Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JEFFREY G. RAFF Deputy Public Defender Fort Wayne, Indiana
FILED
Jul 20 2009, 10:23 am
of the supreme court, court of appeals and tax court
CLERK
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CHAD A. INGRAM, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )
No. 02A04-0901-CR-13
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0802-FC-53
July 20, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Chad A. Ingram appeals from his conviction and sentence for battery resulting in serious bodily injury,1 a Class C felony, raising the following issues: I. Whether the trial court erred in ruling that he waived his right to a competency determination by failing to cooperate with courtappointed psychiatrists; and Whether his eight-year executed sentence was inappropriate in light of the nature of the offense and the character of the offender.
II.
We affirm. FACTS AND PROCEDURAL HISTORY On February 28, 2008, Ingram was at the New Haven, Indiana, home of his mother and step-father, Kenneth Colley. Ingram and Colley were watching television when Ingram began complaining about the way Colley treated Ingram‟s mother. As Colley stood up to walk to the kitchen, Ingram struck him multiple times on the face and head rendering him unconscious. Testimony at trial revealed that the weapon was likely a golf club. Tr. at 50. When Colley regained consciousness, he walked to his neighbor‟s house to call 911. Colley‟s injuries—later determined to be two fractured cheekbones, a fractured skull, and damaged eardrums—caused such swelling of his face that his neighbors could not initially recognize him. Colley was hospitalized for three days. After responding to the 911 call, police found Ingram hiding under a car in his grandmother‟s garage. Ingram was charged with one count of battery as a Class C felony, two counts of invasion of privacy, each as a Class D felony, and one count of resisting law enforcement as a Class A misdemeanor. On May 19, 2008, in response to
1
See Ind. Code § 35-42-2-1(a)(3).
2
Ingram‟s request for a psychiatric evaluation and sanity determination, the trial court appointed two psychiatrists to examine Ingram for sanity and competency. Ingram
visited with both doctors, who reported that Ingram refused to cooperate with the examination—he refused to speak or make eye contact, he looked out the window, refused to talk, and would not answer questions. Status Hr’g Tr. at 3. At the June 18, 2008 status hearing, the trial court learned that Ingram could follow the directions of one psychiatrist—he came into the office, sat where he was instructed to sit, and followed directions when the doctor explained that the examination could not be completed, and therefore, he could leave. Id. at 4. He did not, however, otherwise cooperate with the psychiatrist while in the office. Id. at 3. Ingram
acknowledged at the status hearing that he had been examined by the same ps ychiatrist in 2005, and at that time, he understood the reason for the exam, cooperated with the doctor, and understood the nature of the charges against him. Id. at 6. At the status hearing, Ingram indicated that he had no intention of cooperating with the psychiatrist regarding the instant offense. Id. at 4-5. When asked why not, he indicated he did not want to cooperate. Id. at 5. The trial court explained to Ingram that the examination was necessary to “determine whether [Ingram] was competent to stand trial.” Id. at 6. Ingram indicated that he understood that by refusing to cooperate with the doctors he was “giving up the opportunity to have that examination conducted.” Id. at 7. The trial court concluded, “Based on your non-compliance, the Court would find that you‟ve waived the right to be examined for competency or sanity and you‟ve indicated here in open court that you will 3
not cooperate and will continue to remain incommunicative, not only with the doctors but with your attorney.” Id. at 9. The trial court set a trial date, asked Ingram if the assigned date was acceptable, and Ingram answered, “Sure.” Id. Ingram‟s case proceeded to trial on November 19, 2008. Prior to jury
deliberations, the two counts alleging invasion of privacy were “removed from [the jury‟s] consideration.” Trial Tr. at 100. The jury returned verdicts of guilty of battery as a Class C felony and not guilty of resisting law enforcement. The trial court sentenced Ingram to eight years in prison on the battery conviction. Ingram now appeals. DISCUSSION AND DECISION I. Waiver of Right to Competency Determination
Ingram first contends that the trial court erred in finding that, because he failed to communicate and cooperate with the doctors appointed to examine him, he waived his right to an examination to determine his competency to stand trial and to present an insanity defense. Appellant’s Br. at 4. “The trial court is in the best position to assess whether the defendant has made a knowing and intelligent waiver, and the trial court‟s finding will most likely be upheld „where the judge has made the proper inquiries and conveyed the proper information, and reaches a reasoned conclusion.‟” Drake v. State, 895 N.E.2d 389, 893 (Ind. Ct. App. 2008) (discussing waiver in context of right to counsel). Nevertheless, the trial court‟s conclusion whether a waiver was knowing and voluntary is reviewed de novo. Id. Prior to trial, Ingram filed a request for a psychiatric examination contending that he lacked the ability to understand the proceedings and that his mental state was such that 4
he was not responsible for the battery.
Appellant’s App. at 21.
“A person is not
responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.” Ind. Code § 35-41-3-6(a). The burden of proof is on the defendant to establish the defense of insanity by a preponderance of the evidence. Ind. Code § 35-41-4-1. In response to Ingram‟s request, the trial court appointed two psychiatrists to examine Ingram. Ingram failed to cooperate with either doctor. During the hearing pertaining to Ingram‟s mental status, the State presented evidence of Ingram‟s behavior while meeting with both doctors, but focused primarily on his visit with “Doctor Trier.” Status Hr’g Tr. at 4. Dr. Trier‟s report revealed as follows: [H]e followed my directions about coming into the office, followed directions where to sit, followed my directions when I told him that I couldn‟t complete the examination and he would have to leave and return. Id. Additionally, Ingram had met with Dr. Trier on a previous occasion and had been cooperative. In response to trial court questioning, Ingram indicated that he did not intend to cooperate in the future. Id. at 5. Ingram‟s counsel urged the court to conduct a dialogue on this subject, “with the indication being that [Ingram] is giving up the right to assert the defense [counsel had] asserted on his behalf because of his conduct and his statement.” Id. The trial court asked Ingram the following questions: COURT: . . . You understand Mr. Ingram that your attorney wants you to be examined to determine whether you‟re competent to stand trial?
INGRAM: Right. 5
COURT:
Okay. And that part of that assertion is also a defense of insanity, meaning that you‟re not responsible for your behavior by reason of insanity. You understand that?
INGRAM: Right. COURT: And you understand that I‟ve appointed doctors to examine you Mr. Ingram and if you don‟t wish to cooperate with these gentlemen that you are giving up the opportunity to have that examination conducted?
INGRAM: (No response heard.) DEFENSE COUNSEL: You‟ve nodded that you understand that?
INGRAM: (Nods in the affirmative.) Id. at 6-7. Further proceedings ensued. The trial court instructed Ingram that failure to cooperate with the doctors would be “ill advised” on his part. Id. at 8. The trial court advised Ingram of the consequences of his behavior, and Ingram indicated that he understood. The trial court concluded, “Based on your non-compliance, the Court would find that you‟ve waived the right to be examined for competency or sanity and you‟ve indicated here in open Court that you will not cooperate and will continue to remain incommunicative, not only with the doctors but with your attorney.” Id. at 9. In light of Ingram‟s behavior and responses to questions asked by the court and his counsel, the trial court did not err in finding that Ingram had knowingly waived his right to a psychiatric examination.2
Following the decision of a panel of our court in State v. Berryman, 796 N.E.2d 741 (Ind. Ct. App. 2003), the General Assembly amended I.C. 35-36-2-2 to provide the protocol when a defendant fails to communicate, participate or cooperate with medical witnesses appointed by the court to examine the
2
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II.
Appropriateness of Sentence
Ingram claims that his sentence is “inappropriate” and that “insufficient consideration was given to his mental state.” Appellant’s Br. at 4. While Ingram loosely combines an argument of inappropriateness with one that his mental illness deserved more mitigating weight, following our Supreme Court‟s decision in Anglemyer, we address only his claim of inappropriateness. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (“Because the trial court no longer has any obligation to „weigh‟ aggravating and mitigating factors against each other when imposing a sentence, . . . a trial court cannot now be said to have abused its discretion in failing to „properly weigh‟ such factors.”), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “A 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.” Ind. Appellate Rule 7(B). The question under Indiana Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). The defendant has the burden of persuading us that his or her sentence is inappropriate. Id. at 343. When examining both the nature of the offense and the defendant‟s character, “we may look to any factors
defendant. In its present form, the statute provides that the defendant bears the burden of proving by a preponderance of the evidence that his failure to cooperate was the result of the defendant‟s mental illness. Here, the defendant did not claim that his mental illness was the cause of his refusal to cooperate, did not put on any evidence of such claim and made no offer of proof to establish such a claim.
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appearing in the record.” Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. Ingram was convicted of battery resulting in serious bodily injury, a Class C felony for which the trial court had the discretion to impose a sentence ranging from two to eight years. Ind. Code § 35-42-2-1(a)(3); Ind. Code § 35-50-2-6(a). The trial court imposed the maximum sentence of eight years. Ingram contends that the sentence is inappropriate in light of the nature of the offense and the character of the offender. As to the nature of the offense, Ingram struck Colley in the face and head rendering him unconscious, fracturing his cheekbones and skull, and damaging his eardrums. Colley testified at trial that, ten months after the battery, he continued to experience spinning and near “black outs” from the damage to his eardrums. Trial Tr. at 37-38. Ingram‟s attack on Colley was unexpected and extremely violent. Colley‟s injuries were “life threatening” and left him hospitalized for three days. Id. at 37, 52. Nothing about the nature of Ingram‟s crime suggests that an eight-year sentence was inappropriate. Neither does the character of the offender suggest that the sentence is inappropriate. The trial court considered Ingram‟s pre-sentence investigation report, Ingram‟s own testimony, the comments of his mother and his step-father, the argument of counsel, and the letter submitted by Ingram‟s mother to the court. At the sentencing hearing, the trial court provided the following reasons for imposing an eight-year sentence:
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Court does find as aggravating circumstances your prior criminal record and failed efforts at rehabilitation consisting of, from a period of time from 1993 to 2008, sixteen (16) misdemeanors, seven (7) prior felony convictions. Six (6) of your convictions are for Battery. Again, 1993 to 2008 you‟ve received minimal jail sentences, suspended jail sentences. You‟ve . . . been given the benefit of counseling, probation, jail, the Department of Correction, parole, home detention, and you were on parole at the time you committed this offense. . . . You‟ve been through this system and unfortunately there‟s not a whole lot left that the system has Mr. Ingram. I do accept as a mitigator the allegation of mental illness and the diagnosis that you are bipolar and schizophrenic. . . . Would find that the aggravating circumstance of your criminal record outweighs the mitigating circumstances of the allegation of mental illness. Hopefully, Mr. Ingram, with the structure in the Department of Correction you can once again retain or come to some type of understanding that you obviously need to be medicated. I will recommend to the Department of Correction that they provide you with mental health treatment and medication if necessary within that setting. Id. at 18-21. Ingram‟s criminal history included crimes of battery, burglary, theft, escape, leaving the scene of an accident, invasion of privacy, and resisting law enforcement. The trial court noted that Ingram has been afforded counseling, probation, parole, and home detention, yet his criminal conduct was both continuing and escalating. Sentencing Tr. at 19. Prior leniency has had little deterrent or reformative effect. Ingram‟s extensive criminal history sheds light on his character. Ingram has failed to persuade this court that his sentence is inappropriate. Affirmed. RILEY, J., and MATHIAS, J., concur.
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