Julius L. Sapp v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Oct 15 2020, 8:23 am
court except for the purpose of establishing
                                                                                      CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Kelly M. Starling                                        Attorney General of Indiana
Indianapolis, Indiana                                    Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Julius Sapp,                                             October 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-638
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Amy Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1907-F3-26746



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020                Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Julius Sapp (Sapp), appeals his sentence following his

      conviction for armed robbery, a Level 3 felony, Ind. Code § 35-42-5-1(a)(1); and

      battery by means of a deadly weapon, a Level 5 felony, I.C. §§ 35-42-2-1(c)(1); -

      (g)(2).


[2]   We affirm.


                                                    ISSUE
[3]   Sapp presents the court with one issue, which we restate as: Whether the trial

      court abused its discretion when it failed to identify certain proposed mitigating

      circumstances.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 19, 2019, Sapp telephoned Sterling Riggs (Riggs) purportedly to

      arrange for the purchase of $50 worth of marijuana. Riggs was not acquainted

      with Sapp but agreed to sell him the marijuana. Around 7:30 p.m., Riggs drove

      his van to an address Sapp provided to him at an apartment complex located on

      the west side of Indianapolis. Riggs parked his van when he spotted Sapp.

      Riggs had brought a firearm with him which he placed on his lap.


[5]   Sapp climbed into the passenger-side seat of Riggs’ van. Another man

      accompanying Sapp remained outside the van. Sapp pointed a gun at Riggs

      and told Riggs he was there to rob him. Riggs and Sapp began to fight in the

      van. Riggs eventually fired a shot at Sapp, and the physical fighting continued.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 2 of 9
      Sapp was able to disarm Riggs. The man who had accompanied Sapp picked

      up Riggs’ gun and shot him in the leg. Riggs and Sapp continued to fight, with

      Sapp getting the upper hand and Riggs’ gun. Sapp threatened to kill Riggs if he

      did not let him take the van. Riggs directed Sapp to take the van, but Sapp fired

      additional shots at Riggs, wounding him in the leg, hip, and arm. Sapp then

      fled in Riggs’ van.


[6]   Riggs was taken to the hospital where he was treated for his injuries, including

      a shattered leg bone. Riggs supplied investigators with the cellphone number

      Sapp had used to arrange the marijuana deal, and the cellphone number was

      quickly linked to Sapp. Riggs subsequently identified Sapp from a

      photographic array. Sapp was located and interviewed by police. Initially, he

      denied being at the scene of the offenses. After further questioning, Sapp

      admitted he had been present but claimed that Riggs had pulled a gun on him

      and that he had acted in self-defense.


[7]   On July 9, 2019, the State filed an Information, charging Sapp with Level 3

      felony armed robbery; Level 4 felony unlawful possession of a firearm by a

      serious violent felon; and Level 5 felony battery by means of a deadly weapon.

      On January 15, 2020, the trial court convened Sapp’s one-day jury trial. The

      jury found Sapp guilty of all charges. After the jury had rendered its verdicts,

      the trial court granted the State’s motion to dismiss the Level 4 felony

      possession of a firearm by a serious violent felon charge.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 3 of 9
[8]    On February 4, 2020, Sapp’s presentence investigation report (PSI) was filed

       with the trial court. In 2013, Sapp was convicted of Class B felony robbery, for

       which he received a seven-year sentence, with 190 days executed and one year

       suspended to probation. Sapp began his probation on September 26, 2016, and,

       on March 20, 2017, the State filed a notice of violation of probation for failing

       to submit to a drug screen, testing positive for cannabinoids, and failing to

       comply with substance abuse treatment. Sapp’s probation was revoked, and

       Sapp was sentenced to 180 days. After his release, Sapp was charged with

       criminal trespass and marijuana possession in 2019, and was later convicted of

       Class A misdemeanor possession of a controlled substance in a separate case.


[9]    Sapp reported to his PSI investigator that he began consuming marijuana at the

       age of thirteen and alcohol at the age of sixteen. By the time of his arrest on the

       instant offense, Sapp reported that he was smoking marijuana daily and had

       become addicted to “rollers,” which is a combination of cocaine,

       methamphetamine, and ecstasy. (Appellant’s App. Vol. II, p. 146). Sapp

       denied using heroin or prescription medications.


[10]   Sapp’s PSI also revealed that he had never been in special education classes and

       graduated from high school in 2010 with a 2.8 G.P.A. Sapp also played on his

       high school’s basketball team. From the age of fifteen to nineteen, Sapp worked

       in a fast food restaurant, and he continued to work in restaurants after he was

       released from incarceration in 2018. Sapp rated his physical and mental health

       as “fair.” (Appellant’s App. Vol. II, p. 146). Sapp reported being assaulted in

       high school and having a seizure which resulted in his hospitalization. He was

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 4 of 9
       treated and released after two days. Sapp also reported having anger

       management issues and depression during high school, and he participated in

       anger management counseling in 2007 or 2008. Sapp had never been

       prescribed any medication for his mental health.


[11]   On February 25, 2020, the trial court held Sapp’s sentencing hearing. Sapp

       filed a sentencing memorandum prepared by a Social Services Administrator

       employed by the Marion County Public Defender Agency in which Sapp’s

       substance abuse disorder, remorse, traumatic brain injury, and undue hardship

       to his children were advanced as mitigating circumstances. In the unverified

       sentencing memorandum, it was represented to the trial court that Sapp had

       been taking opioids daily and that he had experienced withdrawal in jail. The

       sentencing memorandum also asserted that Sapp had experienced a traumatic

       brain injury in 2006 and that such injuries may lead to aggressive behavior.


[12]   At Sapp’s sentencing hearing, Riggs’ impact statement was read into the record.

       To Riggs the offenses were “a life changing experience” which had left him

       unable to walk without assistance, unable to work, and in constant pain.

       (Transcript p. 240). Riggs faced another surgery to attempt to rectify the

       injuries to his leg. In his allocution, Sapp apologized to Riggs and asked the

       trial court for leniency. The trial court found as an aggravating circumstance

       that Sapp had shot Riggs four times without justification, even when Riggs was

       on the ground. The trial court also found Sapp’s criminal record since his

       recent release from the Department of Correction to be aggravating, including

       his two arrests, conviction for possession of a controlled substance, and his

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 5 of 9
       separate pending case for unlawful possession of a firearm by a serious violent

       felon. The trial court found as the sole mitigating circumstance that long-term

       imprisonment would be a hardship to Sapp’s dependents. The trial court found

       that the aggravating circumstances outweighed the mitigating circumstances

       and sentenced Sapp to ten years, with one year suspended to probation, for his

       Level 3 felony armed robbery conviction. The trial court sentenced Sapp to

       three years for his Level 5 felony battery by means of a deadly weapon

       conviction, to be served concurrently, for an aggregate sentence of ten years.


[13]   Sapp now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[14]   Sapp contends that the trial court abused its discretion when it failed to

       recognize his additional proffered mitigators. So long as a sentence imposed by

       a trial court is within the statutory range for the offense, it is subject to review

       only for an abuse of discretion. Anglemyer v. State, 

868 N.E.2d 482

, 490 (Ind.

       2007), clarified on reh’g, 

875 N.E.2d 218

(Ind. 2007). An abuse of the trial

       court’s sentencing discretion occurs if its decision is clearly against the logic and

       effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom.

Id. A trial court

abuses

       its discretion when it fails to enter a sentencing statement at all, its stated

       reasons for imposing sentence are not supported by the record, its sentencing

       statement omits reasons that are clearly supported by the record and advanced


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 6 of 9
       for consideration, or its reasons for imposing sentence are improper as a matter

       of law.

Id. at 490-91. II.

Mitigating Circumstances

[15]   Sapp contends that the trial court abused its discretion when it failed to

       recognize his substance abuse, remorse, and traumatic brain injury as

       mitigating circumstances. “An allegation that the trial court failed to identify or

       find a mitigating factor requires the defendant to establish that the mitigating

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

Id. at 493.

       However, if a trial court does not recognize a mitigating circumstance that was

       advanced for its consideration, it is not obligated to explain why it did not

       recognize the proffered mitigator.

Id. [16]

  Sapp argues that his long history of a “substance abuse disorder” consisting of

       alcohol, marijuana, and opioid abuse was a mitigating circumstance improperly

       overlooked by the trial court. (Appellant’s Br. p. 11). However, in his

       sentencing memorandum and argument at the sentencing hearing, Sapp only

       mentioned his alleged opioid abuse. In his PSI, Sapp explicitly “denied the use

       of heroin and prescription medications.” (Appellant’s App. Vol. II, p. 147).

       The only information before the trial court regarding Sapp’s alleged opioid

       abuse were the unverified statements contained in his sentencing memorandum

       and the argument of his counsel, which were not evidence. Therefore, Sapp’s

       substance abuse, as argued at sentencing, was not clearly supported by the

       record, and we cannot conclude that the trial court abused its discretion in

       failing to recognize it as a mitigator. See 

Anglemyer, 868 N.E.2d at 493

.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 7 of 9
[17]   As to his expressions of remorse, it has long been established that the trial court

       is in the best position to evaluate the importance of such evidence for

       sentencing. See, e.g., Gibson v. State, 

856 N.E.2d 142

, 148 (Ind. Ct. App. 2006)

       (“Remorse, or lack thereof, by a defendant often is something that is better

       gauged by a trial judge who views and hears a defendant’s apology and

       demeanor first hand and determines the defendant’s credibility.”). Like other

       credibility determinations, absent some evidence of impermissible consideration

       by the trial court, we do not reweigh a trial court’s assessment of a defendant’s

       expressions of remorse. Pickens v. State, 

767 N.E.2d 530

, 535 (Ind. 2002). Here,

       the trial court heard Sapp’s allocution in which he expressed his remorse and

       apologized to Riggs. The trial court was not persuaded, and we will not

       second-guess its assessment.

Id. [18]

  Neither can we conclude that the trial court abused its discretion when it failed

       to find Sapp’s traumatic brain injury as a mitigating circumstance. In his PSI

       Sapp reported having experienced an injury and a seizure when he was in high

       school, but he did not characterize it as a brain injury, traumatic or otherwise.

       Again, the only references to a traumatic brain injury in the record were the

       unverified statements contained in Sapp’s sentencing memorandum and the

       argument of his counsel, neither of which were evidence. Therefore, this factor

       was not clearly supported by the record, and the trial court did not abuse its

       discretion in declining to find it as a mitigating circumstance. See 

Anglemyer, 868 N.E.2d at 493

.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 8 of 9
[19]   In addition, the mitigating weight accorded to a defendant’s mental impairment

       depends on, among other things, how it limits a defendant’s overall functioning

       and the extent of any nexus between the impairment and the commission of the

       crime. Smith v. State, 

929 N.E.2d 255

, 259 (Ind. Ct. App. 2010), trans. denied.

       Here, Sapp who characterized his health as “fair,” reported graduating from

       high school, fairly regular employment, and no need for medication, which

       indicates that, even if it had been clearly established that he had a traumatic

       brain injury, the injury did not significantly impact his overall functioning.

       (Appellant’s App. Vol. II, p. 146). Sapp placed no actual evidence before the

       trial court that a traumatic brain injury had anything to do with the commission

       of the instant offense. Given the lack of evidence that his alleged traumatic

       brain injury impacted his functioning or had a nexus with the offenses, the trial

       court did not abuse its discretion in failing to find it significant for sentencing.

       See

id. (finding no abuse

of the trial court’s sentencing discretion where Smith

       failed to show his diminished mental capacity limited his ability to function or

       had a nexus with the crime).


                                             CONCLUSION
[20]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it declined to accord mitigating weight to three of Sapp’s

       proffered mitigators.


[21]   Affirmed.


[22]   May, J. and Altice, J. concur

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-638 | October 15, 2020   Page 9 of 9

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