MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 05 2020, 11:12 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Justin D. Roddye Tyler G. Banks
Monroe County Public Defender’s Deputy Attorney General
Office Indianapolis, Indiana
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Joseph Lamm, June 5, 2020
Appellant/Defendant, Court of Appeals Case No.
19A-CR-3030
v.
Appeal from the Monroe Circuit
Court
State of Indiana,
The Hon. Valeri Haughton, Judge
Appellee/Plaintiff.
Trial Court Cause No.
53C02-1804-F3-409
Bradford, Chief Judge.
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Case Summary
[1] In April of 2018, Donald Lamm argued with his girlfriend Sarah Wray and
threatened to bury Wray alive and kill her friends if she left. The State charged
Lamm with, inter alia, Level 5 felony intimidation, and he pled guilty to that
charge and two charges in other cause numbers. Pursuant to a written plea
agreement, the trial court was to impose a sentence of four years in this cause
number, with placement at its discretion. The trial court sentenced Lamm to
serve his entire four-year sentence in the Department of Correction (“DOC”).
Lamm contends that the trial court abused its discretion in sentencing him and
that his placement in DOC is inappropriately harsh. Because we disagree, we
affirm.
Facts and Procedural History
[2] On April 5, 2018, Lamm was with his girlfriend Wray in their Monroe County
home when they began to argue. At one point, Lamm pulled down Wray’s
pants and “held himself against her while telling her ‘Isn’t this what you just
f[*****] want[?]’” Appellant’s App. Vol. II p. 12. When Wray refused to look
Lamm in the eyes, he took a pair of scissors and a butane torch, heated the
blades with the torch, asked Wray if she knew what an “eyeball boil” was, and
told her that she was about to find out, which she took to mean that Lamm
intended to stab her in the eye with the scissors. Appellant’s App. Vol. II p. 12.
Lamm also grabbed Wray several times around the neck, causing her to have
difficulty breathing, and told her that she was going to stay at home all night
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and he would find her if she left. Lamm also threatened to “shoot her friends
dead until he found her and then [he] would slowly bury her alive.”
Appellant’s App. Vol. II p. 13. On April 10, 2018, the State charged Lamm
with Level 3 felony criminal confinement, Level 5 felony intimidation, Level 6
felony strangulation, and Class A misdemeanor domestic battery in cause
number 53C01-1804-F3-409 (“Cause No. 409”).
[3] On June 13, 2019, while released on bond in Cause No. 409, Lamm strangled
Wray and shoved another person into a door. As a result of her injuries, Wray
had to be placed “on a very high-risk pregnancy status where [she] had several
hematomas around [her] uterus and trauma to the placenta where [she] almost
lost [her] child.” Tr. Vol II. p. 18. Based on the events of June 13, 2019, the
State charged Lamm with Level 5 felony domestic battery, Level 5 felony
strangulation, Class A misdemeanor domestic battery, and Class B
misdemeanor battery in cause number 53C02-1906-F5-657 (“Cause No. 657”).
[4] In September of 2019, Lamm was incarcerated when a jail officer intercepted a
letter indicating that he was attempting to locate a weapon for use upon his
release from jail. The officer notified the prosecutor’s office, and this led to a
bond-review hearing at which the jail officer testified and after which the trial
court refused to release Lamm. In a later telephone call with his mother,
Lamm told her, “‘Dude, if that one mother***** even attempts to step a foot in
B block, I’m going to tear his a[**] up.’” Appellant’s App. Vol. II p. 16. Lamm
was aware that the telephone call was being recorded and that its content could
be relayed to the jail officer. The State charged Lamm with Level 6 felony
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intimidation for his threat to the jail officer in cause number 53C02-1909-F6-
1032 (“Cause No. 1032”).
[5] On December 3, 2019, Lamm and the State entered into a plea agreement
pursuant to which he would plead guilty to Level 5 felony intimidation in
Cause No. 409, Level 5 felony strangulation in Cause No. 657, and Level 6
felony intimidation in Cause No. 1032 in exchange for the dismissal of all other
charges in the three cause numbers. The plea agreement fixed his sentence in
Cause No. 409 at four years, with placement at the discretion of the trial court;
in Cause No. 657 at three years, all suspended; and in Cause No. 1032 at 418
days of incarceration and 330 days of home detention.
[6] The trial court sentenced Lamm to four years of incarceration in the DOC in
Cause No. 409; three years of incarceration, all suspended to probation, in
Cause No. 657; and 418 days of incarceration in Cause No. 1032. The trial
court noted that the sentence in Cause No. 1032 had already been served and
ordered the sentences in Cause Nos. 409 and 657 to be served consecutively.
Discussion and Decision
[7] Lamm pled guilty to Level 5 felony intimidation in Cause No. 409 and agreed
that his sentence would be four years, with placement subject to the discretion
of the trial court.1 Indiana Code section 35-50-2-6(b) provides that “[a] person
who commits a Level 5 felony […] shall be imprisoned for a fixed term of
1
Lamm does not challenge the sentences in Cause Nos. 657 and 1032.
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between one (1) and six (6) years, with the advisory sentence being three (3)
years.” Lamm contends that the trial court abused its discretion in ordering
that he be committed to the DOC and that this placement is inappropriately
harsh.
I. Abuse of Discretion
[8] Under our current sentencing scheme, “the trial court must enter a statement
including reasonably detailed reasons or circumstances for imposing a
particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the
sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.”
Id. A trial court abuses its discretion if it (1) fails “to enter a sentencing
statement at all[,]” (2) enters “a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and mitigating factors
if any—but the record does not support the reasons,” (3) enters a sentencing
statement that “omits reasons that are clearly supported by the record and
advanced for consideration,” or (4) considers reasons that “are improper as a
matter of law.” Id. at 490–91. However, the relative weight or value assignable
to reasons properly found, or to those which should have been found, is not
subject to review for abuse of discretion. Id.
[9] Lamm contends that the trial court’s sentencing statement was insufficiently
detailed. Lamm also contends that the trial court failed to consider and/or
properly weigh his minimal criminal history, his military service, his acceptance
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of responsibility for his actions by pleading guilty, his history of substance
abuse, the hardship to his family should he be incarcerated, and the likelihood
that he would respond affirmatively to probation or home detention. The trial
court made the following statement before pronouncing sentence:
I believe that [the jail officer] indicated that he recognized Mr.
Lamm’s service to the Country, as do I, and I too appreciate that,
however, your service Mr. Lamm does not negate the disservice
that you have done to your victims, and uh, to those responsible
for, quite frankly, your wellbeing. Um, I will be candid when I
say that when I read, the thing that I think stuck with me when I
read the probable cause affidavit, and also the Pre-Sentence
Investigation Report, the idea of someone using a butane torch to
heat scissors in front of the person that they supposedly love with
the implicit threat that you’re going to use them somehow and
start talking about an eyeball boil, I think that stuck in my head
in a way that I cannot even express to you. Um, I would imagine
that’s as terrifying to experience or more terrifying to experience
than it is horrifying to read about. The fact that there was a
second attack is even more disturbing. Uh, I grant that you have
a limited conviction history, however, some of your actions have
been disturbing, um, I’m glad that you’ve been sober for a while,
but quite frankly it’s easier to be sober when incarcerated than it
is when you’re out and about. And I’m sure that temptation will
raise its ugly head again. I hope that you are able to deal with it
and get some treatment. I appreciate that you’ve accepted
responsibility for your actions. I appreciate the fact that you’ve
been fairly open and candid about them. Um, and I also
appreciate that [Wray] thinks that you need some mental health
services. I’m trying to touch on all of those things because I have
to look at the big picture. And while I understand [defense
counsel’s] feeling that you could benefit from being on home
detention and that if you were with the Veterans it would be in
Marion County, that would keep you away from [Wray], but
doesn’t change the underlying causes and, and your actions and
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doesn’t address your being held accountable and responsible for
the things that you have done. Despite some of the, perhaps
good things you’ve done, I’m not sure that I feel your addiction is
a mitigating factor. Um, as [defense counsel] argued, I, I think
it’s something that you need [to] get, that you need to address.
Um, I have a hard time with having you released to be closer to
your children when, quite honestly I don’t think you’re being a
role model for your children at this point in time. Children don’t
need to have a father who’s addicted, who attacks people, who
threatens to kill people, who threatens to blind them, and those
are some of the things that I’ve been, that I’ve read about you.
Now, I’ve had some pleasant conversations with you in here, and
I don’t think that, by any means, you’re beyond redemption. On
the other hand, I think that I have to hold you responsible for the
things that you did in fact do.
Tr. Vol. II pp. 27–28.
[10] We conclude that the trial court’s statement sufficiently states the reasons that it
imposed the sentence it did in Cause No. 409. The trial court clearly focused
on the circumstances of Lamm’s crime, especially how he threatened Wray
with the heated scissors. The trial court also noted Lamm’s struggles with
sobriety when he is not incarcerated, the present need to keep him away from
Wray and his children, and the importance of him being held responsible for his
actions. The trial court’s statement was more than sufficiently detailed to
convey its rationale.
[11] Moreover, and contrary to Lamm’s second contention, the record indicates that
the trial court considered all of Lamm’s proffered mitigators before
pronouncing sentence. To the extent that Lamm argues that the trial court
abused its discretion by failing to give these circumstances the mitigating weight
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he would have wished, this is not a cognizable claim on appeal. See Anglemyer,
868 N.E.2d at 491 (“Because the trial court no longer has any obligation to
‘weigh’ aggravating and mitigating factors against each other when imposing a
sentence […], a trial court can not now be said to have abused its discretion in
failing to ‘properly weigh’ such factors.”). Lamm has failed to establish that the
trial court abused its discretion in sentencing him.
II. Appropriateness of DOC Placement
[12] We “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.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “[W]hether we regard a sentence as appropriate
at the end of the day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). In addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique
perspective a trial court brings to its sentencing decisions.” Rutherford v. State,
866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
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[13] As mentioned, Lamm agreed to a four-year sentence in this case but argues that
a suspension of some or all of the executed portion of his sentence is
appropriate. “[I]t will be quite difficult for a defendant to prevail on a claim
that the placement of his sentence is inappropriate.” King v. State, 894 N.E.2d
265, 267 (Ind. Ct. App. 2008). “This is because the question under Appellate
Rule 7(B) is not whether another sentence is more appropriate; rather, the
question is whether the sentence imposed is inappropriate.” Id. at 268. “A
defendant challenging the placement of a sentence must convince us that the
given placement is itself inappropriate.” Id.
[14] Lamm does not argue that the nature of his offense warrants the suspension of
part of his executed sentence, and, indeed, the nature of Lamm’s intimidation
offense in Cause No. 409 is disturbing. During an argument with Wray, he told
her that, if she left, he would find her, “shoot her friends dead until he found
her and then […] slowly bury her alive.” Appellant’s App. Vol. II p. 13.
Moreover, when Wray refused to look Lamm in the eyes, he took a pair of
scissors and a butane torch, heated the blades with the torch, asked Wray if she
knew what an “eyeball boil” was, and told her she was about to find out, a
statement Wray understood as a threat to put out her eye. Appellant’s App.
Vol. II p. 12. The nature of Lamm’s offense does not justify a suspension of a
portion of his sentence.
[15] As for Lamm’s character, he has failed to establish that it warrants a suspension
of part of his sentence. Although Lamm’s criminal history prior to the three
cause numbers in this case was not particularly serious (consisting of two
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misdemeanor convictions in 2005), his more recent criminal history is. While
his prosecution for strangling and battering Wray in Cause No. 409 was
pending and Lamm was released on bond, he was arrested for strangling and
battering Wray again, this time when she was pregnant. These multiple
offenses against Wray are troubling and becoming progressively more serious.
Lamm also acknowledges a great deal of uncharged criminal conduct related to
his history of illegal drug use. Lamm admitted during the presentence
investigation that he had abused methamphetamine, marijuana, cocaine,
Lortab, and Flexeril and to growing and selling marijuana while in the military.
Lamm acknowledged having a “serious problem” with methamphetamine,
using up to 3.5 grams daily and selling it to support his habit. Lamm has also
been “admitted to Saul to Paul treatment program[,]” but his participation was
terminated unsuccessfully. Appellant’s App. Vol. II p. 18. Lamm’s history of
criminal conduct does not speak well of his character.
[16] Lamm contends that his guilty plea and previous military service warrant a
sentence modification. We note that Lamm’s guilty plea gave him a substantial
benefit and was therefore almost certainly the result of a pragmatic decision. In
exchange for his guilty plea, the State agreed to drop charges of Level 3 felony
criminal confinement, Level 5 felony domestic battery, Level 6 felony
strangulation, Class A misdemeanor domestic battery, Class A misdemeanor
domestic battery, and Class B misdemeanor battery. The criminal confinement
charge alone could have resulted in a sentence of up to sixteen years of
incarceration. See Ind. Code § 35-50-2-5(b). Given the great benefit conferred
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upon Lamm in exchange for his guilty plea, we cannot say that it necessarily
speaks well of his character. See, e.g., Norris v. State, 113 N.E.3d 1245, 1254
(Ind. Ct. App. 2018) (“A guilty plea is not necessarily a mitigating factor where
the defendant receives substantial benefit from the plea or where evidence
against the defendant is so strong that the decision to plead guilty is merely
pragmatic.”) (citation omitted), trans. denied. Moreover, while Lamm’s military
service is laudable, it is tainted by Lamm’s admission that he dealt illegal drugs
while in uniform and, in any event, does not negate the horrifying nature of his
offenses and his continuing violence against Wray. We conclude that Lamm
has failed to establish that his placement in DOC is inappropriate in light of the
nature of his offense and his character.
[17] We affirm the judgment of the trial court.
Baker, J., and Pyle, J., concur.
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