Compton v. State

• Decision Date: 28 August 2013
• Docket Number: No. 49A02–1301–CR–90.,49A02–1301–CR–90.
• Citation: 993 N.E.2d 326
• Parties: Kenneth COMPTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

993 N.E.2d 326

Kenneth COMPTON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1301–CR–90.

Court of Appeals of Indiana.

Aug. 28, 2013.

Appeal from the Marion Superior Court; The Honorable Kurt Eisgruber, Judge; Cause No. 49G01–1201–FB–3730.

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

PYLE, Judge.

STATEMENT OF THE CASE

Kenneth Compton (“Compton”) appeals his sentence following his guilty plea to Class B felony robbery,¹ Class B felony criminal confinement, ² and Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”).³

We affirm.

ISSUE

Whether the trial court erred in sentencing Compton.

FACTS

On January 13, 2012, Compton and an accomplice went to a Speedway gas station in Marion County. Compton, while armed with a handgun, forced a Speedway employee from the grill area to the cash register and then took cash, cigarettes, and lottery tickets. At the time of this offense, Compton had four prior convictions for Class B felony robbery under three separate cause numbers and was on parole from those robbery convictions.

On January 18, 2012, the State charged Compton with Class B felony robbery, Class B felony criminal confinement, and Class B felony unlawful possession of a firearm by a SVF.⁴

On December 10, 2012—the day of Compton's jury trial and as the jury was in the hallway—Compton pled guilty, without a written plea agreement, to all three counts as charged. When discussing Compton's open plea, the trial court discussed the sentencing potential for his plea:

THE COURT: All right. There are three counts—robbery as a class B felony, criminal confinement as a class B felony and then unlawful possession of a firearm by a serious violent felon—that's a class B felony. You understand that under some circumstances three class B felonies could be stacked on top of one another and result in a 60 year sentence—you understand that but based on the facts of this case—the way it's charged and I think the parties have discussed this—they mentioned it to me that you're really looking at a six year to 20 year window, all right—any disagreement with that from the State?

[PROSECUTOR]: No, Judge.

THE COURT: All right. And that's defense's understanding?

[DEFENSE COUNSEL]: Yes, it is, Your Honor.

THE COURT: All right. But you're lookin [sic] at a six to 20 years, all right.

DEFENDANT: Yes, sir.

(Tr. 4–5). Thereafter, the parties laid a factual basis for Compton's three offenses, and the trial court stated that it would enter judgment of conviction on the three counts.⁵

The trial court held a sentencing hearing on January 9, 2013. During the sentencing hearing, Compton's counsel acknowledged that Compton's “criminal history [was] lengthy” and stated that “[t]here [was] no way that [he] can try to sidestep that and certainly Kenneth [Compton] [was] not trying to.” (Tr. 34). Compton's counsel asked the trial court to impose a sentence of sixteen (16) years with ten (10) years executed, four (4) on community corrections, two (2) years suspended with one (1) year on probation. The State requested the trial court to impose a sentence of twenty (20) years executed. When the trial court indicated that it was going to merge the criminal confinement conviction into the robbery conviction and sentence Compton on the robbery conviction and the unlawful possession of a firearm by a SVF conviction, Compton's counsel and the prosecutor indicated that they believed that the unlawful possession of a firearm by a SVF conviction would also merge into the robbery conviction. Specifically, the following exchange occurred between the trial court, the prosecutor, and Compton's counsel:

[PROSECUTOR]: Judge, I believe that they all merge.

[DEFENSE COUNSEL]: That would be my—

THE COURT: So 3 into 1?

[DEFENSE COUNSEL]: Yes, that would be my belief as well, Judge and I think we actually—

THE COURT: I think [Count] 3 can stand on its own though can't it—it's kind of a status situation.

[PROSECUTOR]: It is, however, the B felony robbery has a weapon as its—

[DEFENSE COUNSEL]: Involved.

[PROSECUTOR]:—is what elevates it to a B felony so—

THE COURT: Yeah—you know, I was lookin [sic] at the case law on that. I think—I think they can stand on their own by virtue of their status but—and I didn't find anything otherwise. I did find some cases where they ran ‘em [sic] on a burglary, as serious violent felon and a habitual. The problem always seems to be the habitual and the serious violent felon as opposed to runnin [sic] consecutive on the underlying and the serious violent felon so I think the Court of Appeals views ‘em [sic] differently but I'll take it all into consideration but you feel they ought to merge as well?

[DEFENSE COUNSEL]: Yeah, I—also [the prosecutor] and I, I think, said as much right—on the record prior to—

THE COURT: Guilty plea?

[DEFENSE COUNSEL]:—Mr. Compton pleading open contemplating the plea so—

THE COURT: Okay.

[DEFENSE COUNSEL]:—I just wanted to put that out there.

THE COURT: All right. But I haven't seen any case law that says I can't do it which is interesting.

[DEFENSE COUNSEL]: My argument, I guess, would—would be the same as the State's—that it's the gun that gets him to the B robbery.

(Tr. 32–33). When imposing Compton's sentence, the trial court stated:

Okay. All right. Thanks. I've heard argument of counsel and I'll proceed to sentencing. The—and I think I've already spoken my peace, Mr. Compton—I mean, the folks out in the community—the victims of these robberies view you as an evil person. I think—you know, the mere mention of an armed robber makes people think you're an evil person. I'm not necessarily convinced of that but you are a high risk to our community so my sentence will be a punitive sentence. The question in my mind falls back to this—do I stack that serious violent felon? I know the opinion of counsel but it would give me more time to—to work with and I'm not sure I can't do it because of the—the nature of the charge but I guess I won't go there in this one. I do think the State's sentence is appropriate. It's a 20 year sentence at the Department of Corrections. I do so based on that criminal history—repeating the same behavior is troubling so that's an aggravator. The other aggravator is obviously you were on parole when this happened. It wasn't me that sentenced you last time. This is my first interaction with you as far as a case goes. That was the previous judge but she gave you a ten year sentence and could argue that that was a lite [sic] sentence—maybe it was a plea agreement, I don't know but somehow we gotta [sic] break you out of this cycle and right now the only way I see it is to—to keep you at the DOC for that 20 years. I—I think this recognizes that you did plead open. I think the aggravators outweigh those mitigators. I'm going to run [Count] 2 [criminal confinement] into [Count] 1 [robbery]. I'm going to run the serious violent felon concurrent but it'll be the same 20 year sentence so they'll run under Count 1 which is the robbery lead charge.

(Tr. 34–35). Thus, the trial court imposed an aggregate twenty (20) year executed sentence. Compton now appeals.

DECISION

Compton argues that the trial court erred in sentencing him. Specifically, Compton contends that: (a) the trial court abused its discretion in its finding of aggravators; and (b) his sentence is inappropriate.

A. Abuse of Discretion

Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh'g,875 N.E.2d 218 (Ind.2007). So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion will be found where 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. A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490–91.

Compton suggests that the trial court abused its discretion by using his criminal history as an aggravating circumstance. Compton also takes issue with the trial court's reference to needing to break Compton's “cycle” of committing crimes. (Compton's Br. 6). Specifically, Compton contends that he did not engage in a “cycle” of robberies because he was sentenced on the same day for his four robbery convictions that stemmed from three cause numbers. (Compton's Br. 6).

We find no abuse of discretion in the trial court's use of Compton's criminal history—which included three juvenile adjudications and five adult felony convictions—as an aggravating circumstance. A defendant's criminal history is a proper aggravating circumstance. See McCann v. State, 749 N.E.2d 1116, 1119 (Ind.2001). Moreover, “ ‘[t]he sentencing statute makes any criminal history a possible and proper aggravator.’ “ McCray v. State, 823 N.E.2d 740, 745 (Ind.Ct.App.2005) (quoting White v. State, 756 N.E.2d 1057, 1062 (Ind.Ct.App.2001), trans. denied ). See alsoI.C. § 35–38–1–7.1(a)(2). Indeed, Compton's counsel admitted during the sentencing hearing that Compton had a “lengthy” criminal history and acknowledged that it would inevitably be deemed an aggravating circumstance. (Tr. 34). Finally, Compton's argument questioning that trial court's reference to Compton's “cycle” of crime is merely an argument of semantics and amounts to nothing more than a...