MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Sep 16 2016, 8:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James Harper                                             Gregory F. Zoeller
Harper & Harper, LLC                                     Attorney General of Indiana
Valparaiso, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Sprague,                                         September 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1604-CR-756
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Roger V. Bradford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         64D01-1208-FA-8168



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 64A03-1604-CR-756 | September 16, 2016     Page 1 of 10
                                             Case Summary
[1]   Michael Sprague appeals his forty-year sentence for Class A felony aiding in

      burglary. We affirm.


                                                    Issues
[2]   Sprague raises two issues, which we restate as:


                       I.      whether the trial court abused its discretion in
                               sentencing Sprague; and

                       II.     whether his sentence is inappropriate in light
                               of the nature of the offense and the character
                               of the offender.


                                                     Facts
[3]   On August 8, 2012, Dominick Fazzini, Jordan Wilkerson, and Shawn Duffy

      forced their way into the residence of Cheri Baruch in Valparaiso. Sprague had

      driven the men to the residence, and he waited in the car. Wilkerson knocked

      Baruch to the ground, held her down, and beat her head against the floor.

      Duffy and Fazzini were armed with guns and made her open a safe. The men

      took guns and cash from the safe. They also ripped Baruch’s shirt off and

      ordered her to put on another shirt.


[4]   Sprague, who was still waiting outside of the residence, saw a neighbor

      approaching and warned the other men. They left the residence with Sprague

      driving, and the neighbor followed them. The neighbor chased them on U.S.

      30, and Sprague crashed the vehicle at an intersection. When the neighbor also


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      stopped and pointed a gun at one of the men, the man shot the neighbor in the

      hand. An FBI agent who witnessed the crash exchanged gunfire with Duffy,

      and Duffy shot himself in the head and died. Sprague, Wilkerson, and Fazzini

      were all apprehended.


[5]   The State charged Sprague with Class A felony aiding in burglary, Class B

      felony aiding in robbery, and Class B felony aiding in criminal confinement.

      Sprague pled guilty to Class A felony aiding in burglary, and the State

      dismissed the remaining charges. The plea agreement capped his sentence at

      forty years. The trial court found Sprague’s remorse and acceptance of

      responsibility by pleading guilty to be mitigators. The trial court found the

      following aggravators—Sprague’s history of criminal activity, the fact that the

      harm suffered by the victim was far greater than the harm necessary to prove

      the elements of the offense, and the fact that Sprague was responsible for danger

      to the community by engaging in a high-speed chase. The trial court concluded

      that the aggravators outweighed the mitigators and sentenced Sprague to forty

      years in the Department of Correction with five years suspended to probation.

      Sprague now appeals.


                                                  Analysis
                                                I. Sentencing

[6]   Sprague argues that the trial court abused its discretion when it sentenced him.

      Sentencing decisions are within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d


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      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement at all; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the

      record and advanced for consideration; and (4) entering a sentencing statement

      in which the reasons given are improper as a matter of law. Id. at 490-91. The

      reasons or omission of reasons given for choosing a sentence are reviewable on

      appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

      i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[7]   Sprague first argues that the trial court abused its discretion by failing to enter a

      sentencing statement that explains the reasons for the sentence imposed. A

      sentencing statement “must include a reasonably detailed recitation of the trial

      court’s reasons for imposing a particular sentence.” Id. at 490. Sprague

      describes the sentencing statement as “barebones” and argues that the trial

      court failed to explain how Baruch’s injuries were greater than those necessary

      to prove the offense and how the aggravating factors outweighed the mitigating

      factors. Appellant’s Br. p. 17.


[8]   The trial court here discussed each of the aggravators and mitigators, stated that

      the aggravators outweighed the mitigators, and explained that it was adding ten

      years to the advisory sentence. Although the sentencing statement may not

      have been extremely lengthy, it was not required to be. Our review of the



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       sentencing statement reveals that it was adequate and included a reasonably

       detailed recitation of the reasons for imposing the sentence.


[9]    Next, Sprague argues that the trial court abused its discretion by finding the

       victim’s injuries as an aggravator. Indiana Code Section 35-38-1-7.1(a)(1) notes

       that the trial court may consider harm, injury, loss, or damage suffered by the

       victim that was significant and greater than the elements necessary to prove the

       commission of the offense. The Class A felony burglary conviction required

       proof of bodily injury to Baruch. Bodily injury is defined as “any impairment

       of physical condition, including physical pain.” Ind. Code § 35-31.5-2-29. The

       trial court found that “the harm suffered by this victim was far greater than the

       harm necessary to prove the elements of the offense.” Tr. p. 29. The trial court

       noted “there was well beyond mere bodily injury to the victim.” Id. at 30. The

       probable cause affidavit indicates that Baruch had injuries to her head, knee,

       and back as a result of the beating during the burglary. Baruch’s victim’s

       statement, which was read during the sentencing hearing, made it clear that she

       was severely traumatized by the incident and had constant nightmares. Given

       the multiple injuries and severe emotional trauma sustained by the victim, we

       cannot say that the trial court abused its discretion by considering this

       aggravator.


[10]   Sprague also disputes the trial court’s use of danger to the community as a

       result of the vehicle chase as an aggravator. The trial court noted that Sprague

       was “responsible for . . . the danger to the community caused by his taking off

       in a high-speed vehicle chase.” Tr. p. 30. The nature and circumstances of the

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       crime can be an aggravating factor. Gleason v. State, 965 N.E.2d 702, 711 (Ind.

       Ct. App. 2012). Sprague argues that “nothing in the record establishes the

       nature of the vehicle chase or that the chase endangered the community.”

       Appellant’s Br. p. 18. The probable cause affidavit indicates that Sprague drove

       a vehicle in a high-speed chase on U.S. 30 and crashed into another vehicle. 1

       This evidence is sufficient to show that his conduct was a danger to the

       community, and the trial court did not abuse its discretion by finding this fact to

       be an aggravating factor.


[11]   Sprague next argues that the trial court abused its discretion by failing to

       identify all significant mitigating circumstances. A trial court is not obligated to

       accept a defendant’s claim as to what constitutes a mitigating circumstance.

       Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court

       failed to find a mitigating circumstance requires the defendant to establish that

       the mitigating evidence is both significant and clearly supported by the record.

       Anglemyer, 868 N.E.2d at 493.


[12]   The trial court found two mitigating circumstances—Sprague’s remorse and the

       fact that he accepted responsibility by pleading guilty. According to Sprague,

       the trial court should have also found undue hardship to his mother as a

       mitigator. Many persons convicted of serious crimes have dependents and,

       absent special circumstances, trial courts are not required to find that




       1
           Both Sprague and the State rely on the probable cause affidavit for the relevant facts.


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       imprisonment will result in an undue hardship. Dowdell v. State, 720 N.E.2d

       1146, 1154 (Ind. 1999). In the pre-sentencing investigation report, Sprague

       indicated that he had no source of income and had been dependent on his Pell

       grants, his mother, and his sister for several years. At the sentencing hearing,

       Sprague’s mother testified that she had several surgeries and is disabled. She

       testified that Sprague’s imprisonment had made it more difficult for her to

       operate her dog rescue business and that she was “doing the best that [she]

       can.” Tr. p. 9. Although Sprague apparently physically assisted his mother

       with her business and chores, we cannot say that special circumstances are

       present here to require the trial court to find undue hardship. The mitigating

       evidence regarding undue hardship is not significant and the trial court did not

       abuse its discretion by failing to find undue hardship as a mitigator.


                                         II. Inappropriate Sentence

[13]   Sprague argues that his forty-year sentence is inappropriate under Indiana

       Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we find that the sentence is inappropriate in light of the nature of the

       offenses and the character of the offender. When considering whether a

       sentence is inappropriate, we need not be “extremely” deferential to a trial

       court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). Still, we must give due consideration to that decision. Id. We also

       understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. Under this rule, the burden is on the defendant to

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       persuade the appellate court that his or her sentence is inappropriate. Childress

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


[14]   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. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[15]   The nature of the offense reveals that Sprague and his cohorts engaged in a

       home invasion where they beat the victim and stole guns and cash. Sprague

       emphasizes that he was only the get-away driver, but that argument minimizes

       his conduct. Sprague was well aware of what the other men were doing in the

       house, warned them that a neighbor had arrived, and engaged in a high-speed

       chase while attempting to escape the area. After Sprague wrecked into another

       vehicle at a highway intersection, one of Sprague’s cohorts engaged in a gun

       fight with officers at the intersection and ultimately turned his gun on himself,

       resulting in his death. Another of his cohorts shot the neighbor who had

       pursued them. Although Sprague may not have been in the house terrorizing

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       Baruch or shooting at anyone, he was clearly an active participant in the

       offense.


[16]   As for the character of the offender, we acknowledge twenty-seven-year-old

       Sprague’s remorse and guilty plea. However, we must also acknowledge his

       criminal history. As an adult, Sprague has been arrested eight times, including

       the current offense. Sprague has a 2009 felony conviction in Illinois for Class 4

       felony possession of cannabis. He was found guilty in 2005 of Class A

       misdemeanor possession of drug paraphernalia and Class A misdemeanor

       possession of cannabis. The trial court withheld judgment and sentenced him

       to one year of supervision. In 2009, he was charged with Class A misdemeanor

       carrying/possession of a firearm, and he was sentenced to one year

       “conditional discharge.” App. Vol. II p. 28. Sprague acknowledged that, at the

       time of the offense, he was smoking marijuana on a daily basis.


[17]   Sprague attempts to compare his sentence to that imposed on Fazzini. Fazzini,

       who has been described as the ringleader of the offense, apparently received the

       same sentence as Sprague. Our supreme court has held that we “need not

       compare” sentences of codefendants. Knight v. State, 930 N.E.2d 20, 22 (Ind.

       2010). Even if we were to attempt comparing the sentences, we have no

       information regarding Fazzini’s criminal history or character. We cannot say

       that Sprague was entitled to a lesser sentence. Given the serious nature of the

       offense and Sprague’s criminal history, we cannot say that his sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.

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                                                 Conclusion
[18]   The trial court did not abuse its discretion when it sentenced Sprague, and his

       forty-year sentence is not inappropriate. We affirm.


[19]   Affirmed.


       Riley, J., and Bailey, J., concur.




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