Court of Appeals of Indiana | Memorandum Decision 38A02-1404-CR-223 | January 30, 2015 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mark A. Delgado

Monticello, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph Pohl,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 30, 2015

Court of Appeals Cause No.

38A02-1404-CR-223

Appeal from the Jay Circuit Court

Pyle, Judge
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Statement of the Case

[1] Joseph Pohl (“Pohl”) appeals his sentence, after a jury trial, for his two 

convictions of Class B felony burglary1 and two convictions of Class D felony 

theft.2 On appeal, Pohl claims that the trial court abused its discretion by 

sentencing him to consecutive sentences that exceed what is allowed for as a 

single episode of criminal conduct. In addition, Pohl asserts that the trial 

court’s sentencing statement is inadequate and that it ignored his youthful age 

as a mitigating circumstance. He also argues that his sentence is inappropriate. 

Concluding that the trial court did not abuse its discretion in sentencing Pohl, 

and that Pohl waived his argument under Indiana Appellate Rule 7(B), we 

affirm his sentence.

[2] We affirm.

Issues

[3] 1. Whether the trial court abused its discretion in sentencing Pohl.

[4] 2. Whether Pohl’s sentence is inappropriate under Indiana Appellate Rule 7(B).

 

1

IND. CODE § 35-43-2-1. We note that, effective July 1, 2014, a new version of this burglary statute was 

enacted and that Class B felony burglary is now a Level 4 felony. Because Pohl committed his crimes in 

2013, we will apply the statute in effect at that time.

2

IND. CODE § 35-43-4-2. Again, effective July 1, 2014, a new version of this theft statute was enacted, and 

Class D felony theft is now a Class A misdemeanor. We will apply the statute in effect at the time of Pohl’s 

crimes.
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Facts

[5] Pohl lived in Dunkirk next door to Barbara Irelan (“Irelan”). Irelan 

occasionally paid Pohl to cut her grass, trim her hedges, and shovel her snow. 

On June 6, 2013, Irelan went to Indianapolis for an Elk’s convention. Irelan 

locked the doors to her home when she left, but she left a window open on the 

front of her house.

[6] On the day that Irelan left for Indianapolis, Pohl and his girlfriend, Kassandra 

Workman (“Workman”), were sitting on his back porch. Pohl decided to try 

and break into Irelan’s car, but it was locked. Pohl then remembered that Irelan 

was out of town, and he told Workman that he was going to try to break into 

Irelan’s house. Pohl did break into the house and stole a bottle of vodka.

[7] The next evening, Workman was at a friend’s house, and Pohl came over with 

the bottle of vodka. He said that he had taken the vodka from Irelan’s house, 

which he had entered through the front window. After drinking the vodka, 

Pohl and Workman decided to break into Irelan’s house “[j]ust to look around, 

[and] see what [they] could get.” (Tr. 61). They opened Irelan’s front door, 

went inside, and took coins and a handgun.

[8] Pohl and Workman took the items to Alex Blankenship’s (“Blankenship”) 

house. They asked Blankenship if he could help them sell the gun. 

Blankenship took the gun and sold it to his step-father, Larry Kelly, for $50. 

Pohl and Workman then took the coins to a machine at Wal-Mart to exchange 

for cash. They used the cash to buy narcotics.
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[9] When Irelan returned to her home, she found the front door ajar. The window 

screen had “a ripple in it showing that [] something had happened to it” (Tr. 23-

24). She noted that a bottle of vodka, loose and rolled coins, a handgun, tie 

tacks, and jewelry were missing. 

[10] On August 2, 2013, the State charged Pohl with two counts of burglary and two 

counts of theft. A jury trial was held on February 3, 2014, and the jury found 

Pohl guilty as charged. At the sentencing hearing, the trial court stated the 

following reasons for imposing its sentence:

Alright [sic] the court is required to make a reasonably detailed 

sentencing statement to explain to you, those persons present and 

perhaps a reviewing court . . . the basis for the sentence that I’m about 

to impose. 

* * * * *

As far as aggravating circumstances, the court finds as follows, you 

have a healthy history of criminal activity. You have a juvenile 

adjudication. You have recently violated conditions of probation. 

You have recently violated conditions of parole. While awaiting trial 

in this matter, you violated jail rules resulting in good time or loss of 

good time credit of thirty days. Furthermore, the victim of your 

offense was over 65 years of age. Each of those are aggravating 

circumstances. As far as mitigation, the court finds that your 

specialized [safety] issues require some consideration. The quote, 

quite honestly you-I am not going to find that imprisonment is going 

to result in undue hardship to you. You have been to one prison and 

somehow in your mind you are now a target for everybody in the 

Department of Correction. I don’t buy it. I think it’s another 

unsuccessful attempt at manipulating your sentence. The aggravating 

circumstances in your particular case far outweigh the mitigating 

circumstances[.]
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[11] (Sent. Tr. 24). The trial court sentenced Pohl to fifteen (15) years for each 

burglary conviction and thirty (30) months on each theft conviction. The court 

ordered Pohl to serve the burglary convictions consecutive to one another, but 

the theft convictions were to be served concurrently with each other and the 

burglary convictions. The total sentence imposed was an executed term of 

thirty (30) years in the Department of Correction. Pohl now appeals.

Decision

[12] On appeal, Pohl argues that the trial court abused its discretion in three ways. 

First, because the crimes were a single episode of criminal conduct, he claims 

that the consecutive sentence imposed by the trial court exceeded the amount 

allowed by statute. In addition, he claims that the trial court’s sentencing 

statement is inadequate in that “it merely states aggravating factors and a 

mitigating fact followed by conjecture.” (Pohl’s Br. 6). Finally, he asserts that 

the trial court abused its discretion by failing to consider his youthful age as a 

mitigating circumstance. Furthermore, Pohl argues that his sentence is 

inappropriate. We address each of his claims in turn.

1. Abuse of Discretion

a. Single Episode of Criminal Conduct

[13] We first address Pohl’s claim regarding his consecutive sentences. Generally, a 

trial court cannot impose consecutive sentences without express statutory 

authority. Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014). A sentence 

that is contrary to or in violation of a statute is illegal because it is without 
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statutory authorization. Id. We review a claim of sentencing error for an abuse 

of discretion, and reversal is only warranted when there has been a manifest 

abuse of discretion. Id. 

[14] When a trial court orders a defendant to serve consecutive sentences for 

multiple felony convictions, the trial court must comply with INDIANA CODE § 

35-50-1-2(c), which provides the following:

. . . , except for crimes of violence, the total of the consecutive terms of 

imprisonment, . . . to which the defendant is sentenced for felony 

convictions arising out of an episode of criminal conduct shall not 

exceed the advisory sentence for a felony which is one (1) class higher 

than the most serious of the felonies for which the person has been 

convicted.

[15] (emphasis added). The State argues that pursuant to IND. CODE § 35-50-1-

2(a), Pohl’s burglary convictions are crimes of violence. Burglary as a class B 

felony is among the listed offenses considered a crime of violence. IND. 

CODE § 35-50-1-2(a)(13). Thus, even if the burglaries were a single episode of 

criminal conduct, the limit on the term of imprisonment, by statute, would not 

apply. Therefore, the trial court did not abuse its discretion in sentencing Pohl 

to consecutive terms.

b. Inadequate Sentencing Statement & Mitigating Circumstances

[16] Pohl argues that the trial court further abused its discretion by making an 

inadequate sentencing statement and overlooking his youthful age as a 

mitigating circumstance.
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[17] Notwithstanding the authority afforded to appellate courts by Indiana Appellate 

Rule 7(B), “sentencing decisions rest within the sound discretion of the trial 

court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. 

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 

N.E.2d 218 (Ind. 2007). 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.” K.S. v. 

State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637, 

640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in sentencing a 

defendant by: (1) failing to enter a sentencing statement; (2) entering a 

sentencing statement that explains reasons for imposing the sentence but the 

record does not support the reasons; (3) omitting reasons that are clearly 

supported by the record and advanced for consideration; or (4) imposing a 

sentence for reasons that are improper as a matter of law. Anglemyer, 868 

N.E.2d at 490. 

[18] In this case, Pohl essentially argues that the trial court failed to properly 

“weigh” the aggravating and mitigating circumstances. However, “[b]ecause 

the trial court no longer has any obligation to ‘weigh’ aggravating and 

mitigating factors against each other when imposing a sentence, unlike the preBlakely statutory regime, a trial court cannot now be said to have abused its 

discretion in failing to ‘properly weigh’ such factors.” Id. at 491 (quoting 

Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000)). “Where a trial court imposes 

sentence for a felony offense it is required to issue a sentencing statement that 
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includes a reasonably detailed recitation of the trial court’s reasons for the 

sentence imposed.” Anglemyer, 868 N.E.2d at 481. In order for an appellate 

court to perform a meaningful review of a trial court’s sentencing statement, we 

must be informed of the trial court’s reason for imposing the sentence, and this 

necessarily requires a statement of fact, in some detail which, are peculiar to the 

particular defendant and the crime, as opposed to general impressions or 

conclusions. Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2007). 

[19] Here, the trial court outlined the aggravating and mitigating circumstances 

particular to Pohl and his crimes. The trial court took note of his significant 

criminal history and the fact that he had victimized an elderly neighbor. In 

addition, the trial court took into consideration Pohl’s alleged safety concerns if 

he returned to the Department of Correction. As a result, the trial court did not 

abuse its discretion because the sentencing statement and the record before us 

are sufficient to conduct a meaningful review.

[20] Next, Pohl argues that the trial court erroneously failed to consider his young 

age as a mitigating factor. However, Pohl did not raise his age as a mitigator 

during the sentencing hearing. A trial court does not abuse its discretion in 

failing to consider a mitigating factor that was not raised at sentencing. 

Anglemyer, 868 N.E. 2d at 492 (citing Georgopulos v. State, 735 N.E2d 1138, 1145 

(Ind. 2000)).

3

 “[I]f the defendant fails to advance a mitigating circumstance at 

 

3 On rehearing, the Supreme Court clarified that “a defendant who pleads guilty does not forfeit the 

opportunity to claim on appeal that the trial court should have considered his guilty plea a mitigating 
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sentencing, this court will presume that the factor is not significant, and the 

defendant is precluded from advancing it as a mitigating circumstance for the 

first time on appeal.” Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 

2006). Accordingly, he is precluded from doing so here. 

2. Inappropriate Sentence

[21] Finally, Pohl argues that his sentence is inappropriate. Rule 7(B) of the Indiana 

Rules of Appellate Procedure provides that “[t]he 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.” However, Pohl makes no argument 

showing how the trial court’s sentence is inappropriate based upon this 

standard. In addition, our supreme court held in Anglemyer that abuse of 

discretion and inappropriate sentence claims are to be analyzed separately. 

Anglemyer, 868 N.E.2d at 491; see also King v. State, 894 N.E.2d 265, 267 (Ind. 

Ct. App. 2008) (observing that “an inappropriate sentence analysis does not 

involve an argument that the trial court abused its discretion in sentencing the 

defendant”). Pohl cited Anglemyer in support of his inappropriate sentence 

claim. Yet, he still failed to separately argue his abuse of discretion and 7(B) 

 

circumstance even though the defendant failed to assert this claim at sentencing.” Anglemyer, 875 N.E.2d at 

219.
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claims.4 Accordingly, Pohl’s argument that his sentence is inappropriate is 

waived. See Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008); Ind. 

Appellate Rule 46(A)(8)(a); see also Smith v. State, 822 N.E.2d 193, 202-203 (Ind. 

Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where 

the party fails to develop a cogent argument or provide adequate citation to 

authority and portions of the record.”), trans. denied. 

[22] Affirmed.

[23] Najam, J., and Bailey, J., concur. 

 

4

Pohl also cited our supreme court’s decision in Reid v. State, 876 N.E.2d 1114, where the Court, pursuant to 

Indiana Appellate Rule 7(B), revised a maximum sentence on a conspiracy to commit murder conviction. 

Nevertheless, Pohl still made no argument regarding the nature of this offense and his character.