Henderson v. State, 58A01-0511-CR-520.

• Decision Date: 01 June 2006
• Docket Number: No. 58A01-0511-CR-520.,58A01-0511-CR-520.
• Parties: Bonnie HENDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

848 N.E.2d 341

Bonnie HENDERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-0511-CR-520.

Court of Appeals of Indiana.

June 1, 2006.

Leanna Weissmann, Lawrenceburg, for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Bonnie Henderson appeals from the sentence imposed by the trial court following her guilty plea to Conspiracy to Commit Arson with Intent to Defraud,¹ a class C felony. In particular, Henderson argues that the trial court considered an improper aggravating circumstance, failed to consider a mitigating circumstance, erred in weighing aggravators and mitigators, and imposed a sentence that is inappropriate in light of the nature of the offense and her character. Henderson also argues that the trial court erred in ordering her to pay restitution to Allstate Insurance Company (Allstate) in the amount of $20,932.48 because an insurance company's investigative expenses are not compensable as criminal restitution. Finding that the trial court properly sentenced Henderson and improperly ordered her to pay restitution to Allstate, we affirm in part, reverse in part, and remand with instructions to amend the restitution order by removing that portion of the order requiring Henderson to pay restitution to Allstate.

FACTS

Henderson owned a trailer in Rising Sun, but she had recently sold it on land contract to Mark Johnson, who was in the process of making improvements to the trailer. On October 2, 2003, Henderson, her sister, Connie Emery, and Emery's son, Glen Richards, agreed to set fire to the trailer. Henderson offered Richards, who was upset because he had just lost his job, $2500 to help her set the fire. Emery drove Henderson and Richards to the trailer, and Henderson and Richards, who had covered their hands with socks, entered the trailer through a window. Next, they poured an accelerant into the trailer and turned on the gas stove, igniting multiple fires.

Dearborn County Deputy Sheriff Kevin Clapp happened to discover the fire while out on patrol, kicked in the front door, and entered the trailer to make sure that no one was inside. In doing so, the deputy inhaled smoke. Rising Sun Volunteer Fire Chief Kevin Armstrong entered the trailer and detected the odor of gas, which was apparently coming from the open valves on the stove.

The fire caused extensive damage to the trailer, and Henderson filed an insurance claim for $20,000 to $25,000. An Allstate investigator testified that Allstate expended $20,932.48 in investigating the fire.

On June 22, 2004, the State charged Henderson with class B felony arson, class B felony to commit arson, class B felony arson for hire, class B felony conspiracy to commit arson for hire, class C felony arson with intent to defraud, class C felony conspiracy to commit arson with intent to defraud, and class D felony fraud. On July 14, 2005, Henderson pleaded guilty to class C felony conspiracy to commit arson with intent to defraud in exchange for the dismissal of the remaining charges.²

On August 25, 2005, the trial court conducted a sentencing hearing. The trial court found Henderson's criminal history, consisting of a 1990 Ohio conviction for possession of a schedule IV drug, as the sole aggravating factor. As a mitigating circumstance, the trial court considered Henderson's guilty plea, which showed her willingness to take responsibility for the crime, avoided a jury trial, and conserved the assets of the State and the court. Concluding that the aggravator and mitigators were equally balanced, the trial court imposed the four-year presumptive sentence with two years suspended to probation.

As a condition of probation, the trial court ordered Henderson to pay restitution to Johnson—the person to whom she had sold the trailer on contract—in the amount of $965 and to Allstate in the amount of $20,932.48. The trial court ordered her to pay the restitution in monthly installments of $50. Henderson now appeals.

DISCUSSION AND DECISION

I. Sentencing

Henderson first argues that the trial court erred in imposing her sentence. Specifically, she contends that the trial court considered an improper aggravator, failed to consider a mitigator, improperly weighed the aggravating and mitigating circumstances, and imposed a sentence that is inappropriate in light of the nature of the offense and her character.

As we consider these arguments, we observe that sentencing determinations are within the sound discretion of the trial court, and we will only reverse for an abuse of discretion. Krumm v. State, 793 N.E.2d 1170, 1186 (Ind.Ct.App.2003). An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

In a sentencing statement, a trial court must identify all significant aggravating and mitigating factors, explain why such factors were found, and balance the factors in arriving at the sentence. Bryant v. State, 841 N.E.2d 1154, 1156 (Ind.2006). A trial court is not obligated to weigh a mitigating factor as heavily as the defendant requests. Smallwood v. State, 773 N.E.2d 259, 263 (Ind.2002).

Henderson first contends that the trial court erred in considering her prior criminal history to be an aggravating factor, inasmuch as her single prior conviction occurred nearly fifteen years prior to the time of the sentencing hearing herein. Additionally, it was a nonviolent conviction for drug possession in Ohio and is equivalent to an Indiana class C misdemeanor. We have noted in the past that when a defendant "seeks to diminish the relevance of a criminal record by emphasizing its remoteness or nonviolent character, neither factor precludes the trial court from using such prior convictions as aggravating circumstances." Carlson v. State, 716 N.E.2d 469, 473 (Ind.Ct.App.1999). While we agree that Henderson's criminal history should not have been weighed heavily, nothing in the record leads us to conclude that the trial court erred in considering this aggravating factor. Moreover, that the trial court imposed the presumptive sentence and suspended two years of that sentence establishes that it did not give significant weight to this aggravator.

Henderson also argues that the trial court erred in failing to consider her poor health to be a mitigating circumstance. Specifically, the record reveals that she receives treatment for depression, anxiety, diabetes, acid reflux, bladder prolapse, hyperthyroidism, hypertension, and arthritis in her left shoulder. The trial court took note of Henderson's "extensive illnesses," Appellant's App. p. 60, but did not consider her illnesses to be a mitigating circumstance.

When a defendant offers evidence of mitigators, the trial court has the discretion to determine whether the factors are mitigating, and it is not required to explain why it does not find the proffered factors to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind.Ct.App. 2003). 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 significant and clearly supported by the record. Gray v. State, 790 N.E.2d 174, 177 (Ind.Ct. App.2003).

The trial court clearly recognized Henderson's illnesses; consequently, it did not simply overlook her poor health, as Henderson suggests. Moreover, there is no evidence in the record establishing that Henderson's multiple health problems should be a factor in determining an appropriate period of incarceration. Henderson takes medication for most of these conditions, and she did not present any evidence demonstrating that her medical conditions would be untreatable during incarceration or would render incarceration a hardship. Accordingly, we conclude that the trial court did not err in declining to consider Henderson's poor health to be a mitigating circumstance.

Henderson next argues that the trial court erred in balancing the aggravator and mitigator. In particular, she contends that the sole aggravator, her prior criminal history, should not balance equally with the mitigating circumstance. As to the mitigator, we note that because the State agreed to dismiss four class B felonies and one class D felony in exchange for Henderson's guilty plea to one class C felony, she reaped a substantial benefit from her guilty plea. Under these circumstances, the trial court was not required to give significant mitigating weight to Henderson's plea of guilty. Wells v. State, 836 N.E.2d 475, 479 (Ind.Ct.App.2005), trans. denied. The trial court imposed the presumptive sentence—four years of incarceration—and suspended two years of that sentence to probation. It is apparent, therefore, that the trial court did not afford significant aggravating weight to Henderson's criminal history. Thus, we conclude that the trial court properly weighed the aggravator and mitigator.

Henderson's final argument with respect to her sentence is that it is inappropriate in light of the nature of the offense and her character. Ind. Appellate Rule 7(B). As to the nature of the offense, Henderson and her nephew poured an accelerant on the floor of the trailer that she had sold to Johnson on contract and then ignited it, causing a fire that caused a passing police officer to risk his life to ensure that no one was inside. Henderson's fraudulent attempt to obtain insurance money risked the lives of everyone in proximity to the burning trailer.

As to Henderson's character, we acknowledge that her life has not been easy. Her husband died in 1999 and her thirty-two-year-old son died three years later, in 2002. Following those events, Henderson succumbed to anxiety and depression, and since that time, her sole income has been the survivor's benefit from her husband's company, which totals $1,161 per month. Moreover, she struggles...