Julius L. Sapp v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 15 2020, 8:23 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Kelly M. Starling Attorney General of Indiana
Indianapolis, Indiana Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Julius Sapp, October 15, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-638
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Crawford,
Appellee-Plaintiff. Judge
The Honorable Amy Barbar,
Magistrate
Trial Court Cause No.
49G01-1907-F3-26746
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Julius Sapp (Sapp), appeals his sentence following his
conviction for armed robbery, a Level 3 felony, Ind. Code § 35-42-5-1(a)(1); and
battery by means of a deadly weapon, a Level 5 felony, I.C. §§ 35-42-2-1(c)(1); -
(g)(2).
[2] We affirm.
ISSUE
[3] Sapp presents the court with one issue, which we restate as: Whether the trial
court abused its discretion when it failed to identify certain proposed mitigating
circumstances.
FACTS AND PROCEDURAL HISTORY
[4] On June 19, 2019, Sapp telephoned Sterling Riggs (Riggs) purportedly to
arrange for the purchase of $50 worth of marijuana. Riggs was not acquainted
with Sapp but agreed to sell him the marijuana. Around 7:30 p.m., Riggs drove
his van to an address Sapp provided to him at an apartment complex located on
the west side of Indianapolis. Riggs parked his van when he spotted Sapp.
Riggs had brought a firearm with him which he placed on his lap.
[5] Sapp climbed into the passenger-side seat of Riggs’ van. Another man
accompanying Sapp remained outside the van. Sapp pointed a gun at Riggs
and told Riggs he was there to rob him. Riggs and Sapp began to fight in the
van. Riggs eventually fired a shot at Sapp, and the physical fighting continued.
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Sapp was able to disarm Riggs. The man who had accompanied Sapp picked
up Riggs’ gun and shot him in the leg. Riggs and Sapp continued to fight, with
Sapp getting the upper hand and Riggs’ gun. Sapp threatened to kill Riggs if he
did not let him take the van. Riggs directed Sapp to take the van, but Sapp fired
additional shots at Riggs, wounding him in the leg, hip, and arm. Sapp then
fled in Riggs’ van.
[6] Riggs was taken to the hospital where he was treated for his injuries, including
a shattered leg bone. Riggs supplied investigators with the cellphone number
Sapp had used to arrange the marijuana deal, and the cellphone number was
quickly linked to Sapp. Riggs subsequently identified Sapp from a
photographic array. Sapp was located and interviewed by police. Initially, he
denied being at the scene of the offenses. After further questioning, Sapp
admitted he had been present but claimed that Riggs had pulled a gun on him
and that he had acted in self-defense.
[7] On July 9, 2019, the State filed an Information, charging Sapp with Level 3
felony armed robbery; Level 4 felony unlawful possession of a firearm by a
serious violent felon; and Level 5 felony battery by means of a deadly weapon.
On January 15, 2020, the trial court convened Sapp’s one-day jury trial. The
jury found Sapp guilty of all charges. After the jury had rendered its verdicts,
the trial court granted the State’s motion to dismiss the Level 4 felony
possession of a firearm by a serious violent felon charge.
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[8] On February 4, 2020, Sapp’s presentence investigation report (PSI) was filed
with the trial court. In 2013, Sapp was convicted of Class B felony robbery, for
which he received a seven-year sentence, with 190 days executed and one year
suspended to probation. Sapp began his probation on September 26, 2016, and,
on March 20, 2017, the State filed a notice of violation of probation for failing
to submit to a drug screen, testing positive for cannabinoids, and failing to
comply with substance abuse treatment. Sapp’s probation was revoked, and
Sapp was sentenced to 180 days. After his release, Sapp was charged with
criminal trespass and marijuana possession in 2019, and was later convicted of
Class A misdemeanor possession of a controlled substance in a separate case.
[9] Sapp reported to his PSI investigator that he began consuming marijuana at the
age of thirteen and alcohol at the age of sixteen. By the time of his arrest on the
instant offense, Sapp reported that he was smoking marijuana daily and had
become addicted to “rollers,” which is a combination of cocaine,
methamphetamine, and ecstasy. (Appellant’s App. Vol. II, p. 146). Sapp
denied using heroin or prescription medications.
[10] Sapp’s PSI also revealed that he had never been in special education classes and
graduated from high school in 2010 with a 2.8 G.P.A. Sapp also played on his
high school’s basketball team. From the age of fifteen to nineteen, Sapp worked
in a fast food restaurant, and he continued to work in restaurants after he was
released from incarceration in 2018. Sapp rated his physical and mental health
as “fair.” (Appellant’s App. Vol. II, p. 146). Sapp reported being assaulted in
high school and having a seizure which resulted in his hospitalization. He was
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treated and released after two days. Sapp also reported having anger
management issues and depression during high school, and he participated in
anger management counseling in 2007 or 2008. Sapp had never been
prescribed any medication for his mental health.
[11] On February 25, 2020, the trial court held Sapp’s sentencing hearing. Sapp
filed a sentencing memorandum prepared by a Social Services Administrator
employed by the Marion County Public Defender Agency in which Sapp’s
substance abuse disorder, remorse, traumatic brain injury, and undue hardship
to his children were advanced as mitigating circumstances. In the unverified
sentencing memorandum, it was represented to the trial court that Sapp had
been taking opioids daily and that he had experienced withdrawal in jail. The
sentencing memorandum also asserted that Sapp had experienced a traumatic
brain injury in 2006 and that such injuries may lead to aggressive behavior.
[12] At Sapp’s sentencing hearing, Riggs’ impact statement was read into the record.
To Riggs the offenses were “a life changing experience” which had left him
unable to walk without assistance, unable to work, and in constant pain.
(Transcript p. 240). Riggs faced another surgery to attempt to rectify the
injuries to his leg. In his allocution, Sapp apologized to Riggs and asked the
trial court for leniency. The trial court found as an aggravating circumstance
that Sapp had shot Riggs four times without justification, even when Riggs was
on the ground. The trial court also found Sapp’s criminal record since his
recent release from the Department of Correction to be aggravating, including
his two arrests, conviction for possession of a controlled substance, and his
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separate pending case for unlawful possession of a firearm by a serious violent
felon. The trial court found as the sole mitigating circumstance that long-term
imprisonment would be a hardship to Sapp’s dependents. The trial court found
that the aggravating circumstances outweighed the mitigating circumstances
and sentenced Sapp to ten years, with one year suspended to probation, for his
Level 3 felony armed robbery conviction. The trial court sentenced Sapp to
three years for his Level 5 felony battery by means of a deadly weapon
conviction, to be served concurrently, for an aggregate sentence of ten years.
[13] Sapp now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[14] Sapp contends that the trial court abused its discretion when it failed to
recognize his additional proffered mitigators. So long as a sentence imposed by
a trial court is within the statutory range for the offense, it is subject to review
only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of the trial
court’s sentencing discretion occurs if its 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 abuses
its discretion when it fails to enter a sentencing statement at all, its stated
reasons for imposing sentence are not supported by the record, its sentencing
statement omits reasons that are clearly supported by the record and advanced
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for consideration, or its reasons for imposing sentence are improper as a matter
of law. Id. at 490-91.
II. Mitigating Circumstances
[15] Sapp contends that the trial court abused its discretion when it failed to
recognize his substance abuse, remorse, and traumatic brain injury as
mitigating circumstances. “An allegation that the trial court failed to identify or
find a mitigating factor requires the defendant to establish that the mitigating
evidence is both significant and clearly supported by the record.” Id. at 493.
However, if a trial court does not recognize a mitigating circumstance that was
advanced for its consideration, it is not obligated to explain why it did not
recognize the proffered mitigator. Id.[16] Sapp argues that his long history of a “substance abuse disorder” consisting of
alcohol, marijuana, and opioid abuse was a mitigating circumstance improperly
overlooked by the trial court. (Appellant’s Br. p. 11). However, in his
sentencing memorandum and argument at the sentencing hearing, Sapp only
mentioned his alleged opioid abuse. In his PSI, Sapp explicitly “denied the use
of heroin and prescription medications.” (Appellant’s App. Vol. II, p. 147).
The only information before the trial court regarding Sapp’s alleged opioid
abuse were the unverified statements contained in his sentencing memorandum
and the argument of his counsel, which were not evidence. Therefore, Sapp’s
substance abuse, as argued at sentencing, was not clearly supported by the
record, and we cannot conclude that the trial court abused its discretion in
failing to recognize it as a mitigator. See Anglemyer, 868 N.E.2d at 493.
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[17] As to his expressions of remorse, it has long been established that the trial court
is in the best position to evaluate the importance of such evidence for
sentencing. See, e.g., Gibson v. State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006)
(“Remorse, or lack thereof, by a defendant often is something that is better
gauged by a trial judge who views and hears a defendant’s apology and
demeanor first hand and determines the defendant’s credibility.”). Like other
credibility determinations, absent some evidence of impermissible consideration
by the trial court, we do not reweigh a trial court’s assessment of a defendant’s
expressions of remorse. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Here,
the trial court heard Sapp’s allocution in which he expressed his remorse and
apologized to Riggs. The trial court was not persuaded, and we will not
second-guess its assessment. Id.[18] Neither can we conclude that the trial court abused its discretion when it failed
to find Sapp’s traumatic brain injury as a mitigating circumstance. In his PSI
Sapp reported having experienced an injury and a seizure when he was in high
school, but he did not characterize it as a brain injury, traumatic or otherwise.
Again, the only references to a traumatic brain injury in the record were the
unverified statements contained in Sapp’s sentencing memorandum and the
argument of his counsel, neither of which were evidence. Therefore, this factor
was not clearly supported by the record, and the trial court did not abuse its
discretion in declining to find it as a mitigating circumstance. See Anglemyer,
868 N.E.2d at 493.
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[19] In addition, the mitigating weight accorded to a defendant’s mental impairment
depends on, among other things, how it limits a defendant’s overall functioning
and the extent of any nexus between the impairment and the commission of the
crime. Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010), trans. denied.
Here, Sapp who characterized his health as “fair,” reported graduating from
high school, fairly regular employment, and no need for medication, which
indicates that, even if it had been clearly established that he had a traumatic
brain injury, the injury did not significantly impact his overall functioning.
(Appellant’s App. Vol. II, p. 146). Sapp placed no actual evidence before the
trial court that a traumatic brain injury had anything to do with the commission
of the instant offense. Given the lack of evidence that his alleged traumatic
brain injury impacted his functioning or had a nexus with the offenses, the trial
court did not abuse its discretion in failing to find it significant for sentencing.
See id. (finding no abuse of the trial court’s sentencing discretion where Smith
failed to show his diminished mental capacity limited his ability to function or
had a nexus with the crime).
CONCLUSION
[20] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it declined to accord mitigating weight to three of Sapp’s
proffered mitigators.
[21] Affirmed.
[22] May, J. and Altice, J. concur
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