Maurice A. Stantz v. State of Indiana (NFP)

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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. FILED Nov 05 2008, 9:51 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: MARK OLIVERO Fort Wayne, Indiana STEVE CARTER Attorney General of Indiana IAN MCLEAN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA MAURICE A. STANTZ, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 02A05-0804-CR-215 APPEAL FROM THE ALLEN SUPERIOR COURT FELONY DIVISION The Honorable Frances C. Gull, Judge Cause No. 02D04-8802-FC-35 November 5, 2008 MEMORANDUM DECISION NOT FOR PUBLICATION RILEY, Judge STATEMENT OF THE CASE Appellant-Defendant, Maurice A. Stantz (Stantz), appeals his sentence for insurance fraud, as a Class C felony, Ind. Code § 35-43-5-4.5. 1 We affirm. ISSUES Stantz presents two issues for our review, which we restate as: (1) Whether the trial court abused its discretion when sentencing him; and (2) Whether his sentence is inappropriate when the nature of his offense and his character are considered. FACTS AND PROCEDURAL HISTORY On February 14, 2008, the State filed an Information charging Stantz with insurance fraud, as a Class C felony. The Probable Cause Affidavit filed with the Information alleged that Stantz, while in jail on other charges, had made plans with his girlfriend for her to move his motorcycles to the State of Michigan, and then falsely report them as being stolen. On March 7, 2008, Stantz pled guilty. On March 28, 2008, a sentencing hearing was held. At the sentencing hearing, Stantz informed the trial court that he had been abused by his mother as a child and never knew his biological father. He also explained that, at the time of his crimes, he did not have money for food or utility bills, and was taking care of a sick friend. 1 The trial court held a joint sentencing hearing for Lower Court Cause Nos. 02D04-0712-FC-320 and 02D040802-FC-35. We address Stantz s appeal of Lower Court Cause No. 02D04-0712-FC-320 in Stantz v. State, Case No. 02A03-0804-CR-172, Slip Op. (November 5, 2008), and address Lower Court Cause No. 02D040802-FC-35 in this decision. Stantz makes identical arguments in each appeal. 2 His friend testified that Stantz had taken care of him over the previous five years and is a good man. The trial court found that Stantz s criminal history, which consisted of four prior misdemeanor convictions, three prior felony convictions, and then-pending charges in Steuben and Adams Counties, was an aggravating factor, and found Stantz s plea of guilty and his acceptance of responsibility were mitigating factors. But, the trial court refused to give Stantz s financial hardship any mitigating weight, because [e]verybody s on a tight budget . . . but people don t go out and steal five hundred air conditioner condensers to pay their bills. (Transcript p. 12). The trial court sentenced Stantz to six years to be served consecutive to his sentence for Lower Court Cause No. 02D04-0712-FC-320, which we address in Stantz v. State, Case No. 02A03-0804-CR-172, (November 5, 2008). Stantz now appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Standard of Review Our supreme court clarified a defendant s right to appellate review of a trial court s sentencing decision by stating, [s]o long as the sentence is within the statutory range, it is subject to review only for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff d on reh g, 875 N.E.2d 218. An abuse of discretion occurs if we find the trial court s decision is clearly against the logic and effect of the facts and circumstances before the court. Payne v. State, 854 N.E.2d 7, 13 (Ind. Ct. App. 2006). The trial court no longer has any obligation to weigh aggravating and mitigating factors, and therefore cannot be said 3 to have abused its discretion in failing to properly weigh those factors. I.C. § 35-38-1-7.1(d); see also Anglemyer, 868 N.E.2d at 491. Additionally, we have the authority to review the appropriateness of a sentence authorized by statute through Appellate Rule 7(B). That rule permits us to revise a sentence if, after due consideration of the trial court s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Anglemyer, 868 N.E.2d at 491. II. Abuse of Discretion Stantz argues that the trial court abused its discretion when it sentenced him. Specifically, Stantz argues that the trial court overlooked certain mitigating factors which are clearly supported by the record, those being: (1) that he was severely physically abused by his mother [while] growing up ; (2) that he never [knew] his biological father ; (3) that he had been caring for himself since the age of fifteen ; (4) that he committed these offenses in order to purchase food, medicine, and provide shelter for his friend ; and (5) that he had not been convicted of any prior thefts. (Appellant s Br. p. 11). One way in which a trial court may abuse its sentencing discretion is by omitting reasons that are clearly supported by the record and advanced for consideration. Anglemyer, 868 N.E.2d at 490-491. Because the trial court made findings of mitigating circumstances when sentencing Stantz, the trial court was required to identify all significant mitigating circumstances. Id. at 492-93. An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both 4 significant and clearly supported by the record. Id. (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1998)). However, If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist. Anglemyer, 868 N.E.2d at 493 (quoting Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)). Stantz s counsel presented the following argument to the trial court at the sentencing hearing: Your Honor, to follow up. Upon several conversations with Mr. Stantz I ve gotten to know him a little bit better. Mr. Stantz has been out on his own, fending for himself since the age of fifteen years old. He profited approximately seven hundred dollars from all these thefts and with that money he paid the utilities. He bought David medicine that David needed to survive and groceries. He was in a very vulnerable financial position and [] Zumwalt knew that when [] Zumwalt came to [] Stantz with the idea of committing these thefts of these air conditioning units. Your Honor, he has accepted responsibility. He is fifty years old. Not in the greatest of health. And he didn t do this to make a profit or become rich in any sense, he did this simply to survive and do what he had to do to keep a roof over his head and food in his stomach. **** He has been provided this morning with the entire restitution amount which I don t believe is accurately reflected in the PSI . . . . The entire restitution amount from what [the State] has handed me is $262,898.95. (Tr. pp. 6-8). A. Stantz s Claims of a Difficult Childhood We note that although Stantz now argues that the trial court abused its discretion by not finding the facts that Stantz was abused while growing up and never knew his biological father were mitigating factors, his counsel did not present argument that these facts should be 5 found to be mitigating factors to the trial court. His counsel s failure to do so detracts from the significance these potentially mitigating factors are to be given. See Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006) ( [I]f the defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the factor is not significant, and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal. ). Further, the Pre-Sentence Investigation Report (PSI) stated: The defendant reported he was the middle child of six (6) siblings. He stated he was raised by his mother and father and had a normal childhood. He informed he has a good relationship with his family and denied suffering any form of abuse. (Appellant s App. p. 68). Stantz s self-serving statements at the sentencing hearing were the only evidence of his childhood abuse or lack of relationship with his father, and in light of the PSI, those statements would not be clear evidence from which the trial court would be required to find those facts. Further, the trial court was presented with no evidence that Stantz was forced to leave home and take care of himself at the age of fifteen. His counsel made this statement, but the unsworn statements of counsel are not evidence from which the trial court could make a finding of this fact. See Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct. App. 1996), trans. denied. Moreover, evidence of a difficult childhood warrants little, if any, mitigating weight. Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000), reh g denied. For all of these reasons, we conclude that the trial court did not abuse its discretion when it did not find Stantz s difficult childhood was a mitigating factor. B. Stantz s Claim That He Stole to Pay Necessary Expenses 6 The trial court addressed Stantz s claim that he stole to pay for food, utility bills, and medicine for his friend by stating: You say you did these not to become rich but to pay bills. Everybody s on a tight budget Mr. Stantz but people don t go out and steal five hundred air conditioner condensers to pay their bills . . . that s why there are programs. (Tr. p. 12). Thus, the trial court did not overlook Stantz s claim of necessity despite clear support in the record as Stantz contends, but rather rejected Stantz s claim that the fact should be given mitigating weight. A sentencing court need not agree with the defendant s assessment as to the weight or value to be given to proffered mitigating facts. Creekmore, 853 N.E.2d at 530. Therefore, the trial court s rejection of Stantz s financial hardship is a decision which lies well within the broad discretion of the trial court when sentencing an offender. C. Lack of Prior Conviction for Theft Stantz did not argue to the trial court that the fact that he had not been previously convicted for theft was a mitigating factor. Since this fact was not advanced for the consideration of the trial court, the trial court could not have abused its discretion by failing to find it as a mitigating factor. See Anglemyer, 868 N.E.2d at 490-91. III. Appropriateness of Stantz s Sentence Stantz argues that his sentence is in inappropriate when the nature of his offenses and his character are considered. We note that the trial court sentenced Stantz to six years, which is two years in excess of the advisory sentence for his crime, insurance fraud, as a Class C felony. See I.C. § 35-50-2-6. 7 As for the nature of Stantz s crimes, we note that Stantz induced another to commit this offense since he was in jail at the time of the crime. Otherwise, Stantz s crime is not particularly heinous. Considering Stantz s character, we acknowledge that his caring for his sick friend is commendable, but since Stantz was being held in jail on other charges when he committed this crime, he was not then taking care of his sick friend. Further, Stantz has previously been convicted of four misdemeanors and three felonies, and on the same day of his guilty plea in this matter, Stantz additionally pled guilty to one Count of corrupt business influence, a Class C felony, I.C. § 35-45-6-2, and five Counts of theft, as Class D felonies, I.C. § 35-43-4-2. Also, at the time of the PSI, Stantz had charges pending against him in Steuben and Adams Counties, Indiana. Altogether, we are not convinced that Stantz s sentence is inappropriate when the nature of his offense and character are considered. CONCLUSION Based on the foregoing, we conclude that the trial court did not abuse its discretion when sentencing Stantz and that Stantz s sentence is not inappropriate when the nature of his offenses and character are considered. Affirmed. BAILEY, J., and BRADFORD, J., concur. 8

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