Opinion
Court of Appeals Case No. 20A-CR-2005
03-31-2021
James R. TABB, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Mark A. Thoma, Leonard, Hammond, Thoma & Terrill, Fort Wayne, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Steven J. Hosler, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Mark A. Thoma, Leonard, Hammond, Thoma & Terrill, Fort Wayne, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Steven J. Hosler, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
[1] On June 8, 2019, James R. Tabb, Jr. became engaged in a confrontation with his son, which escalated after Tabb retrieved a loaded firearm from his vehicle and fired shots both in the air and at his son, striking his son in the right leg. Tabb was subsequently convicted of Level 5 felony battery and Level 6 felony criminal recklessness and sentenced to an aggregate four-year term, with three years executed in the Indiana Department of Correction ("DOC") and one year suspended to probation. Tabb challenges his aggregate four-year sentence on appeal, arguing both that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History
[2] During the early morning hours on June 8, 2019, Carl Jones and his girlfriend got into an argument and Jones called his friend, Tabb, "to come and pick him up." Appellant's App. Vol. II p. 12. At the time, Tabb's son Dominique, with whom Tabb does "not get along well," was at Jones's home for a weekly card game. Appellant's App. Vol. II p. 12. Once Tabb arrived at Jones's home, he and Dominique got into an argument, which turned into a shoving match. An eyewitness later indicated that Tabb had initiated the confrontation.
[3] At some point during the confrontation, Tabb "tried to charge at" Dominique and Dominique punched Tabb in the face. Appellant's App. Vol. II p. 12. Tabb walked away from the confrontation, went to his vehicle, and retrieved a firearm. Tabb re-engaged in the confrontation, firing a few shots into the air before pointing the firearm at Dominique. Tabb fired the firearm, striking Dominique in the right leg. Tabb left the scene and the eyewitnesses called 911. Dominique was subsequently transported to the hospital in "serious condition." Appellant's App. Vol. II p. 12.
[4] On August 22, 2019, the State charged Tabb with Level 5 felony battery and Level 6 felony criminal recklessness. Tabb pled guilty as charged on September 15, 2020. On October 6, 2020, the trial court sentenced Tabb to an aggregate four-year sentence, with three years executed in the DOC and one year suspended to probation.
Discussion and Decision
[5] After Tabb entered into an open plea, the trial court sentenced Tabb to a term of four years for his Level 5 felony battery conviction and two years for his Level 6 felony conviction. The trial court ordered that the sentence for the Level 6 felony conviction run concurrent to the sentence for the Level 5 felony conviction, for an aggregate four-year sentence. A person who commits a Level 5 felony "shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years." Ind. Code § 35-50-2-6(b). A person who commits a Level 6 felony "shall be imprisoned for a fixed term of between six (6) months and two and one-half (2½) years, with the advisory sentence being one (1) year." Ind. Code § 35-50-2-7(b). Thus, in sentencing Tabb to an aggregate four-year sentence, the trial court did not impose a maximum sentence but rather sentenced Tabb to a slightly aggravated sentence. Tabb challenges his aggregate four-year sentence on appeal, arguing both that the trial court abused its discretion in sentencing him and that his sentence is inappropriate.
I. Abuse of Discretion
[6] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g , 875 N.E.2d 218 (Ind. 2007). "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." Id. (quotation omitted).
We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. Anglemyer , 868 N.E.2d at 490–91. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if "the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law." Id.
Baumholser v. State , 62 N.E.3d 411, 416 (Ind. Ct. App. 2016). A single aggravating circumstance may be sufficient to enhance a sentence. Id. at 417.
[7] In sentencing Tabb, the trial court found the nature and circumstances of Tabb's actions to be an aggravating factor. The trial court also found the fact that Tabb took responsibility for his actions and pled guilty to be a mitigating factor. In challenging his sentence, Tabb claims that the trial court abused its discretion by failing to find the following to be mitigating factors: (1) he has lived a law-abiding life for a substantial period prior to the commission of the crimes, (2) his imprisonment would result in a hardship on his dependents, (3) he acted under strong provocation, and (4) his character and attitude suggest that he is unlikely to commit another crime. Tabb also claims that the trial court abused its discretion in finding the nature and circumstances of his actions to be an aggravating factor.
A. Mitigating Factors
[8] Although a sentencing court must consider all evidence of mitigating factors offered by a defendant, the finding of mitigating factors rests within the court's discretion. Henderson v. State , 769 N.E.2d 172, 179 (Ind. 2002). A trial court is neither required to find the presence of mitigating factors, Fugate v. State , 608 N.E.2d 1370, 1374 (Ind. 1993), nor obligated to explain why it did not find a factor to be significantly mitigating. Sherwood v. State , 749 N.E.2d 36, 38 (Ind. 2001). "A court does not err in failing to find mitigation when a mitigation claim is highly disputable in nature, weight, or significance." Henderson , 769 N.E.2d at 179 (internal quotations omitted).
[9] While Indiana law "mandates that the trial judge not ignore facts in the record that would mitigate an offense, and a failure to find mitigating circumstances that are clearly supported by the record may imply that the trial court failed to properly consider them," Sherwood , 749 N.E.2d at 38, an allegation that the trial court failed to find a mitigating factor "requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record." Carter v. State , 711 N.E.2d 835, 838 (Ind. 1999). Furthermore, "the trial court is not required to weigh or credit the mitigating evidence the way appellant suggests it should be credited or weighed." Fugate , 608 N.E.2d at 1374.
1. Law-Abiding Life
[10] In sentencing Tabb, the trial court stated, with respect to Tabb's criminal record, "as I look through your presentence investigation report, I do agree with the State that you don't have a very lengthy record. In fact, you only have a few misdemeanors and no prior felony record." Tr. Vol. II p. 32. Tabb argues that "although the court did acknowledge that [he] did not have a lengthy record, there is nothing in the record to indicate that the court considered this fact as a mitigating circumstance." Appellant's Br. p. 20. We agree with the State that, while the trial court did not find Tabb's lack of a history of criminal behavior to be a significant mitigating factor, it is clear from the record that the trial court considered his lack of a criminal history and balanced Tabb's minimal criminal history with the fact that he had lived a largely law-abiding life.
[11] Again, a trial court is neither obligated to explain why it did not find a factor to be significantly mitigating, Sherwood , 749 N.E.2d at 38, nor "required to weigh or credit the mitigating evidence the way appellant suggests it should be credited or weighed." Fugate , 608 N.E.2d at 1374. Thus, the trial court was not required to credit Tabb's minimal criminal history the same mitigating weight as Tabb argues it should have been credited or to explain why it did not find Tabb's minimal criminal history to warrant significant mitigating weight. Given that the trial court clearly considered the fact that Tabb has lived a largely law-abiding life, we cannot say that the trial court abused its discretion in failing to find this factor to be a significant mitigating factor.
2. Undue Hardship on Dependents
[12] We have previously concluded that a trial court "is not required to find that a defendant's incarceration would result in undue hardship on [his] dependents." Benefield v. State , 904 N.E.2d 239, 247 (Ind. Ct. App. 2009) ; see also Gray v. State , 790 N.E.2d 174, 178 (Ind. Ct. App. 2003). Stated differently, "[m]any persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in an undue hardship." Dowdell v. State , 720 N.E.2d 1146, 1154 (Ind. 1999).
[13] Tabb argues that while there was evidence in the record that various family members, including his wife and two of his children, were dependent upon him, "[n]othing in the record reflects that the court gave any consideration of the undue hardship that would result to the family as a result of [his] incarceration." Appellant's Br. p. 20. Tabb, however, did not point to any special circumstances to show that his incarceration would result in an undue hardship to his family. The record reflects that Tabb's wife was gainfully employed, and although Tabb argued that he paid child support for two of his children, he failed to demonstrate the degree to which his children rely upon him for support. See generally Anglin v. State , 787 N.E.2d 1012, 1018 (Ind. Ct. App. 2003) (providing that trial court did not abuse its discretion in not finding mitigating circumstance where record did not reveal the degree of daughter's reliance upon defendant), trans. denied. Tabb has also failed to point to any evidence or argument in the record that would prove that the hardship suffered by his dependents would be "undue" in the sense that it would be any worse than that normally suffered by a family whose relative is incarcerated. See Nicholson v. State , 768 N.E.2d 443, 448 n.13 (Ind. 2002) (providing that the trial court did not abuse its discretion by not finding undue hardship to be a significant mitigating factor where Nicholson provided no evidence to demonstrate that the hardship to his family would be any worse than that normally suffered by a family whose relative is imprisoned).
[14] Again, an allegation that the trial court failed to find a mitigating factor "requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record." Carter , 711 N.E.2d at 838. Given that Tabb has failed to establish that any hardship suffered by his family would be worse than that normally suffered by a family whose relative is imprisoned, we conclude that Tabb has failed to establish that the mitigating evidence relating to the alleged undue hardship was both significant and clearly supported by the record. As such, the trial court did not abuse its discretion in failing to find that this factor warranted significant mitigating weight.
3. Acted Under Strong Provocation
[15] Tabb further claims that "[t]he record in this cause also clearly demonstrates that [he] was provoked" and "[n]othing in the record in this case demonstrates whether or not the court considered that [he] acted under strong provocation." Appellant's Br. p. 20. We cannot agree with Tabb's claim that the record "clearly demonstrates" that he was provoked into shooting Dominique in the leg. In fact, one of the eyewitnesses told responding officers that Tabb had initiated the confrontation. Furthermore, Tabb made the decision to escalate the confrontation by disengaging, retrieving a firearm from his vehicle, and re-engaging in the confrontation by firing shots both in the air and at Dominique. Tabb has failed to establish that the evidence supporting this asserted mitigating factor was both significant and clearly supported by the record. The trial court, therefore, did not abuse its discretion in failing to find that this factor warranted significant mitigating weight.
4. Likelihood to Reoffend
[16] Tabb last argues that the trial court abused its discretion in failing to find the fact that he was unlikely to reoffend to be a significant mitigating factor. In support of this argument, Tabb points only to his Indiana Risk Assessment System ("IRAS") score of ten, which "puts [him] in the LOW risk category to reoffend." Appellant's App. Vol. II p. 50. However, we have previously concluded that " ‘the offender risk assessment scores do not in themselves constitute, and cannot serve as, an aggravating or mitigating circumstance.’ " Kayser v. State , 131 N.E.3d 717, 722 (Ind. Ct. App. 2019) (quoting J.S. v. State , 928 N.E.2d 576, 578 (Ind. 2010) ). "Our Indiana Supreme Court has explained that scores on a risk assessment instrument ‘are not intended to serve as aggravating or mitigating circumstances nor to determine the gross length of sentence[.]’ " Id. (quoting Malenchik v. State , 928 N.E.2d 564, 575 (Ind. 2010) ) (emphasis in Kayser ). Thus, given the lack of any other evidence relating to whether Tabb was likely to reoffend, we conclude that the trial court did not abuse its discretion by failing to find that Tabb's IRAS score warranted significant mitigating weight. See id.
B. Aggravating Factor
[17] Tabb also contends that the trial court abused its discretion in finding the nature and the circumstances of his crime to be an aggravating factor. Specifically, Tabb asserts that
[I]t is of great concern to Mr. Tabb that the court found as an aggravating circumstance the facts and circumstances of the case. In this regard, [the trial court] found Mr. Tabb's actions to be "very premeditated." But the record does not support the trial court's conclusion of premeditation. Mr. Tabb went to the home of his friend, Carl Jones, to give him a ride. When he arrived, Mr. Tabb got into an argument with his son, Dominique. Pushing and shoving progressed to the point where Dominique struck Mr. Tabb in the face. Provoked, and in the heat of the moment, Mr. Tabb went to his vehicle, returned with a firearm and shot Dominique once in the leg. To conclude that the foregoing was a premeditated act is simply not supported by the record.
Appellant's Br. pp. 22–23 (internal record citations omitted).
[18] " ‘Generally, the nature and circumstances of a crime is a proper aggravating circumstance.’ " Hudson v. State , 135 N.E.3d 973, 980 (Ind. Ct. App. 2019) (quoting Gomillia v. State , 13 N.E.3d 846, 853 (Ind. 2014) ). In finding the nature and circumstances to be an aggravating factor, the trial court stated as follows:
I can appreciate family squabbles. I can appreciate father and son squabbles. This was more than that. What struck me when I read the probable cause and then heard the facts outlined by the State is that this was a very premeditated act to leave the shoving match and the fight, the fist fight, walk to your car, which there was a loaded hand gun in the car, you could have walked away. You could have gotten in the car. You could have said I'm going to walk away. I'm going to take Uncle Carl home and leave, but you premeditatedly came back and didn't just fire the weapon in the air. You fired it at your son. You fired it at another human being, and ... you are lucky you are not looking at a murder case right now. I find it perplexing.
Tr. Vol. II pp. 32–33. The record demonstrates that Tabb made a conscious decision to escalate the confrontation when, after disengaging from the confrontation and walking away, he decided to retrieve a firearm from his vehicle, re-engage in the confrontation, and fire the weapon both in the air and at his son. Given this decision, we cannot say that the trial court abused its discretion by finding that Tabb's actions were premeditated.
II. Appropriateness of Sentence
[19] Indiana Appellate Rule 7(B) provides that "The 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." In analyzing such claims, we "concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character." Paul v. State , 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted). The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State , 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[20] In challenging the appropriateness of his sentence, Tabb argues that the trial court improperly imposed an enhanced sentence because "[n]one of the particular facts and circumstances of this case set this matter apart from those generally associated with this type of crime." Appellant's Br. p. 23. We cannot agree. In our view, the nature of the circumstances is egregious in that Tabb escalated a mere shoving match and fistfight with his son to an altercation involving gunfire. Tabb shot his son in the leg before leaving the scene without knowledge of his son's condition. The serious nature of Tabb's actions is further evidenced by the fact that Dominique was classified as being in "serious condition" when he was subsequently transported to the hospital. Appellant's App. Vol. II p. 12.
[21] As for Tabb's character, multiple witnesses testified at sentencing that Tabb was of a good character. The trial court acknowledged that there seemed to be some disconnect relating to Tabb's character, stating as follows:
I heard the Pastor who I have great respect for come in today and all of the character witnesses that you bring, I have a hard time ferreting through the man, the decency of a person that I think you are when you live your life daily, I mean I heard outlined just that you are incredibly decent, incredibly giving, but I have to balance that with this horrible criminal act of shooting somebody. It doesn't make sense to me.
Tr. Vol. II p. 33. While Tabb may have generally led a law-abiding life and held himself out as being of high character, it almost goes without stating that the fact that he escalated a mere shoving match and fistfight with his son by disengaging from the confrontation, retrieving a firearm, re-engaging in the confrontation, shooting his son, and leaving the scene without knowledge of his son's condition, reflects poorly on his character. Tabb has failed to convince us that his aggregate four-year sentence is inappropriate. See Sanchez , 891 N.E.2d at 176 ("The defendant bears the burden of persuading us that his sentence is inappropriate.").
[22] The judgment of the trial court is affirmed.
Vaidik, J., and Brown, J., concur.