Joseph Evan Avart v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 30 2018, 11:07 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Auger Curtis T. Hill, Jr. Franklin, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph Evan Avart, November 30, 2018 Appellant-Defendant, Court of Appeals Case No. 41A04-1712-CR-2968 v. Appeal from the Johnson Circuit Court State of Indiana, The Honorable K. Mark Loyd, Appellee-Plaintiff Judge Trial Court Cause No. 41C01-1612-MR-1

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018 Page 1 of 8 [1] Joseph Avart appeals the sentence imposed by the trial court after Avart

pleaded guilty to Level 1 Felony Burglary1 and Level 2 Felony Manslaughter.2

Avart argues that the trial court failed to consider certain mitigating factors and

that the sentence is inappropriate in light of the nature of the offenses and his

character. Finding no sentencing error and that the sentence is not

inappropriate, we affirm.

Facts [2] In the months leading up to December 2016, Avart was involved in an on-

again-off-again relationship with Mindy Tennenhouse. Tennenhouse had

previously been in a committed relationship with Andrew Perry, but in July

2016, she left Perry to live with Avart. By October 2016, Tennenhouse had

reconciled with Perry and moved back in with him in November. During her

separation from Avart, she maintained contact with him and repeatedly

suggested that she wanted to leave Perry again. [3] By that time, Avart had begun stalking Perry. During November 2016, Avart

drove by Perry’s home approximately five times. He asked his mother, who

was an employee with the Illinois State Police, to run a criminal background

check on Perry.

1 Ind. Code § 35-43-2-1. 2 Ind. Code § 35-42-1-3.

Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018 Page 2 of 8 [4] On November 29, 2016, Tennenhouse visited Avart at his home and the two

engaged in sexual intercourse. The next day, Tennenhouse again told Avart

that she loved him and wanted to be with him. Later that day, Avart went to

the Indianapolis International Airport, where Perry was expected to arrive after

being away from home for work. Avart located Perry’s car and followed Perry

all the way to his home in Greenwood. Avart wanted Perry to “think

somebody was over his shoulder[.]” Tr. Vol. II p. 26. [5] The next day, Avart went to a gun store, where he purchased two boxes of

ammunition for the handgun that he kept inside the glove compartment in his

car. He reached out to an acquaintance to ask whether the GPS location

devices in his vehicle and cell phone could be used to track his whereabouts. [6] In the early morning hours of December 2, 2016, Avart drove to Perry’s house

after Tennenhouse had left for work. Avart parked his car several blocks down

from Perry’s house. Before exiting his car, he placed his handgun and a baggie

of a cocaine lookalike substance in his pockets. Avart entered Perry’s house

through an open garage door. After Perry discovered Avart inside his house,

the two men became involved in a verbal altercation and Perry became very

upset. Perry moved toward Avart, who tripped and fell backwards. Avart then

pulled his gun out of his pocket and shot Perry in the head. [7] Believing Perry to be dead, Avart removed several items in the kitchen and

threw them on the floor to make it appear as though a robbery had occurred.

He left the cocaine lookalike substance near Perry and fled the scene. Perry’s

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mother later discovered her son several hours later. Police and paramedics

arrived at the scene, and Perry was pronounced dead. [8] Avart initially admitted to following Perry to unsettle him but denied that he

had been at Perry’s home on the morning of the incident. After police obtained

the GPS data from Avart’s vehicle and Avart’s cell phone records, which

showed him near Perry’s home at the time Perry was killed, Avart confessed to

killing Perry. [9] On December 19, 2016, the State charged Avart with one count of murder, later

amending the charging information to add charges of Level 2 felony voluntary

manslaughter and Level 1 felony burglary. On November 13, 2017, Avart

pleaded guilty to voluntary manslaughter and burglary in exchange for the

dismissal of the murder charge. Following a sentencing hearing, the trial court

sentenced Avart to concurrent terms of twenty-five years for voluntary

manslaughter and thirty-five years for burglary. Avart now appeals.

Discussion and Decision [10] Avart raises two arguments on appeal: (1) the trial court erroneously failed to

consider relevant mitigating factors; and (2) the sentence is inappropriate in

light of the nature of the offenses and his character. [11] With respect to mitigators not found by the trial court, Avart has the burden of

demonstrating that the mitigating evidence is both significant and clearly

supported by the record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016).

Even if we find error, we will affirm if we are persuaded that the trial court Court of Appeals of Indiana | Memorandum Decision 41A04-1712-CR-2968 | November 30, 2018 Page 4 of 8

would have imposed the same sentence had it considered the proffered

mitigators. Id. [12] First, Avart argues that the trial court should have considered the fact that he

pleaded guilty to be a mitigating factor.3 A guilty plea need not be considered a

significant mitigator where the defendant reaped a substantial benefit from the

plea or where the evidence against the defendant is so overwhelming that the

plea is merely a pragmatic decision. Wells v. State, 836 N.E.2d 475, 479 (Ind.

Ct. App. 2005). [13] Here, Avart reaped a substantial benefit by pleading guilty. Had he been

convicted of murder, he faced a sentence of forty-five to sixty-five years

imprisonment. Ind. Code § 35-50-2-3. By pleading guilty instead to one Level

1 and one Level 2 felony, he decreased his sentencing exposure—and indeed,

his sentence here was an aggregate thirty-five-year term, which is ten years less

than the minimum term he would have faced had he been convicted of murder.

Moreover, the guilty plea was a pragmatic decision made at the eleventh

hour—less than two weeks before his jury trial was to take place. See Barker v.

State, 994 N.E.2d 306, 311-12 (Ind. Ct. App. 2013) (noting that a defendant

who pleads guilty shortly before trial may not be entitled to any mitigating

weight for such a decision). Additionally, the evidence against him—including

3 Avart did not argue that the trial court should consider his guilty plea or—later discussed herein—his remorse as mitigators. Instead, Avart advanced only two mitigators: his lack of a criminal history and the undue hardship that a lengthy incarceration would place on his family. Under these circumstances, we could easily conclude that he has waived this argument but will address it nonetheless.

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his own confession—was overwhelming. Under these circumstances, we find

that the trial court did not err by not finding the guilty plea to be a mitigator. [14] Second, Avart argues that his remorse should have been a mitigating

circumstance. The trial court did consider Avart’s show of remorse, but merely

found it to be unconvincing:

You generally have appeared very remorseful. That is the demeanor that you’ve presented to this Court. But your statements at the time of the arrest coupled with your written statement to me create confusion that doesn’t allow for an easy path, and certainly not a mitigated path.

Tr. Vol. II p. 66-67. It is well established that the trial court, “which has the

ability to correctly observe the defendant and listen to the tenor of his or her

voice, is in the best position to determine whether the remorse is genuine.”

Corralez v. State, 815 N.E.2d 1023, 1025 (Ind. Ct. App. 2004). Here, we see no

reason to second-guess the trial court’s determination that Avart’s show of

remorse was not sincere and, consequently, was not a mitigating factor. [15] Next, Avart contends that the sentence imposed by the trial court is

inappropriate in light of the nature of the offenses and his character. Indiana

Appellate Rule 7(B) provides that this Court may revise a sentence if it is

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

offender. We must “conduct [this] review with substantial deference and give

‘due consideration’ to the trial court’s decision—since the ‘principal role of

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

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‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

citations omitted). [16] Avart was convicted of one Level 1 felony, for which he faced a term of twenty

to fifty years imprisonment, with an advisory term of thirty years. I.C. § 35-50-

2-4(a). The trial court imposed a thirty-five-year sentence, which is slightly

above the advisory but far below the maximum possible term. He was also

convicted of one Level 2 felony, for which he faced a term of ten to thirty years

imprisonment, with an advisory term of seventeen and one-half years. I.C. §

35-50-2-4.5. The trial court imposed a twenty-five-year sentence, which is again

above the advisory but below the maximum possible term. Additionally, the

trial court ordered that the sentences be served concurrently, meaning that his

aggregate thirty-five-year sentence was far below the maximum possible term of

eighty years imprisonment. [17] As for the nature of Avart’s offenses, he stalked Perry for weeks, repeatedly

driving by his house and on one occasion, following him home from the airport

to unsettle him. In the days leading up to the crimes, Avart purchased

ammunition for his handgun, purchased a cocaine lookalike substance, and

asked a friend whether the GPS in his phone and vehicle could be used to track

his whereabouts. In other words, Avart carefully planned and prepared for

these crimes. After killing Perry, Avart ransacked his home to make it appear

as though Perry had died during a botched robbery, leaving Perry’s body for his

mother to find. Avart then lied to the police repeatedly until finally being

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confronted with incontrovertible evidence that he had, in fact, been at Perry’s

home on the morning of the incident. We do not find that the nature of the

offenses aids Avart’s inappropriateness argument. [18] With respect to Avart’s character, it is true that he does not have a criminal

history. But the trial court reasonably found that the premeditated, calculated

nature of Avart’s crime is sufficient to overcome the lack of a prior criminal

history. See Eversole v. State, 873 N.E.2d 1111, 1114 (Ind. Ct. App. 2007)

(finding sentence not inappropriate where defendant had no criminal history

but the violent nature of the crime, particularly the fact that defendant had

killed a man, overcame the lack of prior criminal history). We also note that

Avart’s dishonesty, including his attempt to cover up the crime, speaks ill of his

character. [19] Under these circumstances, we find that the sentence imposed by the trial court

is not inappropriate in light of the nature of the offenses and Avart’s character. [20] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.

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