MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Jan 30 2015, 10:59 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark A. Delgado                                           Gregory F. Zoeller
Monticello, Indiana                                       Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph Pohl,                                             January 30, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         38A02-1404-CR-223
        v.                                               Appeal from the Jay Circuit Court


State of Indiana,
Appellee-Plaintiff




Pyle, Judge




Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015      Page 1 of 10
                                         Statement of the Case
[1]   Joseph Pohl (“Pohl”) appeals his sentence, after a jury trial, for his two

      convictions of Class B felony burglary1 and two convictions of Class D felony

      theft.2 On appeal, Pohl claims that the trial court abused its discretion by

      sentencing him to consecutive sentences that exceed what is allowed for as a

      single episode of criminal conduct. In addition, Pohl asserts that the trial

      court’s sentencing statement is inadequate and that it ignored his youthful age

      as a mitigating circumstance. He also argues that his sentence is inappropriate.

      Concluding that the trial court did not abuse its discretion in sentencing Pohl,

      and that Pohl waived his argument under Indiana Appellate Rule 7(B), we

      affirm his sentence.


[2]   We affirm.


                                                       Issues
[3]   1. Whether the trial court abused its discretion in sentencing Pohl.


[4]   2. Whether Pohl’s sentence is inappropriate under Indiana Appellate Rule 7(B).




      1
       IND. CODE § 35-43-2-1. We note that, effective July 1, 2014, a new version of this burglary statute was
      enacted and that Class B felony burglary is now a Level 4 felony. Because Pohl committed his crimes in
      2013, we will apply the statute in effect at that time.


      2
        IND. CODE § 35-43-4-2. Again, effective July 1, 2014, a new version of this theft statute was enacted, and
      Class D felony theft is now a Class A misdemeanor. We will apply the statute in effect at the time of Pohl’s
      crimes.

      Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015           Page 2 of 10
                                                     Facts
[5]   Pohl lived in Dunkirk next door to Barbara Irelan (“Irelan”). Irelan

      occasionally paid Pohl to cut her grass, trim her hedges, and shovel her snow.

      On June 6, 2013, Irelan went to Indianapolis for an Elk’s convention. Irelan

      locked the doors to her home when she left, but she left a window open on the

      front of her house.


[6]   On the day that Irelan left for Indianapolis, Pohl and his girlfriend, Kassandra

      Workman (“Workman”), were sitting on his back porch. Pohl decided to try

      and break into Irelan’s car, but it was locked. Pohl then remembered that Irelan

      was out of town, and he told Workman that he was going to try to break into

      Irelan’s house. Pohl did break into the house and stole a bottle of vodka.


[7]   The next evening, Workman was at a friend’s house, and Pohl came over with

      the bottle of vodka. He said that he had taken the vodka from Irelan’s house,

      which he had entered through the front window. After drinking the vodka,

      Pohl and Workman decided to break into Irelan’s house “[j]ust to look around,

      [and] see what [they] could get.” (Tr. 61). They opened Irelan’s front door,

      went inside, and took coins and a handgun.


[8]   Pohl and Workman took the items to Alex Blankenship’s (“Blankenship”)

      house. They asked Blankenship if he could help them sell the gun.

      Blankenship took the gun and sold it to his step-father, Larry Kelly, for $50.

      Pohl and Workman then took the coins to a machine at Wal-Mart to exchange

      for cash. They used the cash to buy narcotics.

      Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015   Page 3 of 10
[9]    When Irelan returned to her home, she found the front door ajar. The window

       screen had “a ripple in it showing that [] something had happened to it” (Tr. 23-

       24). She noted that a bottle of vodka, loose and rolled coins, a handgun, tie

       tacks, and jewelry were missing.


[10]   On August 2, 2013, the State charged Pohl with two counts of burglary and two

       counts of theft. A jury trial was held on February 3, 2014, and the jury found

       Pohl guilty as charged. At the sentencing hearing, the trial court stated the

       following reasons for imposing its sentence:

               Alright [sic] the court is required to make a reasonably detailed
               sentencing statement to explain to you, those persons present and
               perhaps a reviewing court . . . the basis for the sentence that I’m about
               to impose.


                                                     *****


               As far as aggravating circumstances, the court finds as follows, you
               have a healthy history of criminal activity. You have a juvenile
               adjudication. You have recently violated conditions of probation.
               You have recently violated conditions of parole. While awaiting trial
               in this matter, you violated jail rules resulting in good time or loss of
               good time credit of thirty days. Furthermore, the victim of your
               offense was over 65 years of age. Each of those are aggravating
               circumstances. As far as mitigation, the court finds that your
               specialized [safety] issues require some consideration. The quote,
               quite honestly you-I am not going to find that imprisonment is going
               to result in undue hardship to you. You have been to one prison and
               somehow in your mind you are now a target for everybody in the
               Department of Correction. I don’t buy it. I think it’s another
               unsuccessful attempt at manipulating your sentence. The aggravating
               circumstances in your particular case far outweigh the mitigating
               circumstances[.]


       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015   Page 4 of 10
[11]   (Sent. Tr. 24). The trial court sentenced Pohl to fifteen (15) years for each

       burglary conviction and thirty (30) months on each theft conviction. The court

       ordered Pohl to serve the burglary convictions consecutive to one another, but

       the theft convictions were to be served concurrently with each other and the

       burglary convictions. The total sentence imposed was an executed term of

       thirty (30) years in the Department of Correction. Pohl now appeals.


                                                   Decision
[12]   On appeal, Pohl argues that the trial court abused its discretion in three ways.

       First, because the crimes were a single episode of criminal conduct, he claims

       that the consecutive sentence imposed by the trial court exceeded the amount

       allowed by statute. In addition, he claims that the trial court’s sentencing

       statement is inadequate in that “it merely states aggravating factors and a

       mitigating fact followed by conjecture.” (Pohl’s Br. 6). Finally, he asserts that

       the trial court abused its discretion by failing to consider his youthful age as a

       mitigating circumstance. Furthermore, Pohl argues that his sentence is

       inappropriate. We address each of his claims in turn.


       1. Abuse of Discretion

           a. Single Episode of Criminal Conduct

[13]   We first address Pohl’s claim regarding his consecutive sentences. Generally, a

       trial court cannot impose consecutive sentences without express statutory

       authority. Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014). A sentence

       that is contrary to or in violation of a statute is illegal because it is without


       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015   Page 5 of 10
       statutory authorization. Id. We review a claim of sentencing error for an abuse

       of discretion, and reversal is only warranted when there has been a manifest

       abuse of discretion. Id.


[14]   When a trial court orders a defendant to serve consecutive sentences for

       multiple felony convictions, the trial court must comply with INDIANA CODE §

       35-50-1-2(c), which provides the following:

               . . . , except for crimes of violence, the total of the consecutive terms of
               imprisonment, . . . to which the defendant is sentenced for felony
               convictions arising out of an episode of criminal conduct shall not
               exceed the advisory sentence for a felony which is one (1) class higher
               than the most serious of the felonies for which the person has been
               convicted.


[15]   (emphasis added). The State argues that pursuant to IND. CODE § 35-50-1-

       2(a), Pohl’s burglary convictions are crimes of violence. Burglary as a class B

       felony is among the listed offenses considered a crime of violence. IND.

       CODE § 35-50-1-2(a)(13). Thus, even if the burglaries were a single episode of

       criminal conduct, the limit on the term of imprisonment, by statute, would not

       apply. Therefore, the trial court did not abuse its discretion in sentencing Pohl

       to consecutive terms.

           b. Inadequate Sentencing Statement & Mitigating Circumstances

[16]   Pohl argues that the trial court further abused its discretion by making an

       inadequate sentencing statement and overlooking his youthful age as a

       mitigating circumstance.



       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015   Page 6 of 10
[17]   Notwithstanding the authority afforded to appellate courts by Indiana Appellate

       Rule 7(B), “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), clarified 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.” K.S. v.

       State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637,

       640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a

       defendant by: (1) failing to enter a sentencing statement; (2) entering a

       sentencing statement that explains reasons for imposing the sentence but the

       record does not support the reasons; (3) omitting reasons that are clearly

       supported by the record and advanced for consideration; or (4) imposing a

       sentence for reasons that are improper as a matter of law. Anglemyer, 868

       N.E.2d at 490.


[18]   In this case, Pohl essentially argues that the trial court failed to properly

       “weigh” the aggravating and mitigating circumstances. However, “[b]ecause

       the trial court no longer has any obligation to ‘weigh’ aggravating and

       mitigating factors against each other when imposing a sentence, unlike the pre-

       Blakely statutory regime, a trial court cannot now be said to have abused its

       discretion in failing to ‘properly weigh’ such factors.” Id. at 491 (quoting

       Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000)). “Where a trial court imposes

       sentence for a felony offense it is required to issue a sentencing statement that


       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015   Page 7 of 10
       includes a reasonably detailed recitation of the trial court’s reasons for the

       sentence imposed.” Anglemyer, 868 N.E.2d at 481. In order for an appellate

       court to perform a meaningful review of a trial court’s sentencing statement, we

       must be informed of the trial court’s reason for imposing the sentence, and this

       necessarily requires a statement of fact, in some detail which, are peculiar to the

       particular defendant and the crime, as opposed to general impressions or

       conclusions. Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2007).


[19]   Here, the trial court outlined the aggravating and mitigating circumstances

       particular to Pohl and his crimes. The trial court took note of his significant

       criminal history and the fact that he had victimized an elderly neighbor. In

       addition, the trial court took into consideration Pohl’s alleged safety concerns if

       he returned to the Department of Correction. As a result, the trial court did not

       abuse its discretion because the sentencing statement and the record before us

       are sufficient to conduct a meaningful review.


[20]   Next, Pohl argues that the trial court erroneously failed to consider his young

       age as a mitigating factor. However, Pohl did not raise his age as a mitigator

       during the sentencing hearing. A trial court does not abuse its discretion in

       failing to consider a mitigating factor that was not raised at sentencing.

       Anglemyer, 868 N.E. 2d at 492 (citing Georgopulos v. State, 735 N.E2d 1138, 1145

       (Ind. 2000)).3 “[I]f the defendant fails to advance a mitigating circumstance at




       3
        On rehearing, the Supreme Court clarified that “a defendant who pleads guilty does not forfeit the
       opportunity to claim on appeal that the trial court should have considered his guilty plea a mitigating

       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015             Page 8 of 10
       sentencing, this court will presume that the factor is not significant, and the

       defendant is precluded from advancing it as a mitigating circumstance for the

       first time on appeal.” Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App.

       2006). Accordingly, he is precluded from doing so here.


       2. Inappropriate Sentence

[21]   Finally, Pohl argues that his sentence is inappropriate. Rule 7(B) of the Indiana

       Rules of Appellate Procedure provides that “[t]he 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.” However, Pohl makes no argument

       showing how the trial court’s sentence is inappropriate based upon this

       standard. In addition, our supreme court held in Anglemyer that abuse of

       discretion and inappropriate sentence claims are to be analyzed separately.

       Anglemyer, 868 N.E.2d at 491; see also King v. State, 894 N.E.2d 265, 267 (Ind.

       Ct. App. 2008) (observing that “an inappropriate sentence analysis does not

       involve an argument that the trial court abused its discretion in sentencing the

       defendant”). Pohl cited Anglemyer in support of his inappropriate sentence

       claim. Yet, he still failed to separately argue his abuse of discretion and 7(B)




       circumstance even though the defendant failed to assert this claim at sentencing.” Anglemyer, 875 N.E.2d at
       219.

       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015          Page 9 of 10
       claims.4 Accordingly, Pohl’s argument that his sentence is inappropriate is

       waived. See Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008); Ind.

       Appellate Rule 46(A)(8)(a); see also Smith v. State, 822 N.E.2d 193, 202-203 (Ind.

       Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where

       the party fails to develop a cogent argument or provide adequate citation to

       authority and portions of the record.”), trans. denied.


[22]   Affirmed.


[23]   Najam, J., and Bailey, J., concur.




       4
        Pohl also cited our supreme court’s decision in Reid v. State, 876 N.E.2d 1114, where the Court, pursuant to
       Indiana Appellate Rule 7(B), revised a maximum sentence on a conspiracy to commit murder conviction.
       Nevertheless, Pohl still made no argument regarding the nature of this offense and his character.



       Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015          Page 10 of 10
