Michael D. English v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Feb 14 2014, 9:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL D. ENGLISH, )
)
Appellant-Defendant, )
)
vs. ) No. 45A04-1306-CR-322
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
Cause No. 45G04-1104-FC-42
February 14, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Michael English appeals his sentence for one count of Class D felony trespassing
and one count of Class A misdemeanor possession of marijuana. We affirm.
Issue
English raises one issue, which we restate as whether his sentence is inappropriate
under Indiana Appellate Rule 7(B).1
Facts
On the morning of March 30, 2011, Gary Police Department officers were
dispatched to Riley School. The school was vacant and no longer in use but it had been
locked and secured, and no one had permission to enter it. Upon arriving at the school,
officers noticed that a window at the rear of the building had been broken out, and they
could hear banging sounds coming from inside. Inside the building, officers found English,
Lorenzo Blakely, and Jeremy Calo together in a room. Calo was smashing a computer
monitor with an ax, while English and Blakely were standing near some tools, including
screwdrivers, wrenches, hammers, and a flashlight. Several other computer monitors in
the room had also been damaged. Officers placed English, Blakely, and Calo under arrest.
A search incident to arrest revealed that English was in possession of marijuana.2
1
English’s attorney refers in his brief to the “manifestly unreasonable” standard of review for sentences
under Indiana Appellate Rule 17(B). The “manifestly unreasonable” standard for reviewing sentences and
Appellate Rule 17(B) were replaced eleven years ago with the “inappropriate” standard under Appellate
Rule 7(B). We urge counsel to be more careful in the future in preparing briefs to this court.
2
The factual basis for English’s guilty plea was very sparse and did not include these details of the offenses,
which come from the probable cause affidavit. We relied upon the probable cause affidavit to provide these
additional details because it was attached to the presentence report as an exhibit that described the
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The State charged English with Class C felony burglary, Class D felony trespassing,
and Class A misdemeanor possession of marijuana. English agreed to plead guilty to Class
D felony trespassing and Class A misdemeanor possession of marijuana, and the State
agreed to dismiss the burglary charge. Sentencing was left to the trial court’s discretion.
At the sentencing hearing, English attempted to argue that he thought he had permission to
enter Riley School because he was interested in possibly purchasing the property from the
Gary School Corporation through a middleman. The trial court imposed a sentence of
twenty-eight months for the trespassing conviction and one year for the marijuana
conviction, to be served concurrently. English now appeals.
Analysis
We will assess whether English’s sentence is inappropriate under Appellate Rule
7(B) in light of his character and the nature of the offense. Although Rule 7(B) does not
require us to be “extremely” deferential to a trial court’s sentencing decision, we still must
give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial court brings
to its sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading
the appellate court that his or her sentence is inappropriate.” Id.The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
circumstances of English’s offenses, and English did not object to the presentence report or state that it had
any errors. See Slade v. State, 942 N.E.2d 115, 117 (Ind. Ct. App. 2011), trans. denied.
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Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a given case. Id.
at 1224.
At the outset, we observe that English focuses his sentencing argument exclusively
upon the sentence he received for Class D felony trespassing. 3 English received an
aggregate sentence that is ten months longer than the advisory and eight months less than
the maximum for a Class D felony. See Ind. Code § 35-50-2-7. However, this aggregate
sentence also reflects the concurrent one-year sentence English received for Class A
misdemeanor possession of marijuana. English improperly ignores his conviction and
sentence for possession of marijuana in arguing that his sentence is excessive.
Regarding the nature of the offense, English entered a vacant school without
permission, accompanied by someone who was smashing computers inside the building.
English attempted to minimize his culpability for this offense at the sentencing hearing
with an explanation that he was interested in purchasing the building and thought he had
permission to be inside of it. The State objected to this explanation because English had
never before attempted to argue or present any evidence that he was attempting to purchase
the building; no documentation was entered into evidence to support such a claim.
3
Trespassing is ordinarily a Class A misdemeanor, but is elevated to a Class D felony when it is committed
on school property. See Ind. Code § 35-43-2-2(a).
4
Moreoever, the evidence indicates that English and his cohorts had to force their way into
the building and proceeded to destroy property once they were inside. English’s purported
explanation for why he was in the building is dubious, to say the least, in light of this
evidence. English also was in possession of marijuana at the time of the break-in, despite
having repeated legal difficulties in the past related to that drug.
On that point, related to English’s character, he has an extensive criminal history.
He has a 2000 federal felony conviction for distribution of marijuana and twice had his
supervised release for that offense revoked. In Indiana, he has a 2005 conviction for Class
A misdemeanor possession of marijuana and had his probation revoked for that offense.
He has 2010 convictions for Class D felony possession of marijuana and Class C
misdemeanor operating a vehicle with a controlled substance in his blood, and he violated
his probation for those offenses twice based upon testing positive for marijuana. He also
has a 2006 conviction for Class C misdemeanor operating a vehicle without having ever
received a license and a 2011 conviction for Class A misdemeanor driving while
suspended. In addition to his multiple convictions and probation revocations related to
marijuana, he stated to the probation officer preparing the presentence report that he began
smoking marijuana at age eight and often smoked it “all day, everyday,” although he had
recently decreased his usage to “two to three blunts per day.” App. p. 67. Thus, apart from
his formal convictions, English disregarded the laws regarding marijuana on a regular and
ongoing basis, which reflects very poorly upon his character. See Roney v. State, 872
N.E.2d 192, 207 (Ind. Ct. App. 2007), abrogated on other grounds by Bethea v. State, 983
N.E.2d 1134 (Ind. 2013). Also, although English claimed at the sentencing hearing (which
5
occurred a few months after preparation of the presentence report) that he had recently quit
smoking marijuana, there is no need to accept this claim at face value, given English’s long
history with the drug.
It is true that English pled guilty, which normally weighs in a defendant’s favor in
sentencing. See Anglemyer v. State, 875 N.E.2d 218, 220 (Ind. 2007). That weight is
considerably lessened, however, when the defendant receives a substantial benefit in
exchange for the plea. Id. at 221. Here, not only did the State agree to dismiss the Class
C felony burglary charge in the instant case in exchange for his plea, it also agreed to
dismiss a pending charge for Class C felony dealing in marijuana under a different cause
number. English received a significant benefit in exchange for his plea.
English also contends his sentence will work a hardship upon his three children, for
whom he claims to pay $11,000 per year in child support. English claimed in the
presentence report to earn anywhere from $5000 to $30,000 per month from self-
employment, ranging from breeding and selling dogs, selling chickens and fish from a
farm, scrapping metal, and renting out property. There is no documentary or corroborating
evidence for English’s claimed sources of income or that he pays $11,000 per year in child
support.
In any event, hardship to one’s children is not a reason for reducing a sentence unless
there are clearly “special circumstances” that would make the hardship worse than that
suffered by any child whose parent is incarcerated. See Roney, 872 N.E.2d at 204-05. We
see no such “special circumstances” here. Instead, in light of English’s extensive criminal
6
history and the fact that he committed two offenses in the present case, we cannot say that
an aggregate sentence of twenty-eight months is inappropriate.
Conclusion
English’s aggregate sentence of twenty-eight months is not inappropriate. We
affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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