Ace Michaels v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Nov 08 2017, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Theodore J. Minch Curtis T. Hill Jr. Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ace Michaels, November 8, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1705-CR-1061 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause Nos. 73D02-1605-F6-180 73D02-1605-F6-190

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 1 of 7

Case Summary [1] Appellant-Defendant Ace Michaels pled guilty to Level 6 felony criminal

confinement and Level 6 felony failure to register as a sex offender. The trial

court sentenced Michaels to 730 days executed for the criminal confinement

conviction and 365 days suspended for failure to register as a sex offender. The

sentences were ordered to be served consecutively. [2] Michaels raises the following restated issues: 1) whether the trial court abused

its discretion in ordering consecutive sentences and 2) whether Michaels’s

sentence is inappropriate in light of the nature of his offenses and character.

Because the trial court did not abuse its discretion and Michaels’s sentence is

not inappropriate, we affirm.

Facts and Procedural History [3] Michaels moved in with L.L. and L.L.’s three-year-old grandson in May of

2016 in exchange for some him completing work around her house. On May

10, 2016, L.L. became angry because Michaels returned to the house very

intoxicated. When L.L.’s anger became evident, Michaels responded by

running towards L.L. screaming and cursing. App. Vol. II, p. 17. L.L.

attempted to leave with her grandson but was stopped when Michaels slammed

the front door closed, punched L.L. in the stomach, and slapped her across the

face. L.L was eventually able to get away from Michaels with her grandson

and called the police from a neighbor’s house.

Court of Appeals of Indiana | Memorandum Decision 73A01-1705-CR-1061 | November 8, 2017 Page 2 of 7 [4] The State subsequently charged Michaels with criminal confinement,

intimidation, and battery in cause number 73D02-1605-F6-180 (“Cause 180”).

Michaels is also a convicted sex offender in Illinois and is required to register as

a sex offender in Indiana. Because Michaels failed to register his address as

required, the State charged Michaels with Level 6 felony failure to register in

cause number 73D02-1605-F6-190 (“Cause 190”). On March 13, 2017,

Michaels pled guilty to Level 6 felony criminal confinement in Cause 180 and

to failing to register as a sex offender in Cause 190. [5] The trial court sentenced Michaels to 730 days of incarceration in Cause 180 on

April 10, 2017. That same day, in Cause 190, the trial court sentenced

Michaels to one year, all suspended to probation. The trial court ordered that

the sentence for Cause 190 be served consecutively to the sentence for Cause

180.

Discussion and Decision [6] Michaels argues that the trial court abused its discretion when it ordered him to

serve his sentences consecutively. Additionally, Michaels argues that his

sentence is inappropriate in light of the nature of his offense and character.

I. Abuse of Discretion [7] We begin by noting that sentencing decisions rest within the sound discretion of

the trial court and are reviewed on appeal only for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on

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reh’g, 875 N.E.2d 218 (Ind. 2007). “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.” Id.

One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.

[8] Id. at 490-91. “The decision to impose consecutive sentences lies within the

discretion of the trial court. However, a trial court is required to state its

reasoning for imposing consecutive sentences. In order to impose consecutive

sentences, a trial court must find at least one aggravating circumstance.”

McBride v. State, 992 N.E.2d 912, 919 (Ind. Ct. App. 2013). [9] In claiming that the trial court abused its discretion in sentencing him, Michaels

argues that the trial court improperly balanced the aggravating and mitigating

circumstances. This is a request for us to reweigh the aggravators and

mitigators which we will not do. See Anglemyer, 868 N.E.2d at 491. Moreover,

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based upon a review of the record, there was ample evidence to support the trial

court’s findings. [10] The trial court found that Michaels’s criminal history was an aggravating

circumstance, which justified the consecutive sentences. Specifically, the trial

court said that Michaels has “past criminal history [that] haunts” him. Tr. p.

33. This aggravating circumstance alone was sufficient to justify Michaels’s

consecutive sentences. See Anglemyer, 868 N.E.2d at 491. Therefore, the trial

court did not abuse its discretion in sentencing Michaels to consecutive

sentences.

II. Appropriateness of Sentence [11] Under Indiana Appellate Rule 7(B), “[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.” When reviewing such claims, we

“concentrate less on comparing the facts of the [case at issue] to others, whether

real or hypothetical, and more on focusing on the nature, extent, and depravity

of the offense for which the defendant is being sentence, and what it reveals

about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.

App. 2008) (internal quotes and citations omitted). Michaels, as the defendant,

bears the burden of persuading us that his sentence is inappropriate. Sanchez v.

State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008). Michaels received

approximately two years executed and one year suspended for his two Level 6

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felony convictions. This sentence is significantly shorter than the maximum six

years of incarceration he could have potentially received for the two

convictions. [12] With respect to the nature of the offense, Michaels physically and verbally

lashed out at his victim and confined her in a drunken rage. This violence

occurred in the presence of the victim’s three-year-old grandson. Michaels

attempts to downplay his crimes by saying “the offense, although I understand

was traumatic and everything, it ended up, it could have been a lot worse, I

guess.” Tr. p. 33. We do not believe that hitting and confining a victim in the

presence of a young child should be downplayed. [13] As for his character, Michaels has an extensive criminal history of convictions.

Michaels’s criminal history includes: being convicted of sexual abuse in

Illinois, a registry-related conviction in Bartholomew County, a registry-related

conviction in Illinois; a conviction for robbery in California, and an unlawful

use of a deadly weapon conviction in Missouri. Michaels also has convictions

for battery, invasion of privacy, resisting law enforcement, public intoxication,

and criminal mischief. [14] Michaels, however, argues that the trial court should have given more weight to

the fact that he suffers from mental illness, he had a difficult childhood, and his

efforts to seek treatment. This is a request for us to reweigh the aggravating and

mitigating factors which we will not do. See Anglemyer, 868 N.E.2d at 491.

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Based on the above-mentioned evidence of Michaels’s character and nature of

his offense, he has failed to establish that his sentence was inappropriate.

Conclusion [15] After reviewing the record, we conclude that the trial court did not abuse its

discretion when it ordered Michaels’s sentences to run consecutively. We also

conclude that Michaels failed to establish that his sentence was inappropriate in

light of his character and the nature of his offense. Consequently, we affirm the

trial court’s judgment.

May, J., and Barnes, J., concur.

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