SOBCZAK v. STATE (2023)

MEMORANDUM DECISION

Case Summary

[1] Arnold Lawrence Sobczak, Jr., appeals the sentence imposed by the trial court following his guilty plea to level 5 felony stalking. He contends that the trial court abused its discretion when considering aggravating factors during sentencing. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] In May 2021, Sobczak's wife, Colleen, was granted a protective order prohibiting Sobczak from contacting her or “going to where [she] may be located.” Appellant's App. Vol. 2 at 77. Sobczak had actual notice of the order, which remained in effect until May 2023. In June 2022, Sobczak's daughter, Carsyn, was also granted a protective order prohibiting him from contacting her or “going to where [she] may be located.” Id. Sobczak had actual notice of the order, which remains in effect until June 2024.

[3] On July 2, 2022, Sobczak sent Colleen three separate mobile banking transactions using the banking payment network Zelle. The first transaction was in the amount of $4.07, which corresponds to Carsyn's birthday of April 7th. The second transaction was in the amount of $11.16, which corresponds to Colleen's birthday of November 16th. The third transaction was for $500 and included a memo stating, “Colleen Carsyn would like to see Carsyn have a graduation party for her.” Id. at 76.

[4] On September 10 and 12, 2022, Sobczak went to Carsyn's place of work in Schererville and waited for her outside in his black pickup truck. On September 11, Sobczak followed Colleen in that same truck through the streets of Munster. On September 14, Carsyn observed Sobczak in that truck parked outside her home, and then he followed her to work. On September 15, Sobczak again followed Colleen through the streets of Munster. On September 20, Sobczak was seen by Carsyn standing outside her home at 4:53 a.m.

[5] The State charged Sobczak with three counts of level 5 felony stalking, one count of level 6 felony stalking, two counts of class A misdemeanor invasion of privacy, and one count of class B misdemeanor harassment. On January 10, 2023, the parties entered into a plea agreement in which Sobczak agreed to plead guilty to one count of level 5 felony stalking in exchange for dismissal of the other counts as well as numerous other unrelated charges under different cause numbers. Sentencing was left to the trial court's discretion. Following a hearing, the trial court imposed a four-year executed sentence. This appeal ensued.

Discussion and Decision

[6] Sobczak contends that the trial court abused its discretion during sentencing. In general, “sentencing decisions are left to the sound discretion of the trial court, and we review the trial court's decision only for an abuse of this discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied (2016). “An abuse of discretion occurs if the 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (quotation marks omitted), clarified on reh'g, 875 N.E.2d 218. A trial court may abuse its discretion by: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law. Id. at 490-91.

[7] During sentencing, the trial court found four aggravating factors and one mitigating factor and sentenced Sobczak to four years, which is one year above the advisory sentence for a level 5 felony. Ind. Code § 35-50-2-6(b). Sobczak challenges all four of the aggravating factors found by the court as being unsupported by the record or improper as a matter of law. We will address the factors in turn.

[8] Sobczak first asserts that the trial court abused its discretion in considering the fact that he violated the conditions of his pretrial release in an unrelated case as an aggravating factor. Sobczak concedes that the trial court may consider uncharged misconduct and/or allegations of prior criminal activity not reduced to conviction when enhancing a sentence. See Chastain v. State, 165 N.E.3d 589, 599 (Ind. Ct. App. 2021) (finding that trial court did not abuse its discretion in considering uncharged allegations during sentencing), trans. denied. Nevertheless, he asserts that his violation of his pretrial release was part of a contempt charge that was dismissed pursuant to his plea agreement, and therefore the court's finding of that aggravating factor improperly “penalizes” him for dismissed conduct. Appellant's Br. at 9. Indiana courts have long recognized that “a defendant receives the full benefit of his [plea] bargain when multiple charges are dismissed in accordance with the agreement.” Sexton v. State, 968 N.E.2d 837, 841 (Ind. Ct. App. 2012), trans. denied. In clarifying how a guilty plea affects the consideration of aggravating factors during sentencing, our supreme court has held that unless a plea agreement contains language foreclosing the possibility of the trial court using evidence in aggravation relating to the underlying charges that were dismissed, the trial court need not “turn a blind eye” to such evidence and “may consider all evidence properly before [it].” Bethea v. State, 983 N.E.2d 1134, 1145-46 (Ind. 2013). It is undisputed that the plea agreement here contains no such limiting language. The trial court did not abuse its discretion in considering Sobczak's violation of the conditions of his pretrial release in an unrelated case as an aggravating factor.

[9] Sobczak next asserts that the trial court's reliance on the nature and circumstances of the crime as an aggravating factor was improper as a matter of law. While a “trial court may not use a material element of the offense as an aggravating factor,” it “may find the nature and particularized circumstances surrounding the offense to be an aggravating factor.” Gober v. State, 163 N.E.3d 347, 354 (Ind. Ct. App. 2021), trans. denied. To enhance a sentence using the nature and circumstances of the crime, the trial court must detail why the defendant deserves an enhanced sentence under the particular circumstances. Weaver v. State, 189 N.E.3d 1128, 1135 (Ind. Ct. App. 2022), trans. denied.

[10] Sobczak pled guilty to one count of stalking, which is defined as “a knowing or intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.” Ind. Code § 35-45-10-1. The offense is a level 5 felony if “a protective order to prevent domestic or family violence, a no contact order, or other judicial order ․ has been issued by the court to protect the same victim or victims from the person and the person has been given actual notice of the order.” Ind. Code § 35-45-10-5(b)(2). “ ‘[H]arassment’ means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Ind. Code § 35-45-10-2.

[11] Considering the particularized circumstances surrounding Sobczak's offense, including his admission to engaging in at least nine separate acts of harassment against his victims, the trial court explained that Sobczak committed “frightening and repeated intrusions” into Colleen's and Carsyn's lives in violation of the court's protective orders. Appellant's App. Vol. 2 at 85. Sobczak suggests that the trial court's consideration of his “repeated” acts was “nothing more than” the court improperly using an element of the offense as an aggravating factor. Appellant's Br. at 11. Contrary to his suggestion, it was entirely proper for the trial court to consider the sheer number of acts of harassment involved here as an aggravating factor. As noted above, the statute requires “repeated or continuing” harassment, and our supreme court has determined that the term “repeated” in Indiana's anti-stalking law simply means “more than once.” Nicholson v. State, 963 N.E.2d 1096, 1101 (Ind. 2012). Thus, any more than two acts of harassment would exceed the number necessary to sustain a conviction for the crime of stalking. The trial court did not abuse its discretion in finding the nature and particularized circumstances surrounding Sobczak's offense, which included nine acts of harassment, to be an aggravating factor.

[12] The third challenged aggravating factor is the trial court's consideration of the extreme harmful impact Sobczak's offense had on at least one of his victims, Colleen. Colleen testified that Sobczak's terrorizing behavior caused her to refrain from going out in public out of fear for her safety. She stated that she continues to have nightmares and suffers from post-traumatic stress disorder and panic attacks. She had cameras installed all over the inside and outside of her home, and she has felt “terrified” on a daily basis. Tr. Vol. 2 at 24. It is well established that the trial court is permitted to consider “the harm, injury or damage suffered by the victim” as an aggravating factor where it is “significant” and “greater than the elements necessary to prove the commission of the offense.” Ind. Code § 35-38-1-7.1(a)(1); see Gober, 163 N.E.3d at 354 (noting that the emotional and psychological effects of a crime are appropriate aggravating factors when the impact, harm, or trauma is greater than that usually associated with the crime). Sobczak has shown no abuse of discretion in this regard.

[13] Finally, the trial court found that Sobczak's disrespect for authority was an aggravating factor. Specifically, the trial court found that Sobczak had demonstrated “repeated disrespect for authority” by ignoring “multiple police officers, agencies and judicial officers who have directed him to refrain from contacting the victims to no avail.” Appellant's App. Vol. 2 at 85. Sobczak suggests that the only support for this aggravator came in the form of hearsay testimony or was relating to “orders and proceedings which were dismissed under the plea agreement[.]” Appellant's Br. at 13. Sobczak acknowledges that the strict rules of evidence do not apply in sentencing hearings and that hearsay evidence is admissible. Lisk v. State, 145 N.E.3d 838, 841 (Ind. Ct. App. 2020). Moreover, as we already stated, the plea agreement here contains no limiting language preventing the trial court from considering evidence in aggravation relating to the underlying charges that were dismissed. Bethea, 983 N.E.2d at 1145. The trial court properly considered all the evidence before it in finding Sobczak's disrespect for authority as an aggravating factor. We find no abuse of discretion and affirm the sentence imposed by the trial court.

[14] Affirmed.

Crone, Judge.

Brown, J., and Felix, J., concur.