Sanjari v. State
| Decision Date | 15 January 2013 |
| Docket Number | No. 20A03–1206–CR–273.,20A03–1206–CR–273. |
| Citation | 981 N.E.2d 578 |
| Parties | Amir H. SANJARI, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorney for Appellant.
Ian McLean, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.
Amir Sanjari had two children with Alison Gratzol and, when the couple divorced, Sanjari was ordered to pay child support. Sanjari failed to do this on a regular basis, and his arrearage eventually came to be almost $57,000. Sanjari was tried and convicted of two counts of Class C felony nonsupport and sentenced to two consecutive five-year sentences. On appeal, the Indiana Supreme Court reduced one of Sanjari's convictions to a Class D felony and remanded for resentencing. The trial court sentenced Sanjari to eight years of incarceration for the Class C felony and two for the Class D felony, to be served consecutively. Sanjari again appeals.
Sanjari contends that his sentence violates prohibitions against double jeopardy, violates prohibitions against vindictive sentencing, and is inappropriately harsh. We conclude that Sanjari's new sentence does not constitute double punishment. We also conclude that Sanjari has failed to show actual vindictiveness by the trial court and that his aggregate sentence does not entitle him a presumption of vindictiveness because it is no longer than the aggregate sentence originally imposed. Finally, in light of the severity of Sanjari's offenses and his appalling character, we conclude that his ten-year executed sentence in not inappropriate. We affirm.
The Indiana Supreme Court summarized the facts underlying this appeal as follows:
[Sanjari] and [Alison Gratzol] married in 1982 and had two children. Their marriage was dissolved in Elkhart County, Indiana, in 2000, and [Sanjari] was eventually ordered to pay $239 per week as child support to apply to both children, plus additional amounts for educational expenses and to reduce an accumulated support arrearage. [Sanjari] failed to regularly pay such “in gross” support payments and eventually ceased making the child support payments. [Sanjari] was initially charged with two counts of class C felony nonsupport of a dependent child, one count for each child, because the total amount of unpaid support exceeded $15,000. The State later added two additional counts of class D felony nonsupport, one for each child. When initially charged, [Sanjari] was more than $17,000 behind in support, but by the time his trial commenced the arrearage exceeded $56,000. A jury found [Sanjari] guilty of all four counts: a class C felony and a class D felony for each child. The trial court entered judgment only as to the two class C felonies, per Indiana Code Section 35–38–1–6, which provides that, notwithstanding guilty verdicts on separate counts charging both an offense and an included offense, a judgment and sentence “may not be entered against the defendant for the included offense.” Ind.Code § 35–38–1–6.
Sanjari v. State, 961 N.E.2d 1005, 1006 (Ind.2012) (“Sanjari II ”).
Following Sanjari's convictions, the trial court imposed two consecutive five-year sentences. See Sanjari v. State, 942 N.E.2d 134, 139 (Ind.Ct.App.2011)trans. denied, trans. granted, and opinion vacated (“Sanjari I ”). On appeal, inter alia, we vacated one of Sanjari's Class C felony nonsupport convictions on double jeopardy grounds and affirmed the trial court in all other respects. See Sanjari II at 1006. The Indiana Supreme Court granted transfer and held that “Indiana Code Section 35–46–1–5 permits a separate class D felony conviction for nonsupport of each dependent child, but only one such offense may be enhanced to a class C felony where the unpaid support for one or more of such children is $15,000 or more.” Id. The Sanjari II Court summarily affirmed our disposition in all other respects but remanded with instructions to enter judgments of conviction for one count of Class C felony nonsupport and one count of Class D felony nonsupport and for resentencing. Id. at 1009.
On May 16, 2012, the trial court held a sentencing hearing, following which it sentenced Sanjari to eight years of incarceration for Class C felony nonsupport and two years for Class D felony nonsupport. No additional evidence was presented by either party. The trial court found, as aggravating circumstances, that the harm done was far more than necessary to satisfy the elements of the crimes, Sanjari's refusal to maintain gainful employment, the high likelihood that Sanjari would continue to refuse to support his children, the substantial time and effort spent by Gratzol in attempting to collect child support, Sanjari's harassment of Gratzol, the high likelihood that Sanjari would abscond if placed in a community-based program, and his veiled threat of violence directed at Gratzol. The trial court found Sanjari's lack of a prior criminal record to be mitigating. The trial court found that the aggravating circumstances “overwhelmed” the lone mitigating circumstance. Appellant's App. p. 59.
As previously mentioned, the trial court originally imposed two consecutive five-year sentences. Sanjari notes that one of those five-year sentences would now be discharged. Sanjari seems to argue that because the original sentence has allegedly been discharged, resentencing him now on the same charge would represent a double punishment. The original sentence, however, has not been discharged—it has been vacated. Sanjari cites to no authority for the proposition that a new sentence may not be ordered when the original sentence has been “discharged,” and we are aware of none. Sanjari is not being punished twice for the same offense because the original sentence has simply been superseded by the new one. Sanjari's sentence does not violate prohibitions against double jeopardy.
“While sentencing discretion permits consideration of a wide range of information relevant to the assessment of punishment, ... it must not be exercised with the purpose of punishing a successful appeal.” Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (). “ ‘Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.’ ” Smith, 490 U.S. at 798, 109 S.Ct. 2201 (quoting Pearce, 395 U.S. at 725, 89 S.Ct. 2072). Whenever a judge imposes a more severe sentence upon a defendant, the reasons for doing so must be clear, or the presumption arises that there has been a vindictive purpose. See id. “Once this presumption blossoms, the prosecution must proffer evidence to overcome it; elsewise, vindictiveness is deemed established, and the due process clause requires invalidation of the challenged action.” U.S. v. Pimienta–Redondo, 874 F.2d 9, 13 (1st Cir.1989).
Sanjari contends that the record establishes that the trial court vindictively sentenced him. Although Sanjari acknowledges that “[t]he trial court's statements at resentencing do not show an indication of retaliatory motive[,]” Appellant's Br. p. 19, he argues that there is nonetheless other evidence that establishes vindictiveness. Sanjari, however, points to only the numerous filings he made, including a habeas corpus petition and numerous motions for change of venue, and material from his website, some of which was highly critical of the trial court and the prosecutors and attorneys of Elkhart County. There is simply no evidence, however, that the trial court took any of Sanjari's criticisms into account at resentencing. Were we to accept Sanjari's argument, it would open the door for future defendants to establish actual vindictiveness claims simply by being vexatious, a result we obviously cannot endorse.
Sanjari also argues that the imposition of an eight-year sentence for his Class C felony conviction on remand gives rise to an unrebutted presumption of vindictiveness because the original sentence for that conviction was five years. The State counters that no such presumption arises because Sanjari's ten-year aggregate sentence is the same as originally imposed. Today, we join with that vast majority of courts who have addressed the question and have concluded that it is the aggregate sentence that is the key in such cases. 1 Pursuant to this approach, Sanjari's ten-year aggregate sentence on remand does not give rise to a presumption of vindictive sentencing.
“[U]nder a due process analysis, where the aggregate period of incarceration on resentencing is no greater than the original aggregate sentence, there is no presumption of vindictiveness.” People v. Woellhaf, 199 P.3d 27, 31 (Colo.Ct.App.2007) (citing U.S. v. Evans, 314 F.3d 329 at 333–34 (8th Cir.2002); Pimienta–Redondo, 874 F.2d at 13–14;State v. Larson, 56 Wash.App. 323, 783 P.2d 1093, 1095 (1989)). The core rationale for this rule, one that we accept, is the recognition that the sentences in a multi-conviction proceeding are interdependent:
When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an “unbundled” sentencing package. See, e.g., United States v. Thomas, 788 F.2d 1250, 1260 (7th Cir.), cert. denied,479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 121 (1986)....
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