Agapito Diaz III v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Feb 17 2020, 9:57 am
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
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Agapito Diaz III, February 17, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1359
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela G. Warner
Appellee-Plaintiff. Sims, Judge
Trial Court Cause No.
48C01-1711-MR-2798
Najam, Judge.
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Statement of the Case
[1] Agapito Diaz III appeals his convictions following a jury trial for felony
murder, a felony; attempted murder, a Level 1 felony; attempted armed
robbery, as a Level 3 felony; unlawful possession of a firearm by a serious
violent felon, a Level 4 felony; and criminal recklessness, as a Level 5 felony.
Diaz presents the following issues for our review:
1. Whether his convictions for felony murder and attempted
armed robbery violate double jeopardy principles.
2. Whether his felony murder conviction can stand given that
the victim’s death was the result of a third party’s alleged
act of self-defense.
3. Whether the trial court abused its discretion when it
sentenced him.
4. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] During the evening of November 6, 2017, Joshua Steele went to Lindsay
Dowell’s house in Chesterfield. The two were on their way to Dowell’s
bedroom when Steele saw a gun lying on a bed in another bedroom. Steele also
saw Jalynn Harman sitting on the bed near the gun. Steele asked Dowell about
the gun, and she said that it belonged to her roommate, Diaz. Steele expressed
an interest in buying the gun. Diaz was in the shower at that time. When he
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got out of the shower, Dowell asked Diaz whether he would sell the gun Steele
had seen in his bedroom, and he said no.
[4] Diaz then entered Dowell’s bedroom and asked Steele whether Diaz “knew
[him] from somewhere.” Tr. Vol. 4 at 44. Steele denied ever having known
Diaz. But then Diaz said to Steele, “I think you tried to rob me before in the
past.” Id. at 45. Steele denied Diaz’ accusation, and then Steele displayed his
own gun to Diaz. Diaz left the bedroom.
[5] Approximately five minutes later, Diaz and Harman entered Dowell’s
bedroom, and each of them was holding a gun in each hand. Diaz and Harman
were pointing the guns at Steele, and Steele asked Diaz whether he would sell
any of the guns to him, and Diaz said no. Diaz then said to Steele, “You tried
to rob me you mother***er. You tried to rob me. You’re not going nowhere.
You ain’t leaving here alive.” Id. at 49. Diaz then told Steele to empty his
pockets and hand over his gun. Steele did not comply, and he tried to leave the
bedroom. Diaz repeated that he was going to kill Steele. Steele made his way
to the bedroom door and walked toward the front door to leave. As Steele tried
to unlock the door, Diaz struck him on the head with a gun.
[6] Steele then made his way toward the kitchen, and Diaz told Harman to take
Steele’s gun from him. But Harman was unable to disarm Steele. Steele made
his way back to Dowell’s bedroom, where Dowell was crying. Steele
positioned himself behind Dowell so that she was between him and Diaz and
Harman. Dowell pleaded with Diaz to let Steele leave, but he refused. Diaz
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then told Harman to give him one of her guns so that he could shoot Steele
without making as much noise. Dowell then said to Steele, “I don’t think
you[’re] gonna make it outta here,” and she left her bedroom. Id. at 61.
[7] Anticipating that Diaz was about to shoot him, Steele fired a few shots at Diaz
and Harman. As Steele left the bedroom, Harman exclaimed that she had been
shot. Diaz had also been shot. Steele finally made his way to the front door
and, as he left the house, he shot in Diaz’ direction. Diaz returned fire at Steele
as Steele got to his car. Diaz continued to fire shots as Steele drove away. One
of Diaz’ bullets struck a neighbor, Michael Swinford, injuring him. Harman
ultimately died as a result of her gunshot wounds.
[8] The State charged Diaz with felony murder, attempted murder, attempted
robbery resulting in serious bodily injury, attempted armed robbery, unlawful
possession of a firearm by a serious violent felon, and criminal recklessness. A
jury found Diaz guilty as charged. The trial court entered judgment of
conviction on all but the attempted robbery resulting in serious bodily injury
verdict and sentenced Diaz as follows: felony murder (sixty years); attempted
murder (thirty-five years); attempted armed robbery (twelve years); unlawful
possession of a firearm by a serious violent felon (six years); and criminal
recklessness (five years). The court ordered that Diaz’ sentences for felony
murder, attempted murder, and unlawful possession of a firearm would run
consecutively and concurrent with the sentences for attempted armed robbery
and criminal recklessness, for an aggregate term of 101 years executed. This
appeal ensued.
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Discussion and Decision
Issue One: Double Jeopardy
[9] Diaz first contends that his convictions for felony murder and the underlying
felony, namely, attempted armed robbery, violate double jeopardy principles,
and the State agrees. It is well settled that “[i]t is a violation of double jeopardy
principles to convict and sentence a defendant for both felony murder and the
underlying felony because the conviction for felony murder would necessarily
require proof of the underlying felony.” Stewart v. State, 945 N.E.2d 1277, 1285
(Ind. Ct. App. 2011) (citing West v. State, 755 N.E.2d 173, 186-87 (Ind. 2001)),
trans. denied.
[10] Here, the State concedes that Diaz’ convictions for felony murder and
attempted armed robbery violate double jeopardy because both convictions are
“based on [Diaz’] efforts to rob Steele[.]” Appellee’s Br. at 14. Thus, the State
avers that “[t]he appropriate remedy would be to remand to the trial court with
instructions to vacate the attempted armed robbery conviction.” Id. We agree,
and we remand and instruct the trial court to vacate Diaz’ conviction for
attempted armed robbery. 1
Issue Two: Felony Murder
[11] Diaz next contends that “felony murder should not apply when a person is not
killed by either the defendant on trial or an accomplice but rather by the victim
1
We note that Diaz’ aggregate sentence is unaffected by the vacation of this conviction.
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of the offense or some third party[.]” Appellant’s Br. at 16. Diaz acknowledges
that our Supreme Court has recently “refused to reconsider its holding in Palmer
v. State, 704 N.E.2d 124 (Ind. 1999)[,] which held that felony murder was
proper even though the person killed was killed by either the intended victim or
another third party but not by the defendant or an accomplice.” Id. at 15; see
Layman v. State, 42 N.E.3d 972, 977 (Ind. 2015). And, rather than present
cogent argument asking this Court to revisit our Supreme Court’s precedent,
Diaz states that this Court “has no authority to contravene controlling Supreme
Court precedent” and that he “makes the argument . . . so that the claim is
preserved for a petition to transfer.” Id. at 16.
[12] Without citation to the record, Diaz avers that “[t]he killing of Harman by
Steele was not a crime if in fact he was defending himself from an attempted
robbery. Yet [Diaz] is convicted of a murder which was in fact a legal act.” Id.
Diaz ignores our Supreme Court’s analysis in Layman reaffirming that a felony
murder conviction is appropriate where “an armed defendant engaged in
violent and threatening conduct, either as a principle or an accessory, that
resulted in the ‘mediate or immediate cause’ of a co-perpetrator’s death.” 42
N.E.3d at 979. Here, Diaz and Harman wielded two guns each and threatened
Steele, who responded by firing on Diaz and Harman, killing Harman. Diaz
does not ask us to distinguish the holding in Layman, and the evidence does not
support reversal of Diaz’ felony murder conviction under that precedent.
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Issue Three: Abuse of Discretion in Sentencing
[13] Diaz further contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions lie within the sound discretion of the trial court.
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[14] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[15] The sentencing range for a murder conviction is forty-five to sixty-five years,
with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3 (2019).
Diaz’ sentence for felony murder is sixty years. The sentencing range for a
Level 1 felony is twenty to forty years, with an advisory sentence of thirty years.
I.C. § 35-50-2-4. Diaz’ sentence for attempted murder is thirty-five years. The
sentencing range for a Level 4 felony is two to twelve years, with an advisory
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sentence of six years. I.C. § 35-50-2-5.5. Diaz’ sentence for unlawful
possession of a firearm by a serious violent felon is six years. And the
sentencing range for a Level 5 felony is one to six years, with an advisory
sentence of three years. I.C. § 35-50-2-6. Diaz’ sentence for criminal
recklessness is five years.
[16] Here, at sentencing, the trial court identified the following aggravating factors:
Diaz’ “extensive” criminal history; multiple victims; Diaz’ behavior in jail
awaiting trial and in the courtroom, showing “complete disdain for authority”;
and the nature and circumstances of the offenses, including the fact that these
were “completely senseless crimes” that resulted in the loss of an “innocent”
life. Tr. Vol. 7 at 126-127. And the court did not identify any mitigating
factors.
[17] Diaz asserts that the trial court abused its discretion when it identified as
aggravating circumstances his criminal history and that innocent lives were lost.
We address each contention in turn.
[18] Diaz first contends that the trial court mischaracterized his “minor” criminal
history as “extensive.” Diaz concedes that his criminal history includes “many
charges against” him, but he points out that “the only convictions shown are for
cocaine sale and possession in July of 2005, resisting arrest[,] assault and
battery[,] and malicious destruction of property in 2005, misdemeanor
possession of marijuana in 2007, robbery in 2016, [and] robbery in 2013.”
Appellant’s Br. at 19. Diaz suggests that the trial court improperly relied on his
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history of arrests, when no disposition was determined for many of those
arrests. But the trial court did not indicate that it relied on Diaz’ history of
arrests in identifying his criminal history as an aggravator.
[19] At sentencing, the trial court stated in relevant part as follows:
Not only does [Diaz] have [a] criminal history, the Court would
characterize the criminal history as extensive. [T]he character of
the criminal history also is concerning and continues to serve as
an aggravator as the criminal history continues to show behavior
involving drugs, firearms and violence, which were the same
issues that presented themselves in this particular case.
Tr. Vol. 7 at 126. Diaz was only thirty-two years old at the time of the instant
offenses, and his criminal history included three felony convictions, two of
which were for robbery, and five misdemeanor convictions, including battery
and resisting arrest. We cannot say that the trial court abused its discretion
when it identified Diaz’ criminal history as an aggravator.
[20] Diaz also contends that the trial court improperly found that more than one
person had died as a result of the instant offenses and that Harman was an
“innocent” life lost. At sentencing, the trial court stated as follows:
[L]ooking at the particular crime itself, I think the only thing that
really adequately describes the events that took place on that
night in November in Chesterfield in this community, completely
senseless crimes. Again, it’s reiteration, in our society of what
those that are involved in the drug community and that carry
firearms, what it escalates to and ultimately, people lose their
lives. Innocent people lose their lives, that being Ms. Harman in
this situation. The Court finds from the fact presented in this
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case, certainly was somewhat sucked into a situation and things
ran out of control extremely fast and she lost her life for it.
There’s nothing this Court can do today that will bring back that
loss to those that loved her and cared for her. Not only were
innocent lives lost, innocent members of our community were
terrorized by the events that took place over there um, in
Chesterfield on that night. Mr. Swinford, as he’s indicated to the
Court in his role and what he endured that night. Completely
unacceptable behavior in this community.
Id. at 127-28. We cannot agree with Diaz that the trial court abused its
discretion on this issue. While the trial court may have misspoke when it
referred to “innocent lives lost,” the court made clear that it was aware that
Harman was the only victim to lose her life in this instance. Id. Moreover,
while Harman acted in concert with Diaz in threatening Steele, the court
believed that she had been “sucked into” the situation as a less-than-willing
participant, and Diaz does not suggest that the evidence does not support the
court’s assessment. Id. Diaz certainly does not suggest that Harman deserved
to die for her actions. Diaz’ contention on this issue is without merit.
Issue Four: Inappropriate Sentence
[21] Finally, Diaz contends that his sentence is inappropriate in light of the offenses
and his character. 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.” This court has recently
held that “[t]he advisory sentence is the starting point the legislature has
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selected as an appropriate sentence for the crime committed.” Sanders v. State,
71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has
recently explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[22] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
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[23] On appeal, Diaz contends that his sentence is inappropriate in light of the
nature of the offenses and his character because the offenses “do not fall in the
category of the worst” of such offenses and because Diaz does not “fall in the
category of the worst offender.” Appellant’s Br. at 23. Diaz’ argument misses
the mark. First, it is of no moment that the nature of the offenses and Diaz’
character are not “the worst.” The trial court did not impose the maximum
sentence. Second, as the trial court found, the instant offenses were
“completely senseless,” and Diaz initiated and escalated the violent
confrontation with Steele, which resulted in Harman’s death and injured a
bystander. Finally, Diaz’ character is reflected by his criminal history and his
continued bad behavior in jail pending trial and in court during his trial. As the
trial court observed, Diaz “continues to show complete disdain for authority,
disdain for the order and process of this Court and for other rules and social
norms that we expect others in our society to abide by.” Tr. Vol. 7 at 126. We
cannot say that Diaz’ 101-year sentence is inappropriate in light of the nature of
the offenses and his character.
[24] Affirmed in part, reversed in part, and remanded with instructions.
Vaidik, J., and Tavitas, J., concur.
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