 Pursuant to Ind.Appellate Rule 65(D),


                                                                   FILED
 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,                      Mar 08 2012, 9:23 am
 collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

MARK A. BATES                                         GREGORY F. ZOELLER
Crown Point, Indiana                                  Attorney General of Indiana

                                                      NICOLE M. SCHUSTER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFERY HAUGH,                                        )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 45A03-1106-CR-276
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                            The Honorable Salvador Vasquez, Judge
                                Cause No. 45G01-0402-FD-15


                                            March 8, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Jeffery Haugh appeals his conviction for Class D felony failure to notify

authorities and moving a body from the scene. Haugh contends that the trial court erred

by denying the motion to withdraw his guilty plea and that his sentence is inappropriate

in light of the nature of the offense and his character. Finding that the trial court did not

err in denying the motion to withdraw Haugh’s guilty plea and that Haugh has failed to

persuade us that his sentence is inappropriate in light of the nature of the offense and his

character, we affirm.

                              Facts and Procedural History

       In June 2001, Haugh was living at the home of Ronald Hasse. On June 17, 2001,

Michael Denvit was over at the house, and Hasse and Denvit did a lot of drugs. When

Haugh awoke the next morning, he saw Denvit asleep on the couch. Hasse checked

Denvit’s pulse and realized that Denvit was dead.

       Haugh wanted to call the police, but Hasse told Haugh that he could not leave,

threatening to hurt him, his mother, and his dog if he did. Haugh knew that Hasse had a

violent nature, so he believed the threats. Tr. p. 13. Hasse and Haugh then put Denvit’s

body into a car and drove it to Hasse’s family farm in Lake County. Hasse asked for

Haugh’s help in burying the body, but Haugh refused, saying “this is too much, you’re on

your own.” Id. at 14.

       A few days later, Haugh told Hasse that he wanted to collect his things from

Hasse’s house. Hasse refused him permission but eventually allowed Haugh’s mother to




                                             2
collect Haugh’s belongings and his dog from Hasse’s house. Haugh never saw Hasse

again.

         Haugh later moved to Tennessee, where he was contacted by law enforcement two

years after moving Denvit’s body. Haugh drove back to Indiana and gave the police a

statement. On February 10, 2004, the State charged Haugh with Class D felony failure to

notify authorities and moving a body from the scene. Haugh was served with a warrant

six years later on October 6, 2010. On April 6, 2011, Haugh pled guilty without a written

plea agreement.

         At the guilty plea hearing, the trial court advised Haugh of the rights that he was

giving up by pleading guilty. The trial court also expressly told Haugh that he was giving

up the viable defense of duress should he decide to plead guilty. Haugh indicated that he

was aware of the rights and defenses he was giving up and that he still wanted to plead

guilty. The trial court accepted the plea, and Haugh was remanded into custody.

         On April 8, 2011, Haugh filed a Motion for Immediate Release of Defendant and

for Withdrawal or Amendment of Guilty Plea.            Haugh’s counsel argued that after

researching the matter, he had just become aware that the statute for failure to notify

authorities and moving a body from the scene was amended after Denvit’s death and

Haugh should receive the benefit of that amendment under the doctrine of amelioration

and the rule of lenity. The trial court determined that neither the doctrine of amelioration

nor the rule of lenity applied and that Haugh was not able to withdraw his guilty plea,

which was freely given and based upon a sufficient factual basis.




                                              3
       Haugh appeared at his initial sentencing hearing under the influence of alcohol, so

the hearing was reset. At the second sentencing hearing, Haugh testified that he regretted

his actions, regretted not informing the police, and was remorseful for his actions. Id. at

84, 88. He also said that while he currently lived in Tennessee, he still feared that Hasse

would find him and harm him. Id. at 83-84, 94. Haugh’s mother also testified, saying

that her son was very sorry for his part in concealing Denvit’s death. Id. at 69.

       In reaching its sentencing decision, the trial court found as aggravating factors the

number of times Haugh had been arrested, a charge was pending against Haugh at the

time of the crime, and the fact that Haugh arrived at the first sentencing hearing under the

influence of alcohol. Id. at 120-123. As mitigators, the trial court noted that Haugh had

no felony convictions, he pled guilty in this case, and the circumstances of the crime were

unlikely to recur. Id. Finding that the aggravating factors outweighed the mitigating

factors, the trial court sentenced Haugh to one year at the Department of Correction and

one year at Lake County Community Corrections, for an aggregate sentence of two years.

       Haugh now appeals.

                                 Discussion and Decision

       Haugh makes two arguments on appeal: (1) whether the trial court erred in

denying the motion to withdraw his guilty plea and (2) whether the two-year sentence

imposed is inappropriate in light of the nature of the offense and his character.

                           I. Motion to Withdraw Guilty Plea

       Whether a trial court should grant a motion to withdraw a guilty plea is governed

by Indiana Code § 35-35-1-4(b), which provides:


                                             4
       After entry of a plea of guilty . . . but before imposition of sentence, the
       court may allow the defendant by motion to withdraw his plea . . . for any
       fair and just reason unless the state has been substantially prejudiced by
       reliance upon the defendant’s plea . . . . The ruling of the court on the
       motion shall be reviewable on appeal only for an abuse of discretion.
       However, the court shall allow the defendant to withdraw his plea . . .
       whenever the defendant proves that withdrawal of the plea is necessary to
       correct a manifest injustice.

On appeal, a trial court’s ruling on a motion to withdraw a guilty plea carries with it a

presumption of validity, and we will only review it for an abuse of discretion.

Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998), reh’g denied, trans. denied.

       Haugh contends that there are three grounds on which the trial court abused its

discretion in not granting his motion to withdraw his guilty plea: the doctrine of

amelioration, ineffective assistance of trial counsel, and the defense of duress.

                                A. Doctrine of Amelioration

       It is well established that the criminal law that controls is that which is in effect at

the time the crime is committed. Smith v. State, 675 N.E.2d 693, 695 (Ind. 1996).

However, the doctrine of amelioration provides that “a defendant who is sentenced after

the effective date of a statute providing for more lenient sentencing is entitled to be

sentenced pursuant to that statute rather than the sentencing statute in effect at the time of

the commission or conviction of the crime.” Richards v. State, 681 N.E.2d 208, 213 (Ind.

1997) (quoting Lunsford v. State, 640 N.E.2d 59, 60 (Ind. Ct. App. 1994)).

       The doctrine of amelioration was first adopted by this Court in Lewandowski v.

State, 389 N.E.2d 706 (Ind. Ct. App. 1979). The purpose of the doctrine is to give an

individual the benefit of a more lenient sentence if, before he is sentenced, the legislature

enacts an ameliorative amendment and makes an express statement that the former

                                              5
penalty for a proscribed act was too severe. Davis v. State, 395 N.E.2d 232, 234 (Ind. Ct.

App. 1979). This is so because our penal code is based on principles of reformation and

not vindictive justice. Id.

       When Haugh was charged with the offense in 2004, the applicable statute, Indiana

Code section 36-2-14-17, read:

       (a) A person who knowingly or intentionally fails to immediately notify the
       coroner or a law enforcement agency of the discovery of the body of a
       person who had died:
              (1) from violence; or
              (2) in an apparently suspicious, unusual, or unnatural manner
       commits a Class B infraction.

       (b) A person who without the permission of the coroner or a law
       enforcement officer, knowingly or intentionally moves or transports from
       the scene of death the body of a person who has died:
              (1) from violence; or
              (2) in an apparently suspicious, unusual, or unnatural manner
       commits a Class D felony.

Ind. Code § 36-2-14-17 (2004).

       In 2007, the statute was amended to read:

       (a) A person who knowingly or intentionally fails to immediately notify the
       coroner or a law enforcement agency of the discovery of the body of a
       person who:
              (1) has died from violence;
              (2) has died in an apparently suspicious, unusual, or unnatural
              manner; or
              (3) has died at less than three (3) years of age;
       commits a Class B infraction. However, the failure to immediately notify
       under this subsection is a Class A misdemeanor if the person fails to
       immediately notify with the intent to hinder a criminal investigation.

       (b) A person who with the intent to hinder a criminal investigation and
       without the permission of the coroner or a law enforcement officer,
       knowingly or intentionally alters the scene of death of a person who has
       died:
             (1) from violence; or

                                            6
           (2) in an apparently suspicious, unusual, or unnatural manner
      commits a Class D felony.

Ind. Code Ann. § 36-2-14-17 (West 2011).

      In this case, the amended portion of Section 36-2-14-17(b) at issue is the Class D

felony – the legislature added the element “with the intent to hinder a criminal

investigation” and changed “knowingly or intentionally moves or transports from the

scene of death the body” to “knowingly or intentionally alters the scene of death.” In

order to determine if this was meant to be an ameliorative statute, we must try to

ascertain the legislature’s intent. The interpretation of a statute is a question of law

reserved for the courts, and we review such pure questions of law de novo. Turner v.

State, 870 N.E.2d 1083, 1086 (Ind. Ct. App. 2007).

      An amendment to a statute is usually presumed to evidence the legislature’s intent

to change the law unless it “clearly appears that the amendment was passed in order to

express the original intent more clearly.” Id. at 1087. We find that in this instance, the

legislature’s intent in enacting this amendment was to clarify and refine their original

intent in creating this statute. The changes more precisely define the behavior that the

legislature intended to criminalize by this statute – altering the scene of an unnatural

death in order to hinder a criminal investigation. The addition of the intent element was a

clarification so that only those who acted with the requisite criminal intent could be

prosecuted under this criminal statute. And the broadening of behavior encompassed by

this statute allowed it to more thoroughly achieve the intended objective of criminalizing

any tampering with the scene of an unnatural death and not just the moving of a body.



                                            7
       As a result, there was no real fundamental change in the behavior that was

criminalized. Nor was there any decrease in the maximum penalty under the statute,

which would have been an indication that the legislature believed the former penalty was

too severe. See, e.g. Turner, 870 N.E.2d at 1086; Palmer v. State, 679 N.E.2d 887, 892

n.4 (Ind. 1997) (the test for whether a statute is ameliorative is whether the maximum

penalty under the new statute is lower than the maximum penalty under the old statute).

We therefore find that the legislature intended for this amendment to be clarifying, not

ameliorative. As a result, the doctrine of amelioration is inapplicable to this case.

                         B. Ineffective Assistance of Trial Counsel

       Haugh also contends that his guilty plea should be withdrawn due to “manifest

injustice” due to ineffective assistance of trial counsel. He argues that his counsel had

not conducted an investigation of the facts and law before advising him to plead guilty.

       To prevail on an ineffective assistance of counsel claim, it must be shown that

counsel’s performance fell below an objective standard of reasonableness based on

prevailing professional norms and that this deficient performance resulted in prejudice.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Grinstead v. State, 845 N.E.2d

1027, 1031 (Ind. 2006). There is a strong presumption that counsel rendered adequate

assistance, and to show prejudice, it must be shown that but for counsel’s errors, the

result of the proceeding would have been different. Conder v. State, 953 N.E.2d 1197,

1203 (Ind. Ct. App. 2011).

       While Haugh claims that his counsel was ineffective, he provides no evidence that

he would have done anything other than plead guilty had his counsel been more familiar


                                              8
with the statute at issue in this case. He gives us no indication that if he had the benefit

of more or different information that he would not have changed his plea. The only

information on the record is that Haugh pled guilty of his own free will. There was no

“manifest injustice” due to ineffective assistance of counsel.

                                      C. Duress Defense

       Finally, Haugh contends that his plea was involuntary because he was convinced

by counsel that he did not have the defense of duress available to him. We disagree.

       Haugh testified at the guilty plea hearing that he acted under the fear of physical

harm when he moved Denvit’s body. Tr. p. 12-14. However, he also readily testified to

facts that substantiated the charges brought against him, admitting that he did not notify

the police when he realized that Denvit was dead and that he helped Hasse move Denvit’s

body out of the house. Id. After hearing this testimony, the trial court judge found that

Haugh pled guilty “knowingly and voluntarily” and that the plea was “supported by a

complete factual basis.” Id. at 32.

       Additionally, the trial court advised Haugh multiple times of the rights that he was

giving up by pleading guilty, even going so far as to explicitly inform him that he would

be giving up a potential duress defense by pleading guilty. See id. at 24 (“a possibility,

I’m not saying it’s a great or a winnable defense, but the possibility of a duress defense is

giving up – given up as well. Mr. Haugh, do you understand that?”), 30 (“And to be

perfectly clear, you’re also giving up this possible statutory defense of duress. Do you

understand all these rights that you’re giving up by pleading guilty?”). Based on the

record, Haugh was sufficiently advised that he was giving up this defense by pleading


                                             9
guilty, and he made the decision to go forward with the guilty plea of his own free will.

The plea was voluntary.

                               II. Inappropriate Sentence

       Haugh also contends that his executed sentence of two years is inappropriate in

light of the nature of the offense and his character. We disagree.

       Although a trial court may have acted within its lawful discretion in imposing a

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of sentences through Indiana Appellate Rule 7(B), which

provides that a 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.” Reid

v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. State, 868 N.E.2d 482,

491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). The defendant has the

burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006)).

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the


                                            10
crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224.

       The sentencing range for a Class D felony is six months to three years, with one

and one-half years being the advisory term. Ind. Code § 35-50-2-7. Here, the trial court

sentenced Haugh to one year in the Department of Correction and one year in

Community Corrections, for an aggregate sentence of two years. This sentence was

within the statutory range.

       Regarding the nature of the offense, there is nothing in the record that indicates

that this sentence is inappropriate. The offense took place after a night of drinking and

taking drugs. Haugh went along with Hasse’s plan to bury Denvit’s body on the Hasse

family farm even though he claimed he did not want to. Although he claims he acted

against his will and wanted to call the police instead of moving the body, Haugh never

notified the authorities of the events of that day or the location of the body until he was

found by law enforcement officials two years later living in Tennessee. The nature of the

offense was serious.

       Regarding his character, Haugh has a substantial history of arrests and

misdemeanor convictions; this crime even took place while he had other charges pending

against him. Appellant’s App. p. 49-52. His recidivism shows that he was not deterred

from criminal activity through his previous contact with the criminal justice system.

Haugh also has a substance-abuse problem, being arrested multiple times for substance-

abuse crimes, Tr. p. 96-97, 101, and even showing up intoxicated for his first sentencing

hearing. Id. at 81. While Haugh alleges that his mother has investigated outpatient


                                            11
alcohol-treatment programs so that he could finally receive treatment, id. at 88, this is not

sufficient to warrant a mitigation of his sentence.

       After due consideration of the trial court’s decision, we cannot say that Haugh’s

sentence of two years is inappropriate in light of the nature of the offense and his

character.

       Affirmed.

ROBB, C.J., and NAJAM, J., concur.




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