Rudy L. Space v. State of Indiana (mem. dec.)

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                          Oct 14 2020, 8:31 am
court except for the purpose of establishing
the defense of res judicata, collateral                                            Indiana Supreme Court
                                                                                      Court of Appeals
estoppel, or the law of the case.                                                       and Tax Court

Arturo Rodriguez II                                      Curtis T. Hill, Jr.
Rodriguez Law, P.C.                                      Attorney General
Lafayette, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana

                                           IN THE

Rudy L. Space,                                           October 14, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
        v.                                               Appeal from the
                                                         Warren Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Hunter J. Reece, Judge
                                                         Trial Court Cause No.

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020                   Page 1 of 7
                                          Case Summary
[1]   Rudy Space pled guilty to Level 6 felony identity deception and being a

      habitual offender, and the trial court sentenced him to two years for the felony

      enhanced by two years for being a habitual offender. Space now appeals his

      sentence, arguing it is inappropriate. We affirm.

                            Facts and Procedural History
[2]   On September 13, 2019, an Indiana State Police trooper came upon a disabled

      car and two men along the side of a road in Warren County. The trooper

      stopped to help and asked the men “for identification.” Appellant’s App. Vol. II

      p. 10. Neither man had an identification card. However, one man verbally

      identified himself as Anthony Jennings and provided a date of birth. The other

      man—the defendant in this case, Rudy Space—verbally identified himself as

      “Roger Space” but hesitated before providing a date of birth and couldn’t

      provide a social-security number. The trooper ran the name “Roger Space” and

      the birthday given but “was unable to get a return.”

Id. Space admitted he


      given his cousin’s first name because he thought there was a warrant for his

      arrest. He then provided his correct name, date of birth, and social-security


[3]   The State charged Space with Level 6 felony identity deception and being a

      habitual offender. On September 16, Space was released on his own

      recognizance subject to numerous pretrial conditions, including that he attend

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020   Page 2 of 7
      all court hearings and “[m]aintain good and lawful behavior.”

Id. at 12.


      however, failed to appear at hearings in October and November. After the

      second failure to appear, a warrant was issued for Space’s arrest in November

      2019. Also in November 2019, Space was charged with felony sex-offender-

      registry violation in Illinois. He pled guilty to that offense in December 2019

      and was sentenced to 180 days executed and three years of probation.

Id. at 32.

      Space was then arrested on the outstanding warrant in this case in January

      2020. In March 2020, Space and the State entered into a plea agreement under

      which Space agreed to plead guilty as charged. According to the plea


              [A]ny executed sentence shall not exceed four and one-half (4
              1/2) years. Any sentence in excess of four and one-half (4 1/2)
              years shall be required to be suspended. The Defendant shall be
              sentenced as deemed appropriate by the Court.

Id. at 24. [4]

  At the sentencing hearing, evidence was presented about Space’s “significant”

      criminal history. Tr. pp. 9, 17. Specifically, Space had eight felony convictions

      and one misdemeanor conviction (domestic battery) when he committed the

      offense in this case. According to the PSI, the eight felony convictions include

      two convictions for possession of a controlled substance in 2001 (Illinois),

      aggravated criminal sexual abuse in 2011 (Illinois), a federal conviction for

      conspiracy to commit robbery in 2014, and four convictions for failure to report

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020   Page 3 of 7
      weekly/no fixed address in 2018 (Illinois).1 For these convictions, Space has

      spent time in both state and federal prison. In addition, Space has violated his

      probation several times, including in the federal case. The State recommended a

      sentence of eight years with four-and-a-half years executed, and Space asked for

      the minimum sentence of two-and-a-half years. The trial court found two

      aggravators: (1) Space’s criminal history and (2) his “recent[] violat[ion] [of]

      conditions of probation, parole, pardon, community corrections or pretrial

      release.” Appellant’s App. Vol. II p. 39. The court found one mitigator: Space’s

      guilty plea. The court sentenced Space to two years enhanced by two years for

      being a habitual offender, all executed. The court recommended Therapeutic

      Community and said if Space completed the program, it would consider a

      modification of his sentence.

[5]   Space now appeals his sentence.

                                  Discussion and Decision
[6]   Space contends his four-year sentence is inappropriate and asks us to revise it to

      three years with one year suspended under Indiana Appellate Rule 7(B), which

      provides that an appellate court “may revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, the court finds that the

        At the sentencing hearing, Space argued he had only four prior felony convictions. Specifically, he claimed
      he had only one conviction for failure to report weekly/no fixed address instead of four and that he had only
      one conviction for possession of a controlled substance instead of two. Even if Space had only four prior
      felony convictions, our result would be the same.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020                  Page 4 of 7
      sentence is inappropriate in light of the nature of the offense and the character

      of the offender.” “Whether a sentence is inappropriate ultimately turns on the

      culpability of the defendant, the severity of the crime, the damage done to

      others, and a myriad of other factors that come to light in a given case.”

      Thompson v. State, 

5 N.E.3d 383

, 391 (Ind. Ct. App. 2014) (citing Cardwell v.


895 N.E.2d 1219

, 1224 (Ind. 2008)). Because we generally defer to the

      judgment of trial courts in sentencing matters, defendants must persuade us that

      their sentences are inappropriate. Schaaf v. State, 

54 N.E.3d 1041

, 1044-45 (Ind.

      Ct. App. 2016).

[7]   A person who commits a Level 6 felony shall be imprisoned for a fixed term of

      between six months and two-and-a-half years, with an advisory sentence of one

      year. Ind. Code § 35-50-2-7(b). “The court shall sentence a person found to be a

      habitual offender to an additional fixed term that is between . . . two (2) years

      and six (6) years, for a person convicted of a Level 5 or Level 6 felony.” Ind.

      Code § 35-50-2-8(i). However, the plea agreement capped the executed portion

      of the sentence at four-and-a-half years. The trial court sentenced Space to an

      above-advisory term of two years enhanced by the minimum term of two years

      for being a habitual offender, resulting in a four-year executed sentence.

[8]   We agree with Space that “[t]here are no egregious facts or actions” in this case.

      Appellant’s Br. p. 10. When a police officer stopped to help Space, he gave his

      cousin’s first name but then provided his name shortly thereafter.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020   Page 5 of 7
[9]    Space’s character, however, supports his four-year executed sentence. It is true

       Space pled guilty and was employed when he committed the offense in this

       case. However, he has a “significant criminal history.” Tr. p. 17. Although

       three of Space’s felony convictions were used to support his habitual-offender

       enhancement (possession of a controlled substance, aggravated criminal sexual

       abuse, and conspiracy to commit robbery), he has other felony convictions plus

       a misdemeanor conviction for domestic battery. In addition, Space has served

       time in both state and federal prison and has violated his probation on several

       occasions. Notably, while he was on pretrial release in this case, he failed to

       appear at two hearings and was charged with and pled guilty to a felony—his

       ninth—in Illinois. Despite being given numerous opportunities to reform, Space

       has repeatedly demonstrated that he will not.

[10]   Nevertheless, Space claims “[i]ncarceration should not have been the answer to

       address his problems”; rather, he “needs treatment to address his longstanding

       substance abuse issues.” Appellant’s Br. p. 12. Although the PSI notes that

       Space abused alcohol and marijuana, Space presented no evidence of his

       substance-abuse issues at the sentencing hearing. Moreover, the trial court said

       it would consider a modification of Space’s sentence if he completed

       Therapeutic Community. Space has failed to persuade us that his four-year

       executed sentence—with the chance of having it modified—is inappropriate.

       We therefore affirm the trial court.

[11]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020   Page 6 of 7
Bailey, J., and Weissmann, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1115 | October 14, 2020   Page 7 of 7
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