Trevor M. Houlihan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 10 2019, 9:07 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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nicholas F. Wallace Curtis T. Hill, Jr. Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Trevor M. Houlihan, September 10, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-449 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1802-F4-12

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 1 of 12

Statement of the Case [1] Trevor Houlihan appeals his sentence following his convictions for arson, as a

Level 4 felony, and intimidation, as a Level 6 felony. Houlihan presents two

issues for our review:

1. Whether the trial court abused its discretion when it sentenced him.

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

[2] We affirm.

Facts and Procedural History [3] In February 2018, after he found out that his ex-girlfriend, C.O., had started

dating someone else, Houlihan threatened to kill C.O. Houlihan also drove to

C.O.’s house, dropped a lit match in the gas tank of her car, and drove away.

The car caught fire. Tyler Treesh with the Huntertown Fire Department

responded to the fire and, while he was trying to extinguish it, “a large portion

of magnesium in that vehicle exploded in [his] face.” Sent. Tr. at 18. That

explosion damaged Treesh’s protective gear “beyond repair.” Id. [4] When Allen County Police Department officers arrived at C.O.’s house, both

C.O. and her parents told them that they suspected that Houlihan had started

the fire. When officers went to Houlihan’s house, he admitted that he had set

her car on fire. Houlihan told the officers that he had no remorse and that he

considered it “mission accomplished.” Appellant’s App. Vol. 2 at 14.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 2 of 12 [5] The State charged Houlihan with arson, as a Level 4 felony, and intimidation,

as a Level 6 felony. After the charges were filed, Houlihan sought treatment for

alcohol abuse with Dr. Stephen Ross, who diagnosed Houlihan with severe

alcohol abuse disorder, cannabis use disorder, and impulse control disorder.

Dr. Ross recommended that Houlihan undergo inpatient treatment in

Cleveland, and he completed that treatment. In October 2018, Houlihan

pleaded guilty as charged. The trial court entered judgment of conviction

accordingly and sentenced Houlihan to: ten years for arson, with six years

executed and four years suspended to probation; and one year for intimidation,

to be served concurrent with the sentence for arson. This appeal ensued.

Discussion and Decision Issue One: Abuse of Discretion in Sentencing

[6] Houlihan first contends that the trial court abused its discretion when it

sentenced him. Sentencing decisions lie within the sound discretion of the trial

court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

App. 2014) (citation omitted), trans. denied. [7] A trial court abuses its discretion in sentencing if it does any of the following:

(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 3 of 12

factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

other grounds, 875 N.E.2d 218 (Ind. 2007)). [8] The sentencing range for a Level 4 felony is two years to twelve years, with an

advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2019). The sentencing

range for a Level 6 felony is six months to two and one-half years, with an

advisory sentence of one year. I.C. § 35-50-2-7. Here, the trial court did not

identify any aggravators or mitigators in its written sentencing statement.

However, at the sentencing hearing, the trial court noted Houlihan’s complete

lack of remorse and the nature and circumstances of the offenses, and the court

acknowledged Houlihan’s guilty plea as indicative of his “acceptance of

responsibility.” Sent. Tr. at 32. The court sentenced Houlihan to ten years,

with six years executed and four years suspended to probation for his arson

conviction and a concurrent one year executed sentence for his intimidation

conviction. [9] Houlihan contends that the trial court “erred by enhancing the presumptive

sentence without identifying any aggravating circumstances.” Appellant’s Br.

at 16. He also asserts that the trial court abused its discretion when it failed to

identify proffered mitigating circumstances. We address each contention in

turn.

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Aggravating Circumstances [10] First, as the State correctly points out, our courts no longer impose

“presumptive” sentences, and “‘a sentence toward the high end of the

[applicable sentencing] range is no longer an “enhanced sentence” in the sense

that the former regime provided.’” Appellee’s Br. at 10 (quoting Pedraza v.

State, 887 N.E.2d 77, 80 (Ind. 2008)). Second, while the trial court did not

identify any aggravating circumstances in its written sentencing statement, the

court explained its reasons for imposing the sentence during the sentencing

hearing as follows:

I’m very troubled by—I read the Probable Cause Affidavit, followed by the remarks made by you at the time, and the event itself, . . . one of the thoughts I had was that I cannot imagine throwing a match into an open gas tank. I just—it’s just beyond comprehension to me that you could be so out of control and so hateful that you could do that, . . . clearly endangering yourself as well as a number of other people. I’m not allowed to give a great deal of weight to victim impact, but very clearly you have had an extraordinary negative impact upon these people for absolutely no reason other than you and your ego for lack of a better explanation.

***

The other thing that I heard, that I was shocked at actually, to hear that you continued to drink after the event until the last thirty (30) days, which is not only after the event, but after therapy. Unless . . . I’m mistaken here with anything please correct me, but that’s what I heard, I believe, which tells me that you got nothing out of the treatment agency that Dr. Ross tells us is the second best in the country. It sounds to me as I think mom said, I’m not sure you got it yet. I also know . . . that you’re in Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 5 of 12

serious need of treatment, but I’m not sure that you’re prepared to accept that treatment or accept the consequences of your own conduct thereby being an incentive to accept treatment. That conduct has its consequences.

***

I can’t . . . get pas[t] the visual of throwing a lighted match into a car’s gas tank and then seeing these exhibits, and saying to the fire fighter that you didn’t really care what happened to anybody. And I think that’s the acceptable true statement about your remorse. I don’t think you have any remorse in spite of the remarks made since then that you’ve come to be remorseful. I think the only thing you’re remorseful about is the fact that you got caught and now you’re standing here subject to the possibility of a Department of Correction sentence.

***

You have not demonstrated any significant remorse. Significant remorse would be quit drinking because that’s what you did when you were drinking. You should [have] quit the next morning, and certainly after treatment. So I’m gonna order you committed to the Indiana Department of Correction for ten (10) years on the Arson Charge; one (1) year on the Intimidation.

Sent. Tr. at 30-32. [11] We hold that the trial court’s statement at the sentencing hearing was

sufficiently detailed to support the imposition of the sentence. See Gleason v.

State, 965 N.E.2d 702, 711 (Ind. Ct. App. 2012).

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Mitigating Circumstances [12] Houlihan also contends that the trial court abused its discretion when it did not

find mitigating: his lack of criminal history; the likelihood that he would

respond affirmatively to probation or short-term incarceration; he is unlikely to

commit another crime; he has made or will make restitution to his victim; that

his incarceration will result in undue hardship to him; and his guilty plea. The

finding of mitigating circumstances is within the discretion of the trial court.

Rascoe v. State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that the trial

court failed to identify or find a mitigating circumstance requires the defendant

to establish that the mitigating evidence is both significant and clearly supported

by the record. Id. at 249. The trial court is not obligated to accept the

defendant’s contentions as to what constitutes a mitigating circumstance. Id. [13] Houlihan cites Indiana Code Section 35-38-1-7.1(b)(6) as support for his

contention that he “has no criminal history whatsoever and the trial court

obviously did not take that into consideration before sentencing” him.

Appellant’s Br. at 18. That statute provides that a trial court may consider

mitigating a defendant’s lack “of delinquency or criminal activity,” and Houlihan

ignores his adjudication as a delinquent for an alcohol-related offense just four

years before the instant offenses. I.C. § 35-38-1-7.1(b)(6) (emphasis added).

The trial court noted that juvenile adjudication in its sentencing statement. The

trial court did not abuse its discretion when it did not find Houlihan’s lack of

criminal history to be mitigating.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 7 of 12 [14] With regard to whether Houlihan is likely to respond affirmatively to probation

or short-term incarceration and unlikely to commit another crime, he directs us

to the evidence that he completed an inpatient treatment program, he had

expressed remorse and apologized to C.O. and her family, and Dr. Ross

testified at the sentencing hearing that “if [Humphrey] follows through on [Dr.

Ross’] recommendations he could control his drinking issues and his negative

impulses[.]” Sent. Tr. at 8. However, as the trial court pointed out, Humphrey

continued to consume alcohol even after undergoing treatment, and the court

did not find Humphrey to be remorseful. We cannot say that the trial court

abused its discretion when it did not identify those proffered mitigators. [15] Houlihan also asserts that, because he is gainfully employed, he “could make

restitution” to C.O., but his incarceration would cause him to lose his job,

“thereby creating an undue hardship on [Humphrey] and affecting his ability to

pay the restitution in this case.” Appellant’s Br. at 20. This argument is

unpersuasive. Houlihan does not explain how his loss of employment creates

an undue hardship, as many convicted felons lose their employment. And

Houlihan has not shown that his ability to pay restitution is a significant

mitigating factor. Houlihan does not explain, for example, how much he could

afford to pay C.O. and over what period of time. [16] Finally, Houlihan contends that the trial court should have given mitigating

weight to his guilty plea in light of his acceptance of responsibility and his

alcoholism. However, Houlihan ignores that, at sentencing, the trial court

acknowledged that his guilty plea showed “an acceptance of responsibility.”

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Sent. Tr. at 32. To the extent Houlihan asserts that his guilty plea deserves

more mitigating weight, that claim is not subject to appellate review.

Anglemyer, 868 N.E.2d at 491. We cannot say that the trial court abused its

discretion when it declined to adopt these proffered mitigators. Houlihan has

not demonstrated any abuse of discretion by the trial court in imposing

sentence.

Issue Two: Inappropriateness of Sentence [17] Finally, Houlihan asserts that his ten-year aggregate sentence is inappropriate in

light of the nature of the offenses and his character. Indiana Appellate Rule

7(B) provides that “[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.” This Court has recently held that “[t]he advisory sentence is

the starting point the legislature has selected as an appropriate sentence for the

crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

And the Indiana Supreme Court has explained that:

The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-449 | September 10, 2019 Page 9 of 12 [18] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

regard a sentence as inappropriate at the end of the day turns on “our sense of

the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other facts that come to light in a given case.” Id. at 1224.

The question is not whether another sentence is more appropriate, but rather

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

overcome by compelling evidence portraying in a positive light the nature of the

offense (such as accompanied by restraint, regard, and lack of brutality) and the

defendant’s character (such as substantial virtuous traits or persistent examples

of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). [19] An appellant bears the burden of showing that both prongs of the inquiry favor

revision of his sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Here, Houlihan contends only that his sentence is inappropriate in light of his

character, but he makes no argument regarding the nature of the offenses.

Accordingly, we agree with the State that Houlihan has waived this issue for

our review. See Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013),

trans. denied. [20] Waiver notwithstanding, Houlihan’s argument on appeal is without merit.

Regarding the nature of the offenses, Houlihan threatened to kill his ex-

girlfriend when she started dating someone else, and the fire Houlihan started

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was so severe that it caused an explosion that destroyed a fireman’s protective

gear beyond repair. We cannot say that Houlihan’s sentence is inappropriate in

light of the nature of the offenses. [21] Houlihan contends that his sentence is inappropriate in light of his character

because he: is a young man and has no criminal history; he expressed “a great

deal of remorse in his allocution statement” and “asked for forgiveness”; he

suffers from “severe alcoholism” and a lack of “impulse control”; and he has

undertaken “extraordinary efforts to correct his behavior by seeking out

treatment from professionals and following through with their

recommendations.” Appellant’s Br. at 23. However, as the State points out,

Houlihan admitted to underage alcohol consumption, for which he was

adjudicated a delinquent in 2014, and he admitted to regular use of marijuana

for a few years. Thus, while Houlihan does not have a criminal history, he

admittedly has regularly violated the law. Further, the trial court did not

believe Houlihan’s expression of remorse or request for forgiveness. And the

court noted that Houlihan continued to drink even after completing the

inpatient treatment program. We cannot say that Houlihan’s sentence of ten

years with six years executed and four years suspended to probation is

inappropriate in light of his character. [22] Finally, we note that Houlihan suggests that the trial court was biased against

him because of his race and imposed his sentence because of that alleged bias.

In particular, Houlihan states that

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Judge Surbeck was aware that an influential article was being written for the Fort Wayne Journal Gazette that implied that Judge Surbeck sentences African-American defendants more harshly than white defendants. . . . [Humphrey] is a white male and his case presented an opportunity for Judge Surbeck to show that he sentences white defendants as harshly as African- American defendants. Without any other reasonable explanation for the aggravated sentence, one must assume that the sentence imposed in his case was a reaction by Judge Surbeck to counteract the impression that he sentences persons differently based on race.

Appellant’s Br. at 24-25. We reject Houlihan’s contention on this issue.

Houlihan does nothing more than speculate that his sentence is based on his

race and asks that we “assume” that the trial court was biased against him.

Without any evidence of the trial court’s bias, Houlihan’s contention fails. [23] Affirmed.

Bailey, J., and May, J., concur.

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