Calvin A. Lowe v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 26 2019, 8:14 am regarded as precedent or cited before any 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 Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Calvin A. Lowe, August 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-574 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1808-F5-152

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-574 | August 26, 2019 Page 1 of 8

STATEMENT OF THE CASE [1] Appellant-Defendant, Calvin Lowe (Lowe), appeals his sentence following his

guilty plea to attempted burglary, Ind. Code §§ 35-43-2-1, 35-41-5-1, a Level 5

felony; resisting law enforcement using a vehicle, I.C. §§ 35-44.1-3-1(a)(3), 35-

44.1-3-1(b)(1)(A), a Level 6 felony; and to being an habitual offender, I.C. § 35-

50-2-8(a). [2] We affirm.

ISSUE [3] Lowe presents one issue on appeal, which we restate as: Whether remand is

necessary for resentencing due to an inconsistency between the trial court’s oral

and written sentencing statements.

FACTS AND PROCEDURAL HISTORY [4] On August 10, 2018, Lowe attempted to open the doors of a business, La

Zacatecana, 1 in Lafayette, Indiana, when it was closed and without the

permission of the owners. Lowe intended to commit a theft inside the business

if he had been successful at entering. When officers of the Lafayette Police

Department responded to an alarm signal, Lowe fled from them in his vehicle,

despite the fact that he was aware that the officers were in pursuit. According

to the probable cause affidavit filed in this case, officers noticed that the doors

1 This business is referred to as “La Sacatina” in the transcript. (Transcript Vol. II, p. 22).

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of two other businesses located in the same plaza as La Zacatecana “had their

locks punched out and appeared to have been tampered with.” (Appellant’s

App. Vol. II, p. 54). [5] On August 15, 2018, the State filed an Information, charging Lowe with three

Counts of attempted burglary and one Count of resisting law enforcement using

a vehicle. In a separate Information, the State alleged that Lowe was an

habitual offender. On December 14, 2018, Lowe pleaded guilty to one Count

of attempted burglary, resisting law enforcement using a vehicle, and to being

an habitual offender due to having three prior, unrelated felony convictions in

the state of Illinois, two for forgery and one for theft. [6] The presentence investigation report (PSI) revealed that Lowe had a total of five

prior felony convictions—three for forgery, one for burglary, and one for theft.

Lowe had violated his probation on three occasions, and he was on parole in

Illinois for one of his forgery convictions when he committed the instant

offenses. Lowe also had a felony theft case pending in Illinois. Lowe reported

having been diagnosed with bipolar disorder in 1998. The presentence

investigator recommended that the aggravating factors for sentencing were

Lowe’s criminal history and that he had recently violated the conditions of his

parole. The presentence investigator found no mitigating circumstances. The

presentence investigator recommended that the trial court impose a five-year

sentence on the attempted burglary conviction, enhanced by two years for being

an habitual offender, and a two-year sentence on the resisting law enforcement

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conviction, all to be served consecutively, for an aggregate sentence of nine

years. [7] On February 8, 2019, the trial court held Lowe’s sentencing hearing. The State

argued that the mitigating circumstances were Lowe’s guilty plea and his

expressions of remorse but that the significance of the guilty plea was lessened

due to the benefit he gained in the dismissal of the other two burglary charges.

The State argued that the aggravating circumstances were Lowe’s criminal

history, his recent violation of the conditions of his parole, and the nature of the

offense, in that Lowe planned to commit the burglary and came to Lafayette

expressly to steal from businesses there. During his allocution Lowe told the

trial court that the offenses were the result of a negative mental health episode

and stated that “I’m just so embarrassed, I’ve never done anything like this

before, I feel ridiculous that it happened . . . .” (Tr. Vol. II, p. 34). [8] In its oral sentencing statement, the trial court found that, due to Lowe’s

criminal history, it was “struggling” with accepting his explanations for the

offenses. (Tr. Vol. II, p. 42). The trial court also noted that Lowe had planned

the burglary and that those who plan burglaries are aware that, if they are

caught, they will go to prison. The trial court explained as follows:

That’s kind of where I’m at and you got caught, and you tried to run and now is the date of sentencing and it’s hard to look at those cases and say well probation is appropriate or let’s suspend

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the sentence and because you knew exactly what you’re getting into unfortunately. When this all occurred. 2

(Tr. Vol. II, p. 44). [9] The trial court found as aggravating circumstances Lowe’s criminal history and

his recent violation of parole. The trial court found Lowe’s guilty plea to be

“significant” as a mitigator. (Tr. Vol. II, p. 45). The trial court also found

Lowe’s mental health to be a mitigating circumstance but that it “may have

played some part of this, not all of it. You knew what you were doing.” (Tr.

Vol. II, p. 45). The trial court stated, “I believe the aggravators outweigh the

mitigating factors” and accepted the sentencing recommendations contained in

the PSI. (Tr. Vol. II, p. 45). The trial court sentenced Lowe to five years for

the attempted burglary and enhanced that sentence by two years for being an

habitual offender. The trial court sentenced Lowe to two years for resisting law

enforcement and ordered Lowe to serve all sentences consecutively, for an

aggregate sentence of nine years. The trial court also suspended two years to

probation. Prior to concluding the hearing, the trial court noted that the

premeditated nature of the crime and Lowe’s apparent targeting of a

“vulnerable” business community required serious repercussions and merited

the sentence imposed. (Tr. Vol. II, p. 46). In its written sentencing statement,

2 These statements are attributed to Lowe in the transcript. However, it is evident from the context of the remarks that it is the trial court making them, not “the Defendant”. (Tr. Vol. II, p. 44).

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the trial court imposed the same sentence but found that the “mitigating factors

outweigh the aggravating factors.” (Appellant’s App. Vol. II, p. 18). [10] Lowe now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [11] Lowe contends that the trial court erred when it imposed enhanced, consecutive

sentences after finding in its written sentencing statement that the mitigating

circumstances outweighed the aggravating circumstances. However, Lowe also

acknowledges that the trial court found in its oral sentencing statement that the

aggravators outweighed the mitigators. As a general rule, we review a trial

court’s imposition of sentence 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). A trial court may abuse its discretion by entering a sentencing statement

that explains the imposition of the sentence with reasons that are not supported

by the record or by giving reasons that are improper as a matter of law. Id. at

490-91. When a trial court issues conflicting sentencing statements, “[r]ather

than presuming the superior accuracy of the oral statement, we examine it

alongside the written sentencing statement to assess the conclusions of the trial

court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). If the two statements

truly conflict, the court may credit the statement that accurately pronounces the

sentence, or it may remand for resentencing. Id. [12] Lowe urges us that remand is necessary because “if the trial court found that

the mitigating factors outweighed the aggravating factors, then the imposition

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of enhanced sentences would be highly inappropriate.” (Appellant’s Br. p. 8).

Lowe offers a similar argument regarding the trial court’s imposition of

consecutive sentences. However, Lowe does not develop any argument that the

mitigating circumstances actually outweighed the aggravating ones, and his

argument ignores that we have the option of assessing the conflicting statements

and crediting the one which we find accurately pronounces the sentence.

McElroy, 865 N.E.2d at 589. [13] Here, the trial court imposed identical sentences in its oral and written

sentencing statements. Our examination of both statements leads us to

conclude that the trial court’s oral statement accurately pronounced the

sentence. In its oral sentencing statement, the trial court found two aggravating

circumstances, namely Lowe’s criminal history and his recent parole violation,

and it stated that his premeditation and selection of a “vulnerable” victim

merited the sentence imposed. (Tr. Vol. II, p. 46). While the trial court found

Lowe’s guilty plea to be significant, it found his mental illness to be less so

because, while it may have played a role, he was still aware of his conduct. In

addition, the trial court adopted the sentencing recommendations of the

probation department’s investigator, who found no mitigating circumstances,

which also leads us to conclude that the trial court did not accord overriding

weight to the mitigators it found. In short, we find that the trial court’s

inconsistent statements regarding the mitigating and aggravating circumstances

were merely an oversight or a clerical error and that its intent to impose

enhanced, consecutive sentences is sufficiently clear in the record that remand is

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not necessary. See Dowell v. State, 873 N.E.2d 59, 60-61 (Ind. 2007) (applying

McElroy and resolving conflicting sentencing statements after a comparison

rather than remanding for resentencing).

CONCLUSION [14] Based on the foregoing, we conclude that the trial court intended to find that

the aggravators outweighed the mitigators for sentencing and that remand is not

necessary to clarify the trial court’s reasons for the imposition of its sentence. [15] Affirmed. [16] Vaidik, C. J. and Bradford, J. concur

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