(BEDFORD) - The Indiana Court of Appeals says Zane Payton's 12-year prison sentence was not inappropriate in light of the nature of the offense and the character of the offender.
Payton was found guilty by a Superior Court II jury of aiding in armed robbery, a Class B felony.
He was sentenced by Judge William Sleva to 12 years in prison, with 9 years executed in the Department of Correction and 3 years suspended to probation.
Payton appealed his conviction and sentence saying the court abused its discretion when it refused to instruct the jury of the Class C felony charge of robbery, a lesser offense. Payton's defense questioned if whether his accomplice used a deadly weapon during the alleged incident.
They also questioned whether Payton's twelve-year sentence is inappropriate in light of the nature of the offense and the character of the offender as well as whether the trial court abused its discretion when it ordered Payton to pay restitution to the victim.
At the time of the crime, Payton was 16-years-old when he and three other men who were attending a party on August 9, 2001 decided to rob the Clark Gas Station in Mitchell.
After changing their clothes and wearing masks, the group drove to the CVS drug store across from Ind. 37 from the Clark Station and parked their vehicle.
The four entered the gas station spoke to the attendant, Sujan Singh.
Matthew Green then physically restrained Singh, and was assisted by Tommy Jones. Jones was armed with a wooden club. The fourth individual, Joshua Turner, went to the counter with Payton, who then attempted to open the cash register by hitting several buttons. After the attempts failed, Payton and Turner took several cartons of cigarettes.
Singh was released unharmed and the group ran from the gas station.
After the robbery, Singh discovered that an envelope containing $600 in cash that was placed beneath the cash register was missing.
The gas station's video surveillance system recorded the robbery and provided police with the identity of Payton and his accomplices.
Lawrence County Police Officer Tyler Trueblood observed a speeding truck, and when he turned around to initiate a traffic stop, the truck speed up. Eventually the driver pulled the vehicle into a school parking lot and turned off its lights.
When Officer Trueblood turned his spotlight on the truck he noticed one of the people inside was wearing a hat matching that of the person who robbed the gas station.
When the officer approached the truck he noticed several packages of cigarettes on the floorboard. Another responding officer saw the club that had been used in the gas station robbery. Additional cartons of cigarettes were found in the truck bed and glove box.
Payton, who was a passenger in the truck, was taken in for questioning.
On August 11, 2011, Payton was charged with Class B felony armed robbery and faced a jury on September 18, 2012. Payton was convicted and was sentenced on October 13, 2012.
The court considered Payton's age as a mitigating circumstance and his substantial juvenile history as an aggravating circumstance.
He was ordered to pay $1,150 restitution.
The court ruled the club according to Indiana code was a deadly weapon. By code a deadly weapon is anything that can cause serious bodily injury and creates a substantial risk of death or that causes (l) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.
The Appeals Court ruled Payton's accomplice, Jones, was armed with a wooden rod similar in size to a police baton or nightstick. Mitchell Police Department Officer Matt England testified that, like a police baton, the wooden rod or club Jones carried in this case could be used to inflict serious bodily injury on a person.
Officer England stated that if a person was struck in the head with the club it would be considered a deadly weapon.
The fact that the club was not actually used to harm the gas station attendant is immaterial because Payton and his accomplices certainly had the ability to use the club to cause serious bodily injury. The court ruled "it does not matter if' actual injuries were sustained by the crime victim." Moreover, the club was certainly used to intimidate and cause fear. For these reasons, the court concluded that Sleva did not abuse his discretion when he refused to instruct the jury on the lesser offense of Class C robbery.
Payton argues that his 12 year sentence is inappropriate in light of the nature of the offense and the character of the offender. Payton also argues that his sentence is inappropriate because he "played a lesser role in the crime." The court ruled that Payton and his accomplices planned the crime and did so with the knowledge that Singh, the gas station attendant, kept cash in an envelope under the cash register.
Singh was physically restrained and feared for his safety. The court acknowledged that Payton was not armed with a weapon and did not actually restrain Singh. But while his accomplices were restraining Singh, Payton stole cash and cigarettes.
In addition, Payton argues that his sentence is inappropriate because he was only sixteen-years-old when he committed this crime, and was therefore "unable to fully appreciate the significance of his actions until events had already unfolded around him."
However, the court ruled Payton's prior contact with the criminal justice system contradicts his argument. On more than one occasion, Payton was adjudicated a delinquent child for committing acts that would be criminal offenses if committed by an adult, including battery and two incidents of criminal mischief. On the date of sentencing for the robbery, Payton had a pending delinquency petition for illegal consumption and operating a vehicle without a license. He was also adjudicated a runaway on two occasions. And perhaps most importantly, Payton was on probation for multiple juvenile delinquency crimes when he committed the robbery.
The Appeals Court ruled Payton actively participated in the gas station robbery and his increased delinquent activity shortly before and after committing the robbery demonstrates his inability to lead a law-abiding life, as well as his need for rehabilitation.
For all of these reasons, the court concluded that his 12-year sentence, with three years suspended to probation, was not inappropriate in light of the nature of the offense and the character of the offender.
The Appeals Court did reverse Sleva's order to play restitution.
Payton's argument concerning restitution is twofold: 1) whether the $1,150 restitution amount is supported by the evidence; and 2) whether the Sleva was required to hold a hearing on his ability to pay.
At sentencing, Payton argued that although he was willing to pay restitution, the State had not proven an amount of restitution owed to the Clark gas station.
The Appeals Court says the court ordered restitution shall not exceed an amount the person can or will be able to pay and the court shall base its restitution upon a consideration of the property damages the victim incurred as a result o the crime based on the actual cost of repair or replacement.
Sleva ordered Payton to pay $600 for the cash Singh testified was stolen from an envelope that was under the cash register prior to the robbery and $550 for the ten stolen cartons of cigarettes, or $1,150 total.
At sentencing, Payton's attorney Lorinda Yougcourt argued that neither amount was supported by the evidence.
The Appeals Court ruled there was sufficient evidence in the record to support the $600 award. Singh testified that $600 was in an envelope underneath the register prior to the robbery.
However as to the stolen cigarettes, the State failed to present any evidence to establish value but rather simply requested Payton be ordered to pay restitution in the amount of $55 per carton for each of the 10 cartons stolen in the amount of $550.
Judge Sleva accepted that valuation stating "I don't smoke, but I hear a lot of testimony of what cigarettes cost."
The Appeals Court ruled Sleva's general knowledge of the cost of cigarettes is not evidence to support the $550 award. The Court says this is particularly true where the gas station's cost to replace the cigarettes is likely less than retail cost.
The Appeals Court also ruled Sleva did not inquire into Payton's ability to pay restitution and no evidence was presented concerning Payton's financial resources and because restitution was imposed as a condition of probation Payton may be imprisoned for non-payment during his 3-year-term of probation.
That is why the Appeals Court ordered a new restitution hearing.
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