Lozier v. State, 031219 INCA, 18A-CR-1145

Docket Nº:18A-CR-1145
Opinion Judge:Altice, Judge.
Party Name:Christopher Lozier, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney:ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana Attorney for Appellant R. Patrick Magrath Madison, Indiana Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
Judge Panel:Najam, J. and Pyle, J., concur.
Case Date:March 12, 2019
Court:Court of Appeals of Indiana
 
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Christopher Lozier, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 18A-CR-1145

Court of Appeals of Indiana

March 12, 2019

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.

Appeal from the Dearborn Circuit Court The Honorable James D, Humphrey, Judge The Honorable Eugene Stewart, Senior Judge Trial Court Cause No. 15C01-9303-CF-9

ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana

Attorney for Appellant R. Patrick Magrath Madison, Indiana Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Altice, Judge.

Case Summary

[¶1] In October 1992, Christopher Lozier, then age eighteen, and two male friends were involved in a robbery-turned-murder of a woman as she was making a night deposit at the bank after work. Lozier pled guilty to felony murder and Class B felony conspiracy to commit robbery and was sentenced to an aggregate seventy-year term of imprisonment. After being granted permission to pursue successive post-conviction relief in 2017, Lozier filed a petition for post-conviction relief, which the post-conviction court granted in May 2018, allowing Lozier to file this belated direct appeal of his sentence. He raises two issues that we restate as: I. Whether Blakely v Washington, 542 U.S. 296 (2004) applies retroactively to Lozier's case and renders his sentence unconstitutional; and

II. Whether Lozier's sentence is inappropriate in light of the nature of the offense and the character of the offender.

[¶2] We affirm.

Facts & Procedural History

[¶3] In October 1992, Lozier and two friends, Daniel Widener, age seventeen, and Shawn Davis, age eighteen, planned a robbery. They all agreed to rob a night manager of the Ponderosa restaurant, where Davis had worked before recently getting fired. They planned to use Davis's 22-caliber revolver to scare the Ponderosa employee. Over the next few days, the three of them got together at least twice to finalize their plans. On the night of October 25, 1992, Davis gave the revolver to Lozier, and Lozier and Widener walked from a Wal-Mart parking lot to an adjacent Star Bank.[1] Lozier placed a concrete block in the driveway of the bank so that anyone making a night deposit would have to exit his or her vehicle. Lozier and Widener, while wearing masks, crouched between parked cars and waited outside the bank for Vanessa Wells, Ponderosa's night manager, to arrive and make the restaurant's deposit. According to Lozier, he placed the revolver on the ground between him and Widener.

[¶4] When Wells arrived at the bank to make the deposit and got out of her car, Lozier and Widener appeared in masks and approached her. Wells screamed and ran back to her car and got inside it. Widener fired a shot at Wells through a cracked passenger-side window. Widener fired a second shot that penetrated Wells's right hand and lodged in her neck, killing her. One or both of them moved her body to the floor of the back seat, where she was shot two more times.2 Lozier drove the car to an area near a landfill, where they hid the car in some trees and disposed of coats, gloves, at least one mask, and the money bag into pools of water at the landfill. Lozier tossed the handgun into the Ohio River. Widener and Lozier returned to Widener's home and went to sleep. The proceeds from the robbery were $275.00, part of which Lozier and Widener spent the next day at the mall on a movie and food. Wells's husband reported her missing, and, several days later, hunters discovered Wells's body and her car in the landfill area.

[¶5] The men continued with their daily lives until they were questioned by police in March 1993. Police had received a report from an inmate and a Crime Stoppers tip that Lozier and Widener were involved in the robbery and murder of Wells.

[¶6] In September 1993, while represented by appointed attorney Gary Sorge, Lozier pled guilty to felony murder and conspiracy to commit robbery, for which he would receive a sixty-year sentence for the felony murder conviction and a concurrent twenty-year sentence for the conspiracy conviction. In October 1993, attorney Steven Bush entered an appearance for Lozier, and Lozier requested and was granted permission to withdraw the plea. Lozier entered into a new plea agreement on October 19, 1993, again pleading guilty to felony murder and conspiracy to commit robbery, with sentencing left to the court's discretion. Meanwhile Widener pled guilty on October 12, 1993 to felony murder and Class B felony conspiracy to commit robbery, and Davis pled guilty on October 9, 1993 to Class B felony robbery and Class B felony conspiracy to commit robbery. Both Widener's and Davis's plea agreements left sentencing to the trial court's discretion.

[¶7] After receiving evidence over the course of several days in December 1993, the trial court sentenced Lozier, Davis, and Widener on January 7, 1994, later reduced to a written sentencing order on January 11. The court sentenced Lozier to forty years on the felony murder conviction, enhanced by twenty years, and a consecutive ten-years on the conspiracy conviction, for an aggregate seventy-year sentence. Lozier did not appeal. Davis received twenty years on the Class B felony robbery conviction and twenty years on the Class B felony conspiracy to commit robbery conviction, to be served consecutively.

[¶8] Widener, like Lozier, received a seventy-year sentence. However, Widener filed a direct appeal, arguing that his sentence was manifestly unreasonable. Our Supreme Court determined that valid aggravators existed but that, although the trial court "did take into account the youthful ages of all three defendants," the trial court "failed to discuss additional mitigating circumstances that we find significant." Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (J. Dickson, dissenting). The Supreme Court identified the following four mitigators: (1) Widener, age seventeen, lacked a significant history of criminal involvement and "had not been charged or convicted of any criminal acts" prior to the instant charges; (2) Widener pled guilty and saved judicial resources; (3) "even though evidence of remorse was rejected by the trial court," Widener's act of pleading guilty "does show that he was willing to accept responsibility for his actions"; and (4) although Widener "actively engaged in the murder and robbery," "the plan was initiated by Lozier and formulated primarily by Davis[.]" Id. A majority of the Supreme Court determined that the mitigating factors rendered the seventy-year sentence manifestly unreasonable and thus reduced his sentence to fifty years for the felony murder conviction to be served concurrent with his ten-year sentence on the conspiracy conviction.

[¶9] In 1994 and 1995, Lozier, pro se, filed multiple praecipes for appeal or post-conviction relief, seeking permission to pursue direct appeal or other relief to have his sentence reviewed and revised, but was unsuccessful in those attempts. In 1996, Lozier retained attorney Matt Zerbe, and, pursuant to Ind. Post-Conviction Rule 2(1), Lozier filed on May 8, 1996, a petition for a belated appeal, which, after a hearing, was denied on July 27, 1998. Lozier did not appeal that decision. On March 14, 2006, Lozier filed, pro se, a second P-C.R. 2(1) petition, which was denied on July 25, 2006. Lozier did not appeal that denial.

[¶10] In 2009, Lozier retained attorney Ed Massey, and on November 3, 2009, Lozier filed a petition for post-conviction relief under P-C.R. 1 alleging sentencing errors, but did not raise issues of ineffective assistance of counsel. Following a hearing in April 2010, the post-conviction court...

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