MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Mar 29 2019, 6:26 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Clayton Miller Curtis T. Hill, Jr.
Jordan Law, LLC Attorney General of Indiana
Richmond, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron Boggs, March 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1854
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Gregory A. Horn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
89D02-0204-FA-6
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1854 | March 29, 2019 Page 1 of 13
Statement of the Case
[1] Aaron Boggs appeals the seventy-year sentence the trial court imposed in 2003
for his convictions of three counts of burglary, one as a Class A felony and two
as Class B felonies; and one count of auto theft, a Class D felony. We affirm.
Issues
[2] Boggs raises two issues, which we restate as:
I. Whether the trial court improperly enhanced Boggs’
sentence based on factors not admitted or not found
beyond a reasonable doubt, in violation of the holding in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159
L. Ed. 2d 403 (2004).
II. Whether Boggs’ sentence is inappropriate in light of the
nature of the offense and the character of the offender.
Facts and Procedural History
[3] In the very early morning hours of April 28, 2002, eighteen-year-old Boggs
initiated a crime spree in Wayne County after consuming a fifth of alcohol,
several Xanax pills, and marijuana. Boggs first stole a vehicle from the home of
Dr. Agrawal. Boggs crashed that vehicle soon after leaving the doctor’s home
and sustained several facial lacerations. He fled on foot, but an eyewitness later
identified him as the driver.
[4] Next, he broke into the home of Donald and Mary Cox. Mary awakened and,
while walking through the house, saw that closet doors had been opened, lights
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were on, and the burners on the stove were on. A bedroom door was closed.
Mary woke Donald up and left the house with their three-year-old grandchild,
who was spending the night with them.
[5] Seventy-year-old Donald opened the bedroom door and confronted Boggs, who
Donald later described as having facial lacerations. Boggs produced a knife and
stabbed Donald three times. One of the stab wounds was eight inches deep and
caused a severe injury to Donald’s femoral nerve. He survived, but he was no
longer able to drive or swim.
[6] Meanwhile, Boggs fled from the Coxes’ home, leaving a shoe there. He broke
into the home of James Wolberg. No one was home. Boggs left his other shoe
there, along with several items belonging to the Coxes. Boggs also broke into
the home of John and Francis Markey, but no one was home.
[7] Later in the day on April 28, 2002, police officers found Boggs in Richmond,
Indiana. He had in his possession shoes belonging to James Wolberg and
jewelry belonging to Mary Cox.
[8] The State charged Boggs with attempted murder for his attack on Cox; Class A
felony burglary in relation to the Cox residence; two counts of Class B felony
burglary in relation to the Wolberg and Markey residences, respectively; and
one count of auto theft, a Class D felony, in relation to Dr. Agrawal’s vehicle.
[9] The trial court set bond in the amount of $500,000. Boggs filed a motion for
bond reduction, which the trial court denied after a hearing. Next, Boggs filed a
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motion for psychiatric evaluation to determine his competence to stand trial.
The trial court appointed mental health professionals to examine Boggs and
scheduled an evidentiary hearing. At the hearing, Boggs withdrew his motion
to determine competence and expressed an intent to plead guilty to some of the
charges.
[10] Meanwhile, the State had filed a motion for emergency pre-trial transfer, asking
the trial court to order Boggs to be sent to the Indiana Department of
Correction (DOC) while the case was pending. The State claimed Boggs was
violent and disruptive while in the Wayne County Jail. The court granted the
State’s request, directing that Boggs be incarcerated in the DOC pending
resolution of the case.
[11] On March 25, 2003, the trial court held a “mercy plea hearing.” Tr. Vol. 1, p.
23. Boggs pleaded guilty, without a plea agreement, to three counts of burglary
and one count of auto theft. Sentencing was left up to the trial court. At the
same hearing, Boggs pleaded guilty to offenses in other pending cases, as
follows:
89D02-0211-FD-114 Class D felony battery of a law
enforcement officer and Class B
misdemeanor mischief
89D02-0205-FD-53 Class D felony theft
89D02-0111-DF-90 Class D felony theft
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89D02-0109-DF-78 Class D felony residential entry
[12] On April 3, 2003, the trial court held a sentencing hearing and imposed an
aggregate sentence of seventy years for the current case. The State moved to
dismiss the charge of attempted murder, and the court granted the motion. The
court also imposed sentences in FD-114, FD-53, DF-90, and DF-78. During
the hearing, the State moved to dismiss a sixth case against Boggs, 89D02-0211-
FC-37, and the court granted the motion.
[13] The trial court appointed appellate counsel for Boggs for the current case but,
on May 8, 2003, vacated the appointment on its own motion. In 2015, Boggs
filed a pro se petition to file a belated notice of appeal pursuant to Indiana Post-
Conviction Rule 2. The court denied that petition. On July 17, 2018, Boggs,
represented by the Indiana State Public Defender, filed a second petition for
permission to file a belated appeal pursuant to Post-Conviction Rule 2. The
trial court granted the petition, and this appeal followed.
Discussion and Decision
I. Blakely Analysis
[14] Boggs argues that his seventy-year sentence violates the United States Supreme
Court’s decision in Blakely, in which the Court stated: “‘Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
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a reasonable doubt.’” 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435
(2000)). A defendant may admit to facts that increase the penalty for a crime.
Id. at 310, 124 S. Ct. at 2541. In addition, a defendant may “consent to judicial
factfinding.” Id. at 310, 124 S. Ct. at 2541.
[15] As an initial matter, we must determine whether Boggs is permitted to raise a
Blakely claim. The holding in Blakely was a new rule of conduct for criminal
prosecutions and applied to cases that were pending on direct review or not yet
final when Blakely was handed down on June 24, 2004. Smylie v. State, 823
N.E.2d 679, 687-88 (Ind. 2005).
[16] In Boggs’ case, the circumstances are complicated because the trial court
imposed a sentence on April 9, 2003, and initially appointed appellate counsel
to represent Boggs. The trial court, on its own motion, subsequently vacated
the appointment of counsel on May 8, 2003, and the deadline to file a Notice of
Appeal elapsed. Boggs did not receive his direct appeal until 2018, when he
received the trial court’s permission to file a belated notice of appeal.
[17] In Gutermuth v. State, 868 N.E.2d 427, 428 (Ind. 2007), Gutermuth pleaded
guilty to three felonies in 1997 and did not pursue a direct appeal. He later
claimed the trial court failed to advise him of his right to appeal his sentence.
Gutermuth filed a petition for post-conviction relief in 2000, which was denied.
The United States Supreme Court handed down its decision in Blakely while his
post-conviction appeal was pending on appeal. After the post-conviction appeal
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ended unfavorably for Gutermuth, he filed with the trial court a petition for
permission to file a belated appeal, which the trial court granted. On appeal, he
raised a sentencing claim under Blakely. The Indiana Court of Appeals affirmed
his sentence, and the Indiana Supreme Court took transfer to determine
“whether Blakely applies in belated appeals pursued under Post-Conviction Rule
2.” Id. at 430.
[18] The Indiana Supreme Court noted that belated appeals under Post-Conviction
Rule 2 are “available only to those whose convictions and sentences have
otherwise become final.” Id. at 433. Further, although a belated notice of
appeal is treated as if filed within the prescribed period, the Court declined to
conclude that a belated direct appeal initiates a new “direct review” of the case.
Id. Instead, the Court determined a belated appeal “is treated as though it was
filed within the time period for a timely appeal but is subject to the law that
would have governed a timely appeal.” Id. Consequently, the Indiana
Supreme Court held, “a defendant's case becomes ‘final’ for purposes of
retroactivity when the time for filing a timely direct appeal has expired.” Id. at
434. “Blakely is not retroactive for Post-Conviction Rule 2 belated appeals.” Id.
at 432.
[19] In this case, the trial court vacated its appointment of appellate counsel to
represent Boggs, and the thirty-day deadline to file a Notice of Appeal expired.
Following the holding in Gutermuth, Boggs may not raise a Blakely claim in this
belated direct appeal under Post-Conviction Rule 2.
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II. Appropriateness of Sentence
[20] Boggs asks this Court to reduce his sentence by an unspecified amount,
contending the sentence is justified by neither the circumstances of the case nor
his character.
[21] Indiana 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 determine
the sentence is inappropriate in light of the nature of the offense and the
1
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). In conducting our review, we may consider all aspects of the penal
consequences imposed by the trial court in sentencing, including whether the
sentences are ordered to run concurrently or consecutively. Davidson v. State,
926 N.E.2d 1023, 1025 (Ind. 2010).
[22] A defendant bears the burden of persuading this Court that his or her sentence
meets the inappropriateness standard. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). Our resolution of whether a sentence is appropriate turns on
myriad factors which come to light in a given case, including our sense of the
culpability of the defendant, the severity of the crime, and the damage done to
others. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
1
At the time Boggs committed his offenses, the standard of review set forth in Rule 7(B) was whether a
sentence was “manifestly unreasonable,” not whether it was inappropriate. Because Rule 7(B) is directed to
the reviewing court, we apply the inappropriateness standard. Polk v. State, 783 N.E.2d 1253, 1260 (Ind. Ct.
App. 2003), trans. denied.
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[23] At the time Boggs committed the offenses at issue here, a person who
committed a Class A felony could be sentenced to thirty years, with no more
than twenty years added for aggravating circumstances or not more than ten
years subtracted for mitigating circumstances. Ind. Code § 35-50-2-4 (1995). A
person who committed a Class B felony could be sentenced to ten years, with
not more than ten years added for aggravating circumstances or not more than
four years subtracted for mitigating circumstances. Ind. Code § 35-50-2-5
(1977). Finally, a person who was found guilty of a Class D felony could be
sentenced to one and one-half years, with not more than one and one-half years
added for aggravating circumstances or not more than one year subtracted for
mitigating circumstances. Ind. Code § 35-50-2-7 (1999).
[24] The trial court sentenced Boggs to the maximum sentence of fifty years for the
Class A felony burglary conviction. Next, the trial court imposed sentences of
ten years for each Class B felony burglary conviction, and one and a half years
for the Class D felony auto theft conviction. The court ordered Boggs to serve
the three burglary sentences consecutively to one another, with the auto theft
sentence served concurrently, for an aggregate sentence of seventy years. The
aggregate sentence was well short of the maximum possible sentence of ninety-
three years.
[25] Turning to the nature of the offenses, Boggs focuses on the Class A burglary
conviction, arguing “there is nothing particularly egregious about how Boggs
committed the offense.” Appellant’s Br. p. 13. We disagree. In the middle of
the night, after consuming controlled substances and alcohol (which, as a
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person under the age of twenty-one, Boggs was also not supposed to consume),
Boggs stole a car and promptly wrecked it, injuring himself. Undeterred by the
outcome of this criminal act, Boggs broke into the Coxes’ home and ransacked
it. When he was confronted by seventy-year-old Donald, Boggs chose not to
surrender and instead repeatedly stabbed him. The stab wounds could have
been fatal to Donald, but they instead resulted in permanent nerve injuries that
would prevent him from driving or swimming again and hindered his ability to
climb stairs. The new limits on Donald’s mobility, and the Coxes’ fear resulting
from Boggs’ break-in, forced them to change residences.
[26] Boggs did not check Donald’s injuries, and he did not contact 911. Instead,
Boggs chose to flee, taking with him some of the Coxes’ property. He next
broke into two more homes, stealing items from at least one of them. Boggs
had ample opportunities to halt his nighttime crime spree but continued in his
criminal conduct.
[27] Turning to the character of the offender, Boggs was eighteen years old when he
committed the offenses at issue in this case. He had a relatively lengthy
juvenile record beginning in 1995, accruing adjudications for being a runaway,
for being truant, and for acts that would have amounted to two counts of theft
or possession of stolen property as Class D felonies, if committed by an adult.
He was twice placed in the custody of the Indiana Department of Correction.
In addition, he was placed on parole and failed to comply with the terms of
parole, resulting in being returned to the custody of the Indiana Department of
Correction for a third time.
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[28] In addition, Boggs had several adult criminal cases pending when he committed
the current offenses, and he was out of jail on bond. After he was arrested in
the current case, he committed repeated acts of misconduct until the trial court
sent Boggs to the DOC while his charges were pending. In addition, Boggs
committed additional criminal acts while detained at the jail, specifically
battering a law enforcement officer, a Class D felony, and criminal mischief, a
Class B misdemeanor, as charged in Cause Number 89D02-0211-FD-114.
[29] Boggs argues that the following factors should result in a reduced sentence: his
relatively young age at the time he committed the offenses, his expression of
remorse to Mr. Cox, his lack of an adult criminal record when he committed
these crimes, his lack of any prior violent offenses as a juvenile, his guilty plea,
2
and undue hardship to his child. We disagree. Boggs’ lengthy juvenile record
demonstrates he had ample opportunities to reform his conduct and lead a
crime-free adult life. He instead committed numerous felonies after turning
eighteen, in the current case and in others. Two of the offenses were violent:
the Class A felony burglary charge in this case, and the Class D felony battery
on a law enforcement officer in FD-114. His criminal behavior thus increased
in both frequency and severity.
2
Boggs claims the trial court identified several circumstances as mitigating factors but “actually failed to give
Boggs any mitigation whatsoever.” Appellant’s Br. p. 15. To the extent Boggs is claiming the trial court
should have given more weight to mitigating circumstances, that claim is unavailable on appellate review.
See Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (“we cannot review the relative weight
assigned” to aggravating and mitigating factors), trans. denied.
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[30] As for Boggs’ guilty plea and apology to Donald Cox, we note the evidence
against Boggs was solid, and his guilty plea may reflect a pragmatic decision
rather than true remorse. See Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct.
App. 2011) (guilty plea and expression of remorse were likely pragmatic due to
the substantial evidence against defendant), trans. denied. Next, the trial court
determined the hardship to Boggs’ daughter, who was an infant at the time of
Boggs’ sentencing in 2003, was a mitigating factor but assigned it little weight
because Boggs had not been ordered by a court to pay child support. Boggs has
pointed to no evidence to counter the trial court’s determination.
[31] Boggs also argues the trial court erred in considering the nature of Donald
Cox’s injury as an aggravating circumstance, claiming that the injury already is
an inherent part of the offense as a Class A felony and that the trial court
effectively enhanced his sentence twice. This argument is more properly
address to whether the trial court abused its sentencing discretion, not whether
the sentence is inappropriate. In any event, we disagree with Boggs’ claim.
When a trial court determines the individualized circumstances of the offense
are an aggravating factor, there generally should be some indication that the
manner in which the crime was committed was particularly egregious, beyond
what the legislature contemplated when it prescribed the presumptive sentence
for that offense. Jimmerson v. State, 751 N.E.2d 719, 724 (Ind. Ct. App. 2001).
[32] In Boggs’ case, the court determined “the nature and circumstances of the crime
committed, including the violent nature of the crime committed upon the
victim, Donald Cox,” was an aggravating factor. Tr. Vol. 1, p. 103. With
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reference to the circumstances of the crime, the court also noted, “[w]hat
you’ve done is ruined a family’s life.” Id. at 102. The court further stated,
“[a]nd to see Mr. Cox and the damage that you’ve wreaked on his family
appals [sic] me.” Id. at 102-03. After Boggs’ attack on Donald Cox, he was
unable to drive or swim, and the Cox family was forced to move out of their
home. The trial court sufficiently stated its reasons for identifying this
aggravating factor, and we see no reason to reduce Boggs’ sentence. Boggs has
failed to carry his burden of demonstrating that his seventy-year sentence is
inappropriate.
Conclusion
[33] For the reasons stated above, we affirm the judgment of the trial court.
[34] Affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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