Michael S. Collins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 19 2016, 7:52 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Gregory F. Zoeller Bargersville, Indiana Attorney General Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael S. Collins, May 19, 2016 Appellant-Defendant, Court of Appeals Case No. 55A01-1510-CR-1661 v. Appeal from the Morgan Superior Court State of Indiana, The Honorable Jane Spencer Appellee-Plaintiff. Craney, Judge Trial Court Cause No. 55D03-1412-FC-1929

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 1 of 11

Statement of the Case [1] Michael S. Collins (“Collins”) appeals his sentence for his Class C felony

aiding, inducing, or causing forgery conviction1 and his enhancement for being

adjudicated an habitual offender.2 On appeal, he argues that: (1) the trial court

abused its discretion when it ordered an amount taken from his posted bond to

pay for his public defender’s fee because he did not agree to pay that fee in his

plea agreement; and (2) his sentence was inappropriate under Indiana Appellate

Rule 7(B) in light of the nature of his offense and his character. Because we

conclude that Collins waived his objection to paying his public defender’s fee by

failing to object at his sentencing hearing and because his sentence was not

inappropriate, we affirm. [2] We affirm.

Issues 1. Whether the trial court abused its discretion when it ordered him to pay his public defender’s fee.

2. Whether Collins’ sentence was inappropriate under Appellate Rule 7(B).

1 IND. CODE §§ 35-43-5-2(b)(1) and 35-41-2-4. We note that, effective July 1, 2014, the Indiana General Assembly amended this statute, and Collins’ offense would now be considered a Level 6 felony. However, we will apply the version of the statute in effect at the time of his offense. 2 I.C. § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 2 of 11

Facts [3] Between May 16, 2014 and June 30, 2014, Collins was incarcerated in the

Morgan County Jail for various charges, including possession of a handgun by

a serious violent felon. This charge was based on Collins’ criminal history and

his possession of a pistol, which was located at the house of his girlfriend, Holly

Boutwell (“Boutwell”). During Collins’ incarceration, Boutwell decided to

prepare a bill of sale for the pistol to make Collins’ prosecutor think that she,

rather than Collins, had owned the gun. Boutwell asked Collins to help her

prepare this bill of sale. He assisted her by telling her what a bill of sale should

look like, by writing a bill of sale, and sending it to her. Ultimately, Boutwell

forged a bill of sale and gave it to Collins’ attorney, who in turn gave it to the

prosecutor in Collins’ cause. [4] On December 22, 2014, the State charged Collins with Class C felony aiding,

inducing or causing forgery and Class D felony aiding, inducing, or causing

obstruction of justice. On January 13, 2015, the State added a charge alleging

that Collins was an habitual offender based on two prior felony convictions.

Subsequently, on May 18, 2015, Collins pled guilty to Class C felony aiding,

inducing, or causing forgery with an open sentence. In exchange for Collins’

guilty plea, the State dismissed his aiding, inducing, or causing obstruction of

justice charge and his charges in three other causes. The plea agreement also

specified that Collins would pay: “√ Fine: $1.00 Fine, Court Costs, and ( ) $

_____ Fee.” (App. 89).

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 3 of 11 [5] At his sentencing hearing, thirty-three-year-old Collins admitted that he had

been doing drugs in some “shape or form, including alcohol” since he was

twelve years old. (Tr. 45). He claimed that his drug addiction was the reason

for his criminal behavior, and he asked to be admitted to the purposeful

incarceration program for substance abuse rehabilitation. He also testified that

he had mental illnesses that he had dealt with for “quite some time.” (Tr. 46). [6] In mitigation of his offenses, Collins noted that he had completed several

courses while in jail, including the twenty-hour “Realizations” substance abuse

program; several courses with the Reformers Institutional Program, a

religiously-based addiction program; a Discover Bible course; a Mothers

Against Methamphetamine drug awareness and prevention program; and

several months of study in a Bible correspondence school. However, he also

admitted that he had received “numerous” write ups while in jail and that he

had been written up the previous time he had been in the Department of

Correction for trafficking drugs into the prison. (Tr. 63). Collins also

acknowledged that he had not taken any steps on his own to address his

addictions when he had been out of prison and that he had committed crimes

while in prison. In addition to the instant offense, he had also previously been

charged with threatening the prosecutor in one of his causes from prison. [7] At the conclusion of the hearing, the trial court sentenced Collins to six (6)

years for his aiding, inducing, or causing forgery conviction and enhanced that

sentence by ten (10) years for his habitual offender adjudication. The court

documented that Collins could enter the purposeful incarceration program and

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 4 of 11

said that it would consider a sentence modification if he completed the program

successfully. In addition, the court noted that the trial court clerk still held $650

of Collins’ bond money. It ordered Collins to pay $183 in court costs out of this

amount, plus a $1 fine. The court then released “the $650 minus $183 all to

[the] public defender” to cover the public defender’s fees. 3 (Tr. 88). Collins did

not object to the trial court’s order. Collins now appeals.

Decision [8] On appeal, Collins argues that: (1) the trial court abused its discretion in

ordering that $466 be deducted from his posted bond money to pay his public

defender because he did not agree to that payment as part of his plea agreement;

and (2) his sentence was inappropriate under Appellate Rule 7(B) in light of the

nature of his offense and his character. We will address each of these

arguments in turn.

1. Public Defender Fee

[9] First, Collins argues that the trial court abused its discretion when it ordered

him to pay his public defender’s fee because he did not agree to pay such a fee

in his plea agreement. He notes that the plea agreement specified that he would

pay court costs and a fine, but the box on the agreement for “fees” was not

3 It is not clear whether the trial court intended Collins to also pay the $1 fine from his bond money.

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 5 of 11

checked. He asks us to interpret this omission as evidence that his agreement

with the State did not include the payment of any fees. [10] A plea agreement is a contract between the State and a defendant and is binding

upon both parties and the trial court when accepted by the trial court. Baker v.

State, 768 N.E.2d 477, 481 (Ind. Ct. App. 2002). Accordingly, once an

agreement is accepted, the trial court is precluded from imposing any sentence

other than that required by the plea agreement. Sinn v. State, 693 N.E.2d 78, 80

(Ind. Ct. App. 1998). [11] However, we find it dispositive here that Collins did not object to the trial

court’s order at his sentencing hearing that the public defender fee should be

subtracted from his posted bond money. As a general rule, a defendant’s failure

to object before the trial court results in waiver of that issue for purposes of

appeal. Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006), trans.

denied. A contemporaneous objection allows the trial court the opportunity to

make a final ruling on the matter. Jones v. State, 800 N.E.2d 624, 629 (Ind. Ct.

App. 2003). Accordingly, we conclude that Collins has waived appellate

review of his fee, and we will not address it.

2. Appellate Rule 7(B)

[12] Next, Collins asserts that his sentence was inappropriate under Indiana

Appellate Rule 7(B) in light of the nature of his offense and his character.

Under Appellate Rule 7(B), a reviewing court may revise a sentence if, after due

consideration of the trial court’s decision, it finds that the sentence is

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 6 of 11

inappropriate in light of the nature of the offense and the character of the

offender. Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006). When

determining whether a sentence is inappropriate, we look at the defendant’s

culpability, the severity of the crime, the damage done to others, and myriad

other factors that come to light in a given case. Moss v. State, 13 N.E.3d 440,

447 (Ind. Ct. App. 2014). Although this Court is not required to use “great

restraint” in evaluating a sentence under Appellate Rule 7(B), we nevertheless

exercise deference to a trial court’s sentencing decision, both because Appellate

Rule 7(B) requires that we give “due consideration” to that decision and

because we recognize the unique perspective a trial court has when making

decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App. 2007). We

recognize that the “principal role of appellate review should be to attempt to

leaven the outliers and to 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.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). The defendant bears the burden of persuading this Court that his

sentence is inappropriate. Childress, 848 N.E.2d at 1080. [13] Here, Collins was convicted of aiding, inducing, or causing forgery as a Class C

felony and was adjudicated an habitual offender. At the time of Collins’

offense, the sentencing range for a Class C felony was two (2) to eight (8) years,

with an advisory sentence of four (4) years. I.C. § 35-50-2-6 (2013). The

sentencing range for the habitual offender enhancement for his Class C felony,

in this case, was from four (4) to twelve (12) years. I.C. § 35-50-2-8(h) (2013)

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 7 of 11

(providing that “[t]he court shall sentence a person found to be a habitual

offender to an additional fixed term that is not less than the advisory for the

underlying offense nor more than three (3) times the advisory sentence for the

underlying offense”). As the trial court sentenced Collins to six (6) years for the

forgery conviction and ten (10) years for the habitual offender enhancement, he

did not receive the maximum sentence for either conviction. [14] First, Collins contends that his sentence was inappropriate in light of the nature

of his offense. Specifically, he asserts that it was inappropriate because his

actions did not have any victims and because his co-defendant, Boutwell, who

actually forged and presented the bill of sale to the prosecutor, was sentenced to

only four years with two years suspended. As a result, Collins claims that the

nature of his offense warranted a more lenient sentence. In addition, he notes

that a month after he committed his offense, the Legislature amended the

Indiana Criminal Code so that aiding, inducing, or causing forgery became a

Level 6 felony, which had a sentencing range of one half (0.5) year to two-and-

a-half (2.5) years rather than two (2) to eight (8) years. While he recognizes

that this amendment did not apply retroactively to his case, he asserts that the

drastic reduction in the penalty for offenses such as his demonstrated that the

Legislature preferred reduced sentences for forgery. [15] Contrary to Collins’ first argument, his assistance in creating a forged document

was a serious crime. He assisted in creating the document in hopes that he

would be acquitted of a pending felony charge—possession of a handgun by a

serious violent felon. As the State notes, “[h]ad the forgery not been quickly

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 8 of 11

discovered, the ‘victim’ would have been the entire community, [which] would

have been left subject to [Collins’] continual criminal offenses.” (State’s Br. 16).

His willingness to assist in producing a forged document to use as false

evidence in his trial also demonstrated his lack of respect for the legal system. [16] Second, Collins argues that the nature of his offense was mitigating because

Boutwell, who actually perpetrated the forgery, received a lesser sentence than

he did. He cites her sentence as evidence that forgery is not a serious offense.

However, as we concluded above, the nature of Collins’ offense was serious,

especially in light of his intent to produce false evidence. Further, we “need not

compare” the sentences of two codefendants. Dennis v. State, 908 N.E.2d 209,

214 (Ind. 2009). While we do not have information regarding Boutwell’s

character or criminal history, Collins admits that his criminal history was

“much worse” than Boutwell’s. (Collins’ Br. 9). Accordingly, even though

Collins and Boutwell were co-defendants, their situations were not comparable

for purposes of sentencing. [17] With regard to Collins’ third argument, that the Legislature’s amendments

indicated the Legislature’s intent to decrease the sentences for forgery

convictions, we note that the Legislature’s amendments did not apply to him.

Generally, the sentencing statutes in effect at the time a defendant commits an

offense govern that defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340

(Ind. Ct. App. 2014), trans. denied. In Marley, we addressed the issue of whether

the 2014 criminal code amendments should affect sentencing for offenses

committed prior to the effective date of the amendments and determined that

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 9 of 11

they should not. Id. Instead, we noted that the Legislature specifically provided

in the amendments that “‘[t]hose penalties, crimes, and proceedings continue

and shall be imposed and enforced under prior law as if [the new criminal code]

had not been enacted.’” Id. (quoting I.C. §§ 1-1-5.5-21 and 1-1-5.5-22).

Accordingly, we conclude that Collins’ arguments regarding the nature of his

offense are without merit. [18] Next, Collins argues that his sentence was inappropriate in light of his

character. He contends that, even though “there are aspects of his character

that are aggravating in nature,” there are also “positive aspects” of his

character, such as the fact that he filed his own motions in this cause, that he

had started to improve himself at the time of sentencing, and that he had

entered into a plea agreement. (Collins Br. 10). We are not persuaded that

these proffered “positive aspect” warrant a reduction in his sentence. (Collins

Br. 10). As the trial court noted, Collins has a twenty-year criminal history, has

violated the conditions of probation whenever he was supervised by the court,

has failed to follow jail rules, and has committed additional crimes while in jail.

He also has a history of drug abuse, drug trafficking while in jail, and failing to

address his substance abuse when not incarcerated. This history demonstrates

Collins’ lack of respect for the legal system and his failure to take advantage of

the past opportunities the trial court has afforded him. Accordingly, we

conclude that his sentence is not inappropriate in light of the nature of his

offense or his character. [19]

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 10 of 11 [20] Affirmed.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 55A01-1510-CR-1661 | May 19, 2016 Page 11 of 11