Estate of Kotsovska v. Liebman

DAVID, Justice.

Daniel J. Moore, Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

DAVID, Justice.

William Parks was convicted of Class A felony dealing in methamphetamine and received an aggregate sentence of forty (40) years. Parks now asks this Court to evaluate the appropriateness of that sentence in light of the nature of the offense and his character under Indiana Appellate Rule 7(B). Reaffirming our authority and our reluctance to grant such a request, in this case our collective judgment has determined that a sentence revision is warranted.

On the morning of September 15, 2012, William Parks and Amanda Gentry went to the apartment of David Reeve. Parks told Gentry he planned to “try to cook” at the apartment, which Gentry understood to mean cook methamphetamine. (Tr. at 148.) While at Reeve's apartment, Gentry started smelling strong chemical odors coming from the back room. During the process of cooking, Reeve knocked over a container of chemicals. The chemical smell became significantly more intense, and the windows and doors were opened due to the smell. Jeffrey Deaton was also present at Reeve's apartment on September 15, 2012, during this time period.

Later that evening, Officer Kurt Sinks and Officer Scott Clark were dispatched to the apartment after receiving reports of a suspected methamphetamine lab. When Officer Sinks approached the apartment he saw the open door and windows and immediately smelled a strong odor coming from the apartment. Upon getting closer, Officer Sinks' nose and throat started burning, and he was uncertain whether it was safe to enter the premises. He saw Gentry and Deaton sitting inside, declined Gentry's offer to enter the apartment and instead requested that the two step outside to speak with him. Officer Sinks was informed that another individual was inside, at which point he called inside the apartment asking the individual to exit. The individual identified himself as Parks. Upon learning that the police were there due to a report of a suspected methamphetamine lab, Parks immediately denied that there were any drugs or a methamphetamine lab inside the apartment. Parks was eventually transported to police headquarters, where he waived his Miranda rights and was questioned by Officer Chad Robinson.

During the interview with Officer Robinson, Parks was calm and cooperative. Parks admitted to using and attempting to cook methamphetamine. Parks insisted that he wanted to be honest and expressed his regret in being involved in this incident. He explained that in two attempts to cook, he produced about three-quarters of a gram of methamphetamine each time.

The other officers returned to the apartment with a search warrant. The Indiana State Police methamphetamine team was also present processing the scene. Various items were collected from the scene, including: lithium batteries, various plastic containers, a black trash bag filled with additional plastic containers and funnels, a homemade smoking device, and coffee filters. Indiana State Police Trooper Brock Russell, who has extensive experience in investigating methamphetamine labs, concluded that methamphetamine had been manufactured using the one pot method.

On September 21, 2012, Parks was charged with: Count I, Class A felony conspiracy to commit dealing in methamphetamine; Count II, Class A felony dealing in methamphetamine; Count III, Class C felony illegal drug lab; Count IV, Class B felony possession of methamphetamine; and Count V, Class D felony possession of a syringe. The State dismissed Count V. The jury subsequently found Parks guilty on the remaining four counts and determined that the offenses occurred within one thousand (1,000) feet of a family housing complex. At sentencing Parks apologized for his actions and expressed regret for the hurt he had brought onto his family and community. He acknowledged that his drug addiction has continually caused problems in his life and hoped that he would be able to receive rehabilitation. Several members of Parks' family filed letters with the court in support of him.

The trial court found the following aggravating factors: Parks' criminal history as a juvenile and an adult; petitions to revoke probation; failed prior attempts to rehabilitate; and a history of substance abuse. The court also found mitigating factors, which consisted of: Parks' family support; cooperation with law enforcement; and the emotional support of his children. However, determining that the aggravating factors outweighed the mitigating factors, the trial court sentenced Parks to forty (40) years for the crime of Class A felony dealing in methamphetamine as charged in Count II. Counts I, III, and IV were merged into Count II. Of the forty-year sentence, twenty-six (26) years were to be executed in the Indiana Department of Correction, four (4) years were to be executed through Tippecanoe County Community Corrections, and ten (10) years of the sentence were suspended to probation, of which five (5) years were to be supervised probation and five (5) years were to be unsupervised.

Parks initially filed a pro se notice of appeal on June 24, 2013. Parks was appointed appellate counsel, and an amended notice of appeal was filed on August 12, 2013. Parks appealed his sentence under Indiana Appellate Rule 7(B), contending that his sentence was inappropriate given the nature of the offense and his character. The Court of Appeals analyzed the nature of the offense and Parks' character separately, and ultimately determined that the sentence imposed by the trial court was appropriate. Parks v. State, No. 79A04–1305–CR–259, 2014 WL 2154877 (Ind.Ct.App. May 22, 2014). This Court now grants Parks' petition to transfer and thereby vacates the Court of Appeals opinion. See Ind. Appellate Rule 58(A).

“Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind.2008). Under Indiana Appellate Rule 7(B), a reviewing court “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).

Indiana Appellate Rule 7(B) leaves much to the discretion of appellate courts, but it does not detract from the long-recognized principle that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. In conducting review under this standard, this Court has acknowledged that “reasonable minds may differ” on the appropriateness of a sentence based 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.” Buchanan v. State, 767 N.E.2d 967, 970 (Ind.2002) ; Cardwell, 895 N.E.2d at 1224. In light of this understanding, we reluctantly exercise our authority to revise Parks' sentence.

In our collective judgment, Parks' sentence is excessive. We believe a more appropriate sentence given the nature of the offense and the character of the defendant would be an aggregate sentence of thirty (30) years, with twenty (20) years to be executed at the Department of Correction, two (2) years to be executed through the Tippecanoe County Community Corrections, and eight (8) years to be suspended to probation, of which four (4) years Parks should be placed on supervised probation and four (4) years on unsupervised probation. This case is remanded to the trial court to impose a sentence of thirty (30) years for Count II dealing in methamphetamine to be served as stated.

RUSH, C.J., and RUCKER, J., concur.

DICKSON, J., dissents with separate opinion in which MASSA, J., joins.

DICKSON, Justice, dissenting.

I respectfully dissent, believing that the trial court's sentencing determination should be affirmed in this case.

The appellate authority to review and revise criminal sentences provided in Article 7, Section 4 of the Indiana Constitution is merely a permissive option. It is implemented by Indiana Appellate Rule 7(B), supported rather than undercut the jury's determination. Because the omission of these factors did not have the capacity to change the jury's determination, the error did not warrant reversal. Viscik, supra, 173 N.J. at 18, 800 A. 2d 826.

Additionally, the jury charge did not instruct the jury regarding the importance of whether decedent's work was an integral part of Liebman's business. This factor addresses a situation where the employer, who runs a business composed of two or more overlapping operations, subcontracts a portion of the work in furtherance of his or her core business. See 3 Larson, supra, § 62.02. Because Liebman did not run a business, let alone a complex business with multiple operations, this consideration does not apply.

The Appellate Division held that the trial court's failure to instruct the jury on the relative importance of the worker's economic dependence upon the employer was fatal because “decedent would appear to have been entirely economically dependent on Liebman.” Kotsovska, supra, 433 N.J.Super. at 548, 81 A. 3d 715. We agree that the degree of a worker's economic dependence upon an employer is an important consideration in workers' compensation disputes. See, e.g., D'Annunzio, supra,

192 N.J. at 122, 927 A. 2d 113 ; Caicco v. Toto Bros., Inc., 62 N.J. 305, 309, 301 A. 2d 143 (1973) ; Hannigan v. Goldfarb, 53 N.J.Super. 190, 205, 147 A. 2d 56 (App.Div.1958). However, this consideration was misapplied here.

A worker's economic dependence upon an employer is a factor to be considered when a worker performs a function that constitutes a part of the employer's business. See Re/Max of N.J.,

supra, 162 N.J. at 286, 744 A. 2d 154 (finding real-estate agents to be employees of real-estate brokers in part because “it is only the broker that can lawfully enforce a client's obligation to pay [the agent's] commission”). This consideration looks to whether the “decedent's labor was a cog in the wheel of [the employer's] operation as a subcontractor of [the employer] in as realistic a sense as the [work] being done by [the employer's] regular employees.” Caicco, supra, 62 N.J. at 310, 301 A. 2d 143. Further, “[t]he independence of [the worker] is not to be determined by looking at the [worker] or job alone, but by judging how independent, separate and public his [or her] business service is in relation to a particular employer.” Dee v. Excel Wood Prods. Co., 86 N.J.Super. 453, 460, 207 A. 2d 203 (App.Div.) (internal quotation marks and citation omitted), certif. denied, 44 N.J. 586, 210 A. 2d 628 (1965). Thus, this assessment is considered together with the factor addressing the integration of the employee's business with that of the employer's. See D'Annunzio, supra, 192 N.J. at 122–23, 927 A. 2d 113 (holding “the worker's economic dependence on the work relationship,” along with the other two considerations, is assessed under the twelve-part Pukowsky factor test).

Here, decedent lived with Liebman and drew most, if not all of her income from her employment as Liebman's caretaker. However, as previously noted, decedent's employment was not in furtherance of Liebman's business. Thus, considering the nature of decedent's employment, it was not reversible error to fail to include this consideration in the jury charge.

Finally, we address the Appellate Division's conclusion that the portion of the trial court's instruction explaining “that the lack of payroll deductions and payment in cash are factors weighing against a finding of employment was incomplete and misleading.” These factors have been “de-emphasized,” as the appellate panel method of payment are factors for the jury to consider.

In conclusion, “[a]lthough the charge could have been more artfully drafted,” Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 466, 744 A. 2d 1186 (2000), the charge “did not misinform the jury as to the controlling law and was neither ambiguous nor misleading,” R.B., supra, 183 N.J. at 325, 873 A. 2d 511. To the extent that it omitted relevant factors for consideration under the Pukowsky–D'Annunzio approach we now endorse, those factors inured to the benefit of petitioner, and therefore did not result in prejudice to Liebman. As such, we find that the charge, though flawed, does not warrant reversal.

VI.

Accordingly, we reverse the judgment of the Appellate Division, and reinstate the jury's verdict.

For reversal and reinstatement —Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ–VINA and SOLOMON —6.

Opposed —None.