Gary L. Allgood v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 11 2019, 10:37 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Office of the Lake County Public Attorney General of Indiana
Defender – Appellate Division J.T. Whitehead
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary L. Allgood, February 11, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1916
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-1712-F2-16
Mathias, Judge.
[1] Gary Allgood (“Allgood”) was convicted in Lake Superior Court of Level 5
felony robbery and Level 6 felony intimidation and ordered to serve an
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aggregate six-year sentence, with five years and three months to be served in the
Department of Correction and nine months to be served in community
corrections. Allgood appeals and raises two issues, which we restate as:
I. Whether Allgood knowingly, voluntarily, and intelligently waived his right
to counsel; and,
II. Whether his aggregate six-year sentence is inappropriate in light of the
nature of the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] On December 4, 2017, at approximately 4:30 p.m., Miriam Eckenrode
(“Miriam”) was grocery shopping at Aldi in Hammond, Indiana. Miriam
noticed Allgood in the store parking lot as she walked into Aldi. Allgood was
walking back and forth while speaking on his cell phone.
[3] Miriam completed her grocery shopping and returned to her vehicle, placing
her groceries on the front passenger seat. As Miriam began to sit down in the
driver’s seat of her vehicle, Allgood opened the front passenger side door and
leaned into the car. Allgood had his hand in his pocket and pointed at Miriam.
He threatened Miriam and stated, “don’t make me blow your brains out here in
this parking lot.” Tr. Vol. II, p. 104. Miriam believed that Allgood had a
weapon in his pocket.
[4] Miriam tried to give Allgood her purse, but he refused to take it. Instead,
Allgood demanded that Miriam drive him to an unknown location. Miriam
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told Allgood to take her car. Allgood threatened her again and then told her to
shut her car door. Id. at 108.
[5] Miriam saw a woman nearby, later identified as Meiko Cook (“Cook”), loading
groceries into her car. Miriam got out of her vehicle and ran toward Cook
yelling “call the police.” Id. at 110. Allgood followed Miriam calling her
“Alice.” Id. at 163. Allgood told Cook that Miriam was under the influence of
drugs and that she owed him money. Id. at 164. Miriam gave Allgood a few
dollars, told Cook to run, and then she walked into Aldi. Allgood apologized to
Cook and told her that “Alice” had taken Xanax and he just wanted his money.
Id. at 165. Allgood then walked away from Aldi toward Walmart.
[6] Cook went back inside Aldi to return her cart. She saw Miriam, asked if she
was okay, and learned that the police had been called. Both Miriam and Cook
gave a description of Allgood to the police. A police officer found a person
matching Allgood’s description nearby. Miriam and Cook were taken to
Allgood’s location, and they both identified Allgood as the man in the parking
lot who demanded money from Miriam.
[7] On December 6, 2017, the State charged Allgood with Level 2 felony attempted
kidnapping, Level 5 felony robbery, Level 6 felony intimidation, and Class A
misdemeanor theft. On June 5, 2018, during a pre-trial conference, Allgood
informed the trial court that he wanted to proceed pro se. The trial court
advised Allgood of the disadvantages of self-representation and informed him
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that he would be held to the same standard as an attorney. The court urged
Allgood to speak with his attorney and think about whether to proceed pro se.
[8] Allgood then filed a written motion to proceed pro se, and the trial court held a
hearing on his motion on June 7, 2018. The court advised Allgood that
if you’re going to represent yourself at that trial, I have to tell you
that you are held to the same standards as that of an attorney. So
you have to know trial procedure. You have to know . . . the
difference between direct examination and cross examination. I
mean, leading and non-leading questions, the appropriate
objections. You have to follow the Rules of Evidence. I am not
required to give you any leeway, because you don’t have the
same legal education as the prosecuting attorney will have. [The
prosecutor] has been here for quite some[]time, and he is very
thorough. So in your presentation of this case, I don’t know if
you’re going to know how to object, when to object. If he’s
introducing evidence, if you know the proper foundation. If you
know how to question witnesses and engage in proper cross
examination and impeachment. . . . If you’ve got great evidence
and you don’t know how to get it out, that’s too bad for you. . . .
I can’t imagine that you not having gone to law school or studied
or been trained in trial advocacy could even come close to
matching an attorney with the lowest level of skill.
Tr. Vol. II, pp. 26–28. After Allgood continued to insist on proceeding pro se,
the trial court granted his motion. The court also appointed Allgood’s former
attorney as standby counsel.
[9] A jury trial was held on June 11–12, 2018. The jury acquitted Allgood of
attempted kidnapping, but he was found guilty of the robbery, intimidation, and
theft charges.
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[10] At the July 10, 2018 sentencing hearing, the trial court merged the theft and
robbery charges. The court then found the following aggravating circumstances:
1) the victim’s harm, injury, and loss were greater than the elements necessary
to prove the commission of the offense, 2) Allgood’s criminal history, including
eight prior felony convictions, and 3) that Allgood is in need of correctional
rehabilitative treatment that can only be provided by a penal facility. Tr. Vol.
III, p. 101. The trial court found that Allgood’s attempt to avail himself of two
jail programs was the only mitigating circumstance. Allgood was ordered to
serve concurrent terms of six years, with nine months to be served in work
release, for the robbery conviction and two and one-half years for the
intimidation conviction. Allgood now appeals.
Waiver of Counsel
[11] Allgood claims that the trial court “failed to perform a sufficient analysis of
whether the waiver of his constitutional right to counsel was made knowingly,
voluntarily, and intelligently.” Appellant’s Br. at 7. A defendant in a criminal
case has a constitutional right under the Sixth Amendment to proceed without
the assistance of counsel. Faretta v. California, 422 U.S. 806, 821 (1975) (holding
that “[t]he Sixth Amendment . . . implies a right of self-representation”). The
trial court is in the best position to assess whether a defendant has the ability
and willingness to proceed pro se. See Edwards v. State, 902 N.E.2d 821, 824
(Ind. 2009); Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001).
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[12] The trial court “must determine that the defendant’s waiver of counsel is
knowing, voluntary, and intelligent.” Wilson v. State, 94 N.E.3d 312, 320 (Ind.
Ct. App. 2018). There are no “talking points” a trial court is required to use, but
it must advise a defendant of the “dangers and disadvantages of proceeding
without counsel” and “come to a ‘considered determination’ that the defendant
is making a knowing, voluntary, and intelligent waiver of his right to counsel.”
Id. at 320–21 (citing Poynter, 749 N.E.2d at 1126).
[13] To determine whether a waiver of trial counsel was made voluntarily and
intelligently, our court must consider (1) the extent of the court’s inquiry into
the defendant’s decision, (2) other evidence of record that establishes whether
the defendant understood the dangers and disadvantages of self-representation,
(3) the background and experience of the defendant, and (4) the context of the
defendant’s decision to proceed pro se. Hopper v. State, 957 N.E.2d 613, 618
(Ind. 2011). We review the trial court’s conclusion that a defendant knowingly
and voluntarily waived the right to counsel de novo. Hart v. State, 79 N.E.3d
936, 940 (Ind. Ct. App. 2017).
[14] Here, the trial court held two hearings concerning Allgood’s request to proceed
pro se. At both hearings, Allgood was advised of the dangers of self-
representation, and the court repeatedly reminded Allgood that attorneys have
specialized training that Allgood lacks. For example, the court stated:
Now, if you’re going to represent yourself at that trial, I have to
tell you that you are held to the same standards as that of an
attorney. So you have to know trial procedure. You have to
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know . . . the difference between direct examination and cross
examination . . . , leading and non-leading questions, the
appropriate objections. You have to follow the Rules of
Evidence. I am not required to give you any leeway, because you
don’t have the same legal education as the prosecuting attorney
will have. Mr. Bruno has been here for quite some[]time, and he
is very thorough. So in your presentation of this case, I don’t
know if you’re going to know how to object, when to object. If
he’s introducing evidence, if you know the proper foundation. If
you know how to question witnesses and engage in proper cross
examination and impeachment.
Tr. Vol. II, pp. 26–27.
[15] The trial court advised Allgood if he did not understand how to impeach a
witness or establish a foundation for admitting exhibits into evidence, he should
not represent himself at trial. Id. at 13. And the court repeatedly instructed
Allgood that he would be held to the same standard as an attorney.
[16] At the first hearing, the trial court advised Allgood to think about his request to
proceed pro se and to seek advice from his appointed counsel. The trial court
questioned Allgood about his mental health and determined that he does not
suffer from any mental disease or defect. Id. at 14. Allgood informed the court
that he graduated from high school and attended three years of college. And
Allgood has significant experience with the criminal justice system. At the
second hearing, the trial court granted Allgood’s motion to proceed pro se after
he continued to insist that he wanted to represent himself.
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[17] Allgood complains that he should not have been permitted to proceed pro se
because he demonstrated that he did not understand the nature of the attempted
kidnapping charge (of which he was acquitted), how to impeach a witness, or
lay a foundation to admit evidence. But the trial court repeatedly told Allgood
that if he did not understand how to conduct himself as a trained attorney, he
should not represent himself. Allgood ignored the trial court’s warning and
continued his request to proceed pro se. For all of these reasons, we conclude
that Allgood’s waiver of counsel was knowing, intelligent, and voluntary.
Inappropriate Sentence
[18] Allgood also claims that his aggregate six-year sentence is inappropriate in light
of the nature of the offense and the character of the offender. Indiana Appellate
Rule 7(B) provides that “[t]he Court may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” In conducting our review, “[w]e do not look to determine if
the sentence was appropriate; instead we look to make sure the sentence was
not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
“[S]entencing is principally a discretionary function in which the trial court’s
judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008).
[19] Thus, although we have the power to review and revise sentences, the principal
role of appellate review should be to attempt to “leaven the outliers, and
identify some guiding principles for trial courts and those charged with
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improvement of the sentencing statutes, but not to achieve a perceived ‘correct’
result in each case.” Id. at 1225. It is Allgood’s burden on appeal to establish
that his sentence is inappropriate. Grimes v. State, 84 N.E.3d 635, 645 (Ind. Ct.
App. 2017), trans. denied.
[20] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Allgood
received the maximum six-year sentence for his Level 5 felony robbery
conviction. See I.C. § 35-50-2-6(b). His concurrent term of two and one-half
years for Level 6 felony intimidation is also the maximum allowable sentence.
See I.C. § 35-50-2-7(b). Citing Hamilton v. State, 955 N.E.2d 723, 727 (Ind.
2011), Allgood argues that the maximum sentence “should be reserved for the
worst of the worst,” and “this case does not fit that description.” Appellant’s Br.
at 13.
[21] Concerning the nature of the offense, Allgood argues that he did not have a
weapon, no one suffered physical injury, and Miriam’s financial loss was not
significant. We acknowledge those facts but also observe that Miriam has
suffered significant and lasting emotional trauma as a result of Allgood’s
crimes. She suffers from panic attacks, sleepless nights, and fear of leaving her
home after dark. Tr. Vol. III, pp. 81–82. Miriam also stated that she has
suffered financially because she is “unable to work in public this summer due to
the anxiety[.]” Id. at 82. In addition, the stress caused by Allgood’s offenses has
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aggravated her preexisting neurological condition, and she has incurred
additional medical expenses not covered by her insurance. Id.
[22] Allgood also argues that his “character does not constitute the worst” because
he “comported himself well during trial” and he has secured two jobs so that he
can be a productive member of society. Appellant’s Br. at 13. But Allgood’s
criminal history is significant and reflects poorly on his character.
[23] Fifty-one-year-old Allgood has spent much of his adult life on probation or in
prison. In 1987, he was convicted of felony passing forged instruments in Texas
and sentenced to ten years. In 1989, Allgood was convicted of two felony
robberies in Illinois and sentenced to serve three years in the Illinois
Department of Corrections. In 1992, he was convicted of felony aggravated
criminal sexual assault, felony armed violence, and felony home invasion in
Illinois and ordered to serve twenty years in the Illinois Department of
Corrections. In 1993, Allgood was convicted in Illinois of felony obtaining
substance by fraud. In 2009 and 2010, he was convicted of misdemeanor
domestic assault and four misdemeanor domestic batteries for offenses that
occurred in 2007 and 2009. And in 2010, Allgood was convicted of felony
burglary and sentenced to twelve years in the Illinois Department of
Corrections. Allgood’s criminal history establishes his poor character and
inability to lead a law-abiding life.
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[24] For all of these reasons, we conclude that Allgood’s six-year aggregate sentence
is not inappropriate in light of the nature of the offense and the character of the
offender.
Conclusion
[25] Allgood knowingly, intelligently, and voluntarily waived his right to counsel.
And his six-year aggregate sentence is not inappropriate.
[26] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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