiana
    Department of Corrections. However, I look [at] your history,
    and I will take the facts and circumstances in this case, and I’m
    going to make them an aggravator. I read the probable cause
    affidavit which you told me was true and correct. I’ve reviewed
    the medical records as well as looked at the photos this morning.
    So the facts and circumstances in this particular matter, the
    Domestic Battery, is [sic] aggravating. Additionally, you have
    three juvenile delinquencies, all which would have been felonies
    if they were committed by you as an adult. You have one prior
    felony conviction and four prior misdemeanor convictions. Your
    misdemeanor suspended sentence has already been revoked
    once, and candidly, your prior felonies – well, what would have
    been a felony while in the juvenile system, I also find
    aggravating. You’ve got a Child Molesting as a Class B Felony,
    Child Molesting as a Class C Felony. You’ve already had a –
    you’ve had thefts, marijuana which is drugs. Candidly, that
    night you got caught with drugs that are really concerning to me
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 5 of 8
    and a legend in your pocket when you were arrested. I have no
    idea what you are doing with that, but I can – one can only
    assume. Most tellingly though or most aggravating to me is you
    were on probation which is a gift. Probation is a gift and while
    on probation you decided to pick up two more felonies, which
    are the two that are before me. I find that extremely aggravating.
    Prior attempts at rehabilitation have failed, and I take that as
    aggravating.
    Tr. at 10-12.
    [8]   Stroud complains that the trial court’s oral sentencing statement was primarily
    directed toward Cause 68 thereby creating confusion regarding which
    aggravating factors applied to Cause 68 and which aggravating factors, if any,
    applied to Cause 91. To the contrary, our review of the statement reveals that
    the trial court found mitigating factors (guilty plea and remorse) and
    aggravating factors (criminal history and failed attempts at rehabilitation) that
    clearly applied to each of Stroud’s crimes. The only aggravating factor that was
    applicable solely to Cause 68 was the nature and circumstances of the crime.
    See Gleason v. State, 
    965 N.E.2d 702
    , 711 (Ind. Ct. App. 2012) (nature and
    circumstances of the crime can be an aggravating factor). This was clearly
    articulated by the trial court, and we are not confused.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 6 of 8
    [9]    To the extent that Stroud claims that the trial court failed to properly explain its
    reasons for imposing enhanced and consecutive sentences, 3 this argument also
    fails. It is well settled that the trial court may rely on the same reasons to
    impose an enhanced sentence and also to impose consecutive sentences, and
    the court is under no obligation “to identify the aggravators that support
    consecutive sentences separately from the factors that support sentence
    enhancement.” Smith v. State, 
    770 N.E.2d 818
    , 821 (Ind. 2002). The sentencing
    statement here adequately explained the trial court’s reasons for imposing
    enhanced and consecutive sentences. 4
    [10]   We agree with Stroud that, during a consolidated sentencing hearing as
    occurred here, the best practice would have been for the trial court to articulate
    its reasons for sentencing each crime separately. Nevertheless, remand for
    resentencing is unnecessary. The purpose of the sentencing statement has been
    met in this case, as it has protected against arbitrary sentencing and has
    provided an adequate basis for our appellate review. See 
    Webb, 941 N.E.2d at 1088
    . Moreover, we can say with confidence that the trial court would have
    imposed the same sentence had its recitation been directed to each crime
    3
    The sentencing range for a level 6 felony is between six months and two and one-half years, with an
    advisory sentence of one year. Ind. Code § 35-50-2-7(b). Stroud was sentenced to one and one-half years for
    each crime, to be served consecutively.
    4
    Stroud also complains that the trial court failed to note any aggravating or mitigating factors in its written
    judgment of conviction. See Appellant’s App. at 11. However, our approach in reviewing sentences in non-
    capital cases is to examine both the written and the oral sentencing statements to discern the findings of the
    trial court. McElroy v. State, 
    865 N.E.2d 584
    , 589 (Ind. 2007). We have the option of crediting the statement
    that accurately pronounces the sentence or remanding for resentencing. 
    Id. Here, we
    choose to credit the
    trial court’s oral statement as reflecting the trial court’s findings regarding aggravating and mitigating factors.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 7 of 8
    separately. Therefore, we conclude that the trial court did not abuse its
    discretion during sentencing, and we affirm Stroud’s sentences.
    [11]   Affirmed.
    Kirsch, J., and May, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1355/02A03-1606-CR-1364 | October 31,
    2016                                                                                       Page 8 of 8
    

Document Info

Docket Number: 02A04-1606-CR-1355 and 02A03-1606-CR-1364

Filed Date: 10/31/2016

Precedential Status: Precedential

Modified Date: 11/1/2016