Ronald E. Voelker, Jr. 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 Apr 02 2020, 8:32 am

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 Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Myriam Serrano Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald E. Voelker, Jr., April 2, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2141 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge Trial Court Cause No. 31D01-1806-F6-441

Barnes, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2141 | April 2, 2020 Page 1 of 6

Statement of the Case [1] Ronald E. Voelker, Jr., appeals the sentence the trial court imposed after he

pleaded guilty to escape, a Level 6 felony. We affirm.

Issue [2] Voelker raises one issue, which we restate as: whether his sentence is

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

Facts and Procedural History [3] Voelker was serving a sentence under the supervision of a community

corrections program. The conditions of the program included wearing a

monitoring device and attending a weekly appointment with a community

corrections officer. [4] On June 7, 2018, Voelker was scheduled to appear for an appointment, but he

called to inform the officer that he would be late. He called back later that day

to say he would not appear. GPS tracking data from his monitoring device

showed that Voelker went to Louisville, Kentucky. A warrant was issued for

his arrest, and he was apprehended at a hotel. Voelker later admitted that while

he was in Louisville, he took a ride on the “Belle of Louisville.” Tr. Vol. 2, p.

6. [5] On June 28, 2018, the State charged Voelker with escape, a Level 6 felony. On

July 26, 2019, Voelker pleaded guilty pursuant to a “blind plea agreement,”

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which did not include an agreement as to sentence. Appellant’s App. p. 64.

The trial court took the plea agreement under advisement. [6] During an August 14, 2019 hearing, the trial court accepted Voelker’s plea

agreement and sentenced him to serve one year in jail. This appeal followed.

Discussion and Decision [7] Voelker argues that his one-year sentence is inappropriate and asks the Court to

reduce it to eight months. Although a trial court may have acted within its

lawful discretion in imposing a sentence, article VII, section 6 of the Indiana

Constitution authorizes this Court to independently review and revise

sentences. This authority is implemented through Indiana Appellate Rule 7(B),

which provides that we may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, we determine that the sentence is

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

offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). [8] When reviewing the appropriateness of a sentence, “we must and should

exercise deference to a trial court’s sentencing decision, both because Rule 7(B)

requires us to give ‘due consideration’ to that decision and because we

understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.

2007). Such deference to the trial court’s judgment should prevail 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

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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). The

appellant bears the burden of persuading the appellate court that his or her

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). [9] The advisory sentence is the starting point that the legislature has selected as an

appropriate sentence for the crime committed. Carter v. State, 31 N.E.3d 17, 32

(Ind. Ct. App. 2015), trans. denied. At the time Voelker committed his offense,

the advisory sentence for a Level 6 felony was one and one-half years, with a

maximum sentence of two and one-half years and a minimum sentence of six

months. Ind. Code § 35-50-2-7 (2016). The trial court sentenced Voelker to one

year, to be served in the county jail. [10] Turning to the nature of the offense, Voelker told his community corrections

supervisor that he would be late to an appointment, and then later informed the

officer he would skip the appointment, before going to Louisville. During

sentencing, Voelker admitted he knew that he was violating a term of probation

when he skipped the appointment. [11] Voelker later claimed he had left town because he needed a place to detoxify

from the effects of methadone treatments, but he did not explain why he could

not have stayed at home, or why he could not have asked the community

corrections officer to reschedule his appointment. Voelker also claims he had

spoken with his attorney before leaving town, and his attorney told him he

would not be arrested for skipping an appointment if he did not cut off his

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monitor. Considering Voelker’s substantial criminal history, which we discuss

below, and his admission that he knew he was violating the terms of his

probation by skipping an appointment and leaving town, his claim that he was

misled is entitled to little weight. [12] As for the character of the offender, Voelker, who was forty-seven years old at

sentencing, concedes he has a lengthy criminal history. He has four prior

felony convictions: possession of a narcotic drug, possession of a syringe,

criminal confinement, and possession of marijuana. In addition, Voelker has

prior misdemeanor convictions for theft, possession of marijuana (2 counts),

battery, false informing, check deception, criminal conversion, and escape. It is

noteworthy that this is his second conviction of escape. Voelker accumulated

his convictions from 1993 to 2002 and from 2010 to present, demonstrating a

long-term refusal to conform to the law. In addition, during the sentencing

hearing in this case, Voelker was facing a pending charge of driving while

suspended, a Class A misdemeanor. [13] Voelker argues that his convictions were related to, or caused by, his lifelong

addiction to various controlled substances. While this may be true, a history of

consuming controlled substances can be a negative sentencing factor. See Healey

v. State, 969 N.E.2d 607, 617 (Ind. Ct. App. 2012) (identifying history of

consuming controlled substances as a potential aggravating factor), trans. denied.

In addition, the record demonstrates that in the past, Voelker attended a

substance abuse treatment program on at least two occasions (one of them

court-ordered), and he failed to comply with the programs’ requirements.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2141 | April 2, 2020 Page 5 of 6 [14] Voelker further claims that he had begun turning his life around at the time of

his arrest by complying with a methadone treatment program and by

maintaining a job. Recent improvements do not necessarily outweigh his

lengthy criminal record and prior failures to reform. Voelker has failed to

demonstrate that his sentence, which was already below the statutory advisory

sentence, is an outlier that should be further reduced.

Conclusion [15] For the reasons stated above, we affirm the judgment of the trial court.

[16] Affirmed.

Bradford, C.J., and Kirsch, J., concur.

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