Opinion
24A-CR-96
06-21-2024
David E. Padgett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Steven E. Ripstra Ripstra Law Office Jasper, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Pike Circuit Court The Honorable Jeffery L. Biesterveld, Judge Trial Court Cause No. 63C01-2111-F2-000282
ATTORNEY FOR APPELLANT Steven E. Ripstra Ripstra Law Office Jasper, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] David Padgett pled guilty "open" to burglary as a level 2 felony. The trial court sentenced Padgett to 20 years in the Indiana Department of Correction. Padgett presents one issue on appeal: Whether the trial court abused its discretion in identifying mitigating factors during sentencing.
[¶2] We affirm. Facts and Procedural History
[¶3] Padgett married his wife Kara in 2020, and the couple lived together in Winslow, Indiana. The couple had a volatile relationship where they would separate for periods of time and Kara would stay in Evansville until they made amends. Dennis Clark was Padgett's friend who lived nearby. On four or five occasions, Padgett had dropped Kara off at Clark's house in the midst of a fight so she could stay there until she was able to get a ride to Evansville.
[¶4] On November 2, 2021, Padgett brought Kara to Clark's house because they were fighting and Kara needed to stay there while she waited to get a ride to Evansville. Once Padgett left, Kara told Clark that Padgett "had been on klonopin and vo[d]ka for a couple of days" and "she came up there to get away from him." Tr. Vol. II at 48. The next morning, Padgett came back to Clark's house and tried to get Kara to come home; she refused. Later that day, Kara left for Evansville.
[¶5] That night, a friend warned Clark that Padgett and his cousin Bradley Woods were going to his house to "rough [him] up." Tr. Vol. II at 50. Later, Padgett showed up at Clark's front door acting aggressive and asking to see Kara. Clark told Padgett that Kara had left earlier in the day and asked Padgett to leave. Padgett refused and forced his way into the house.
[¶6] Padgett and Clark began a shoving match inside the home. The fight moved through multiple rooms in the house, and eventually Clark grabbed a gun he stored by his back door. At this point, Padgett started choking Clark and yelled "he's got a gun" to Woods, who was waiting outside. Tr. Vol. II at 50. While Padgett was choking and trying to disarm Clark, Woods came into the house with a baseball bat and struck Clark in the head. The force caused Clark to temporarily lose consciousness. When Clark regained consciousness, he tried to get away, but Padgett choked him, struck him in the head with a potted plant, and kicked him in the face while wearing a steel-toe boot. Padgett and Woods then stole Clark's gun and left the house. Clark sustained significant injuries, including multiple lacerations to the face, torn cartilage in his nasal passages, and a damaged orbital socket.
[¶7] Padgett pled guilty "open" by plea agreement to aiding, inducing, or causing burglary while leaving sentencing discretion. At sentencing, Padgett and the State presented evidence of proposed mitigating and aggravating factors. The trial court found the following aggravating factors: (1) the harm suffered by Clark was significant and greater than necessary to prove the elements of the offense; (2) Padgett has a significant criminal history. The trial court determined that Padgett entering a plea agreement was the only mitigating factor. The trial court sentenced Padgett to 20 years in the Indiana Department of Correction. Padgett now appeals.
Discussion and Decision
[¶8] Padgett contends that the trial court erred in issuing a 20-year sentence. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023). There are several ways a trial court may abuse its discretion in determining a defendant's sentence, including entering a sentencing statement that includes aggravating and mitigating factors that are not supported by the record, entering a sentencing statement that omits reasons that are clearly supported by the record, or entering a sentencing statement that includes reasons that are improper as a matter of law. Kayser v. State, 131 N.E.3d 717, 722 (Ind.Ct.App. 2019) (citing Anglemyer, 868 N.E.2d at 490-91); McElfresh v. State, 51 N.E.3d 103, 111 (Ind. 2016) (citing Anglemyer, 868 N.E.2d at 490-91).
[¶9] Padgett claims that the trial court abused its discretion by omitting certain mitigating factors from its sentencing statement. To succeed on this claim, Padgett must demonstrate that "the trial court failed to identify or find a mitigating factor" by establishing that "the mitigating evidence is both significant and clearly supported by the record." McElfresh, 51 N.E.3d at 112 (quoting Anglemyer, 868 N.E.2d at 493). This showing proves difficult because, "[i]f 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." Id. (quoting Anglemyer, 868 N.E.2d at 493).
[¶10] On appeal, Padget asserts that he provided evidence of the following ten factors he believes to be mitigators:
1. He was cooperative with law enforcement; 2. His father was abusive; 3. He pled guilty, saving time and expenses; 4. Substance abuse contributed to his actions; 5. The crime was the result of circumstances unlikely to recur; 6. He has a limited criminal history; 7. He would respond to short-term incarceration; 8. He held a job for five years, demonstrating a change in attitude/character; 9. He will pay restitution to the victim; and 10. Incarceration would result in hardship for his mother. We address each of Padgett's claims in turn.
[¶11] We first note that at sentencing Padgett did not present his cooperation with law enforcement or abuse from his father as mitigators, nor did he argue for these to be considered as mitigators, so he has waived these arguments on appeal. See Bryant v. State, 984 N.E.2d 240, 252 (Ind.Ct.App. 2013) ("Failure to present a mitigating circumstance to the trial court waives consideration of the circumstance on appeal.") Additionally, the trial court recognized his guilty plea as a mitigating factor.
[¶12] Padgett claims that the trial court should have seen his substance abuse as a mitigating factor. The presence of a substance abuse problem "is not necessarily a factor that weighs in favor of a lesser sentence." Marley v. State, 17 N.E.3d 335, 341 (Ind.Ct.App. 2014). Instead, a failure to adequately address substance abuse issues may be an aggravating factor for sentencing. Id. (citing Hape v. State, 903 N.E.2d 977, 1002 (Ind.Ct.App. 2009)). The defendant has a long history of substance abuse that started at the age of 13, including the recreational use of marijuana, crack cocaine, and prescription pills. Padgett acknowledges that substance abuse "substantially contributed to his actions." Appellant's Br. at 15. At the time of the offense, Padgett had been on a two-day vodka and klonopin binge. Thus, we are unpersuaded that his substance abuse should have been a mitigating factor; additionally, his continued substance abuse shows the crime was not the result of circumstances unlikely to recur. Padgett blames his drug use and behavior on his volatile marriage with Kara, but his history of substance abuse started long before his marriage.
[¶13] Padgett contends that the trial court should have viewed his criminal history as a mitigating circumstance. "At sentencing, '[t]he significance of a criminal history varies based on the gravity, nature and number of prior offenses as they relate to the current offense.'" McElfresh, 51 N.E.3d at 112 (quoting Williams v. State, 838 N.E.2d 1019, 1021 (Ind. 2005)). Here, the court determined Padgett's criminal history was an aggravating circumstance. Padgett's criminal history includes 11 misdemeanor convictions, including multiple drug and alcohol related offenses, and 1 felony conviction for residential entry. We cannot say that the trial court erred by seeing Padgett's criminal history as an aggravating factor rather than a mitigating factor. Padgett's criminal history also weighs against his contention that he would respond well to short-term incarceration. Padgett has been subject to short sentences and successfully completed probation twice, yet he continues to offend.
[¶14] Padgett's remaining alleged mitigators have little basis in the record. He claims that he has shown a change in character by having a job with Toyota for five years. However, the evidence at sentencing showed that Padgett had quit this job more than a year before the instant offense occurred and he was living off unemployment benefits and odd jobs. These circumstances also weigh against Padgett's proffered mitigator where he allegedly would pay $12,281.45 in restitution for Clark's medical expenses. This restitution would only be paid after Padgett was released from incarceration and gained employment. Thus, the trial court need not consider this desire to pay restitution as a mitigating factor. See Creekmore v. State, 853 N.E.2d 523, 530 (Ind.Ct.App. 2006). Lastly, Padgett claims that his incarceration would cause undue hardship to his mother who needed knee replacements and was recovering from back surgery. Padgett's mother did not testify to needing her son's assistance. Without her testimony, the trial court would necessarily have to believe Padgett; however, Padgett was shown to have testified inconsistently several times during the pendency of this case. The court could have, and likely did, discount Padgett's self-serving evidence on this factor. Additionally, Padgett had been in jail for nearly two actual years by the time of the sentencing hearing. Padgett had not been caring for his mom for an extended period of time which also discounts any reason to believe his continued incarceration would cause undue hardship to her.
[¶15] Padgett has failed to show that his alleged mitigators are supported by the evidence. We conclude that the trial court did not abuse its discretion in sentencing Padgett.
[¶16] Affirmed.
Riley, J., and Kenworthy, J., concur.