FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
R. PATRICK MCGRATH GREGORY F. ZOELLER
Madison, Indiana Attorney General of Indiana
HENRY A. FLORES, JR.
Deputy Attorney General
Indianapolis, Indiana
Oct 07 2014, 8:59 am
IN THE
COURT OF APPEALS OF INDIANA
JUSTIN J. CLARK, )
)
Appellant-Defendant, )
)
vs. ) No. 40A05-1402-CR-71
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-1106-FA-260
October 7, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Appellant/Defendant, Justin J. Clark (“Clark”), appeals his sentence of forty-five
(45) years executed for his conviction of Class A felony robbery resulting in serious
bodily injury.1 He argues that the sentence was inappropriate in light of the nature of his
offense and his character and that he should not have been sentenced to the same amount
of time as his co-defendant. We disagree and conclude that the trial court’s sentence was
appropriate.
We affirm.
ISSUE
Whether Clark’s sentence was inappropriate in light of the nature of his
offense and his character.
FACTS
In the summer of 2011, two weeks after Clark was released from prison, his friend
Keith Miller (“Miller”) approached him with a plan to make money. Clark had met
Miller in the Jackson County Jail in 2008, when both of them were inmates. Miller’s
plan was for the two of them to rob a jewelry store in North Vernon, Indiana. Miller had
been to the jewelry store and had known about the store for several years. He claimed
that he knew the store’s camera setup and could get the video footage from the camera
system after the robbery.
1
Ind. Code § 35-42-5-1 (2011). We note that, effective July 1, 2014, a new version of this robbery
resulting in serious bodily injury statute was enacted and that Class A felony robbery resulting in serious
bodily injury is now a Level 3 felony. Because Clark committed his crimes in 2011, we will apply the
statute in effect at that time.
2
Clark agreed with Miller’s plan, and on June 16, 2011, they went to the North
Vernon jewelry store. Miller engaged the store owner, Jim Pfeiffer (“Pfeiffer”), in
conversation while Clark walked to the back of the store. Miller then struck Pfeiffer
several times on the back of the head with a metal pipe and sprayed a substance into his
right eye.2 At that point, Clark jumped over the jewelry display case and began grabbing
jewelry. However, Miller heard police arriving and alerted Clark, who dropped the
jewelry in the store. The two then left the scene in a stolen vehicle and ran over Pfeiffer
with their car in the process. As a result of the attack, Pfeiffer was hospitalized and had
to close his store for two weeks.
Ultimately,3 on August 31, 2011, the State charged Clark with Count I, Class A
felony robbery resulting in serious bodily injury;4 Count II, Class B felony robbery with a
deadly weapon;5 Count III, Class C felony battery resulting in serious bodily injury;6
Count IV, Class D felony receiving stolen property;7 Count V, Class A felony aiding
robbery resulting in serious bodily injury;8 Count VI, Class A felony attempted robbery
resulting in serious bodily injury;9 and Count VII, Class A felony attempted robbery
2
It is not clear from the record what this substance was.
3
The State also filed two previous charging informations on June 17, 2011 and August 19, 2011. This is
the third and final amended charging information.
4
I.C. § 35-42-5-1 (2011).
5
I.C. § 35-42-5-1 (2011).
6
I.C. § 35-42-2-1(a)(3)(2011).
7
I.C. § 35-43-4-2.5 (2011).
8
I.C. §§ 35-42-5-1 and 35-41-2-4 (2011).
9
I.C. §§ 35-42-5-1 and 35-41-5-1 (2011).
3
resulting in serious bodily injury.10 The State also filed an habitual offender
enhancement alleging that Clark was an habitual offender because he had been convicted
of more than two prior unrelated felonies. On July 8, 2013, Clark pled guilty to Class A
felony robbery resulting in bodily injury pursuant to a plea agreement. In exchange for
Clark’s guilty plea, the State dismissed the remaining charges against him, as well as his
habitual offender enhancement. Clark and the State also agreed to leave sentencing open
to the trial court’s discretion.
Subsequently, on January 14, 2014, the trial court held a sentencing hearing.
Pfeiffer testified at the hearing regarding the effect Clark’s offense had on him and his
family. In addition to requiring two weeks of hospitalization following the robbery and
losing profits from having to close the store during that time, Pfeiffer said that he still had
trouble with his vision, especially in his right eye, which was “becoming increasing[ly]
worse.” (Tr. 18). He also said that he and his family had become afraid to work in the
jewelry store, had suffered from emotional anguish, and feared retribution from Clark or
people affiliated with Clark.
Later in the hearing, Clark testified that he had cooperated with law enforcement
throughout the investigation and had told them where they could find the metal pipe
Miller used in the robbery. Clark also reported to the court that he had testified against
Miller during Miller’s trial. However, Clark admitted that he had known prior to the
robbery that Miller’s plan was to “hit” Pfeiffer “with something.” (Tr. 69).
10
I.C. §§ 35-42-5-1; 35-41-2-4; and 35-41-5-1 (2011).
4
Samuel Thomas Beard (“Commander Beard”), the Commander for the Jennings
County Sheriff’s Office, also testified at the hearing and stated that Clark had been
“acting out” and “disrupting the normal operations of the Jail” since his incarceration.
(Tr. 27). Clark had committed several “major offenses” while incarcerated, including
attempting to escape his cell block, holding cell, or other place of confinement on at least
three occasions; fighting, threatening another with bodily harm, or assaulting an
individual on at least four occasions; possessing contraband or prohibited property on at
least three occasions; and destroying or defacing jail property on at least seven occasions.
Overall, he had nineteen major “write-ups” in the Jennings County Jail. (Tr. 31).
Eventually, he was moved to the Floyd County Jail, which had the ability to segregate
him from other inmates. Commander Beard testified that officers in Floyd County had
reported that Clark was also an “extreme behavioral problem” there. (Tr. 30).
At the conclusion of the hearing, the trial court sentenced Clark to forty-five (45)
years executed in the Department of Correction. The court found as aggravating factors:
(1) the long-term emotional and physical harm Pfeiffer and his family had suffered and
will continue to suffer; (2) the randomness of the victim and the premeditation of the
offense by “casing the joint”; (3) Clark’s criminal history; (4) Clark’s outstanding
criminal warrant in the State of Tennessee; (5) Clark’s lack of gainful employment; (6)
Clark’s longtime drug abuse; (7) Clark’s behavior while incarcerated; and (8) Clark’s
previous gang affiliation. (Tr. 80). As mitigating factors, the court recognized Clark’s
guilty plea, his “disjointed childhood,” and his eventual cooperation with law
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enforcement. (Tr. 80). Clark now appeals. We will provide additional facts as
necessary.
DECISION
On appeal, Clark argues that his sentence is inappropriate in light of the nature of
his offense and character, and he requests that we revise his sentence pursuant to
Appellate Rule 7(B). Under Appellate Rule 7(B), a reviewing court may revise a
sentence if, after due consideration of the trial court’s decision, it finds that the sentence
is inappropriate in light of the nature of the offense and the character of the offender.
Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006). In determining whether a
sentence is inappropriate, we look at the defendant’s culpability, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a given case.
Moss v. State, 13 N.E.3d 440, 447 (Ind. Ct. App. 2014). Although this Court is not
required to use “great restraint” in evaluating a sentence under Appellate Rule 7(B), we
nevertheless exercise deference to a trial court’s sentencing decision, both because
Appellate Rule 7(B) requires that we give “due consideration” to that decision and
because we recognize the unique perspective a trial court has when making decisions.
Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App. 2007). We recognize that the
“principal role of appellate review should be to attempt to leaven the outliers and to
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). The defendant bears the burden of
persuading this Court that his sentence is inappropriate. Childress, 848 N.E.2d at 1080.
6
Primarily, Clark argues that the trial court should not have sentenced him to forty-
five (45) years, which is five (5) years below the maximum for a Class A felony, because
Miller was also sentenced to forty-five (45) years and had a greater role in the offense.
See I.C. § 35-50-2-4. He also argues that, although Pfeiffer’s injuries were extensive,
serious bodily injury was contemplated as part of his offense, and Pfeiffer’s injuries were
not excessive enough to justify his sentence.
In support of his first argument, Clark cites to Trowbridge v. State, 717 N.E.2d
138, 150 (Ind. 1999), reh’g denied, in which our Supreme Court noted that, although we
are not required to compare sentences among those convicted of the same or similar
crimes, we are not precluded from doing so. Clark argues that Miller was responsible for
casing the jewelry store, enlisting Clark, and attacking Pfeiffer, whereas he was unarmed,
voluntarily confessed, cooperated with law enforcement, and testified against Miller. He
contends that, as a result of these actions, he was less culpable for the offense than Miller
and should receive a lower sentence. We disagree with Clark and find that, even if Miller
had a greater role in planning and perpetuating the offense, Clark’s sentence was
appropriate.
Significantly, we must note that, even if we may compare sentences among those
convicted of the same crimes, we are not required to do so. Id. Nevertheless, even if we
do compare Clark and Miller’s actions, their culpability was substantially the same. Even
though it was Miller who planned the robbery, Clark acquiesced to the plan. Also, it is
clear that even if Clark was unarmed and did not attack Pfeiffer himself, he knew ahead
of time that Miller was going to “hit” Pfeiffer “with something” and proceeded with the
7
robbery anyway. (Tr. 69). Finally, with respect to their actions after their arrests,
although Clark eventually cooperated with law enforcement, testified against Miller, and
pled guilty to his offense, it was in his best interests to do so. In exchange for his guilty
plea, the State dismissed the remaining six charges against him as well as the habitual
offender enhancement. We have previously held that a plea may not be significantly
mitigating when a defendant receives a substantial benefit in exchange. Anglemyer v.
State, 875 N.E.2d 218, 221 (Ind. 2007), clarifying decision on reh’g.
Next, Clark argues that the nature of his offense did not warrant his sentence
because, although Pfeiffer suffered serious injuries, serious bodily injury was a statutory
element of his offense. We acknowledge that serious bodily injury was an element of
Clark’s offense. However, we do not find Clark’s argument dispositive because the
extent of Pfeiffer’s injuries was only one factor contributing to the severity of Clark’s
offense. Other aspects of Clark’s offense and his character are sufficient to warrant his
sentence absent consideration of Pfeiffer’s injuries.
Specifically, in terms of the nature of Clark’s offense, Clark’s actions were pre-
meditated. He heard Miller’s plan for the robbery and robbed Pfeiffer knowing that
Miller was going to “hit” Pfeiffer and that Pfeiffer could suffer serious bodily injuries.
(Tr. 69). Moreover, Clark and Miller did not merely “hit” Pfeiffer. Pfeiffer was hit on
the head “several times” with a metal bar and sprayed in the eye with an unknown liquid.
Miller and Clark then ran over Pfeiffer with a stolen car attempting to get away from the
police.
8
Additionally, Clark’s character supports his sentence. This is not Clark’s first
major offense, and he has a significant criminal history. At only twenty-five years old, he
has had four prior felony convictions, two misdemeanor convictions, and still has an
outstanding criminal warrant for an offense in Tennessee. While incarcerated in Jennings
and Floyd Counties, Clark continued to have behavioral issues and had nineteen major
write-ups in Jennings County alone. It is not clear from the record how many write-ups
he accumulated after his transfer to the Floyd County Jail, but Commander Beard
testified that officers at the Floyd County Jail reported that Clark continued to have
“extreme behavioral problem[s]” in Floyd County. (Tr. 30). Finally, the one time Clark
was given the benefit of probation, he violated that probation. These facts demonstrate
that Clark has a substantial and continuing disregard for the law and authority.
Therefore, in light of the nature of Clark’s offense and this evidence of his character, we
conclude that the trial court’s sentence was not inappropriate. We decline to revise it
under Appellate Rule 7(B).
Affirmed.
NAJAM, J., and BAILEY, J., concur.
9