MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 04 2016, 5:40 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Abiodun O. Bratton, May 4, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1509-CR-1385 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1503-F6-251
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 1 of 6 [1] Abiodun Bratton was convicted of two counts of Level 6 felony residential
entry, 1 one count of Level 6 felony resisting law enforcement, 2 and two counts
of Class B misdemeanor battery. 3 The court imposed an aggregate sentence of
3.5 years. Bratton argues that his sentence is inappropriate in light of his
character and offense. We affirm.
Facts and Procedural History [2] On the evening of March 17, 2015, Bratton smoked synthetic marijuana. He
then entered the home of D.W., who did not know Bratton. D.W. was
frightened and told Bratton to leave, but he refused. Bratton told D.W. he was
being chased by someone and asked her to call the police, but when D.W. tried
to call the police, Bratton grabbed her phone, hit D.W. in the face, and ran
from the house with her phone.
[3] A few moments later, Bratton knocked on the door of D.P.’s home. D.P.
mistook Bratton for her brother and opened the door. Bratton pushed his way
into the house, locked the door behind him, and announced the police were
after him. D.P.’s children were scared, causing them to scream and cry. D.P.
and Bratton struggled physically, causing D.P. pain, and D.P. was afraid
1 Ind. Code § 35-43-2-1.5 (2014). 2 Ind. Code § 35-44.1-3-1 (2014). 3 Ind. Code § 35-42-2-1 (2014).
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 2 of 6 because she thought Bratton wanted to hurt her. Bratton took D.P.’s cell
phone, and she convinced him to leave.
[4] When officers apprehended Bratton a short time later, he was yelling and acting
mentally unstable. Officers placed Bratton in the back of a police car, but he
refused to put his legs and feet inside the car so the door could be closed.
Bratton then forced his way out of the car and stood up. His sudden action
caused one officer to hit his knee on the curb, resulting in an abrasion, pain, and
swelling of that knee.
[5] The State charged Bratton with two counts of Level 6 felony residential entry,
one count of Level 6 felony resisting law enforcement, and two counts of Class
B misdemeanor battery based on his touching D.W. and D.P. Bratton pled
guilty to those crimes. The trial court found aggravators in Bratton’s criminal
history that involved firearms and drug trafficking, and in his failure to be
rehabilitated by prior punishments. The trial court found Bratton’s guilty plea
as a mitigator. The court then imposed sentences of two years for each
residential entry, 180 days for each battery, and 1.5 years for resisting law
enforcement. The court ordered the four sentences for residential entry and
battery served concurrently and the sentence for resisting law enforcement
served consecutive to those for an aggregate sentence of 3.5 years.
Discussion and Decision [6] Bratton asks that we revise his sentence. We may grant his request if, “after
due consideration of the trial court’s decision, the Court finds that the sentence
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 3 of 6 is inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). We give considerable deference to a trial
court’s sentencing decision, and its decision should be affirmed “unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
appellant bears the burden of demonstrating his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[7] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). To
determine the appropriateness of a deviation from the advisory sentence, we
consider “whether there is anything more or less egregious about the offense
committed by the defendant that makes it different from the ‘typical’ offense
accounted for by the legislature when it set the advisory sentence.” Johnson v.
State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013).
[8] Bratton pled guilty to three Level 6 felonies and two Class B misdemeanors.
“A person who commits a Level 6 felony (for a crime committed after June 30,
2014) shall be imprisoned for a fixed term of between six (6) months and two
and one-half years, with the advisory sentence being one (1) year.” Ind. Code §
35-50-2-7 (2014). “A person who commits a Class B misdemeanor shall be
imprisoned for a fixed term of not more than one hundred eighty (180) days.”
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 4 of 6 Ind. Code § 35-50-3-3 (1977). In light of the range of sentences Bratton could
have received, 4 we see nothing inappropriate about his 3.5-year sentence.
[9] Bratton voluntarily consumed an illegal drug to which he admitted being
addicted and which caused him to become paranoid and mentally unstable. He
then entered two separate residences, battering a woman inside each of those
homes. In one of the homes, two young children screamed and cried as they
watched Bratton attack their mother and, thereafter, they had trouble sleeping
because they were afraid someone would break into their house. As Bratton left
each of those homes, he took the occupant’s cell phone with him. The third
person Bratton injured physically was a police officer. Bratton had already
been placed into the police car, but he shoved his way out of the car, knocking
the officer down in the process and causing injury to his knee. As Bratton’s five
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 04 2016, 5:40 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Abiodun O. Bratton, May 4, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1509-CR-1385 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D06-1503-F6-251
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 1 of 6 [1] Abiodun Bratton was convicted of two counts of Level 6 felony residential
entry, 1 one count of Level 6 felony resisting law enforcement, 2 and two counts
of Class B misdemeanor battery. 3 The court imposed an aggregate sentence of
3.5 years. Bratton argues that his sentence is inappropriate in light of his
character and offense. We affirm.
Facts and Procedural History [2] On the evening of March 17, 2015, Bratton smoked synthetic marijuana. He
then entered the home of D.W., who did not know Bratton. D.W. was
frightened and told Bratton to leave, but he refused. Bratton told D.W. he was
being chased by someone and asked her to call the police, but when D.W. tried
to call the police, Bratton grabbed her phone, hit D.W. in the face, and ran
from the house with her phone.
[3] A few moments later, Bratton knocked on the door of D.P.’s home. D.P.
mistook Bratton for her brother and opened the door. Bratton pushed his way
into the house, locked the door behind him, and announced the police were
after him. D.P.’s children were scared, causing them to scream and cry. D.P.
and Bratton struggled physically, causing D.P. pain, and D.P. was afraid
1 Ind. Code § 35-43-2-1.5 (2014). 2 Ind. Code § 35-44.1-3-1 (2014). 3 Ind. Code § 35-42-2-1 (2014).
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 2 of 6 because she thought Bratton wanted to hurt her. Bratton took D.P.’s cell
phone, and she convinced him to leave.
[4] When officers apprehended Bratton a short time later, he was yelling and acting
mentally unstable. Officers placed Bratton in the back of a police car, but he
refused to put his legs and feet inside the car so the door could be closed.
Bratton then forced his way out of the car and stood up. His sudden action
caused one officer to hit his knee on the curb, resulting in an abrasion, pain, and
swelling of that knee.
[5] The State charged Bratton with two counts of Level 6 felony residential entry,
one count of Level 6 felony resisting law enforcement, and two counts of Class
B misdemeanor battery based on his touching D.W. and D.P. Bratton pled
guilty to those crimes. The trial court found aggravators in Bratton’s criminal
history that involved firearms and drug trafficking, and in his failure to be
rehabilitated by prior punishments. The trial court found Bratton’s guilty plea
as a mitigator. The court then imposed sentences of two years for each
residential entry, 180 days for each battery, and 1.5 years for resisting law
enforcement. The court ordered the four sentences for residential entry and
battery served concurrently and the sentence for resisting law enforcement
served consecutive to those for an aggregate sentence of 3.5 years.
Discussion and Decision [6] Bratton asks that we revise his sentence. We may grant his request if, “after
due consideration of the trial court’s decision, the Court finds that the sentence
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 3 of 6 is inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). We give considerable deference to a trial
court’s sentencing decision, and its decision should be affirmed “unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
appellant bears the burden of demonstrating his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[7] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). To
determine the appropriateness of a deviation from the advisory sentence, we
consider “whether there is anything more or less egregious about the offense
committed by the defendant that makes it different from the ‘typical’ offense
accounted for by the legislature when it set the advisory sentence.” Johnson v.
State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013).
[8] Bratton pled guilty to three Level 6 felonies and two Class B misdemeanors.
“A person who commits a Level 6 felony (for a crime committed after June 30,
2014) shall be imprisoned for a fixed term of between six (6) months and two
and one-half years, with the advisory sentence being one (1) year.” Ind. Code §
35-50-2-7 (2014). “A person who commits a Class B misdemeanor shall be
imprisoned for a fixed term of not more than one hundred eighty (180) days.”
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 4 of 6 Ind. Code § 35-50-3-3 (1977). In light of the range of sentences Bratton could
have received, 4 we see nothing inappropriate about his 3.5-year sentence.
[9] Bratton voluntarily consumed an illegal drug to which he admitted being
addicted and which caused him to become paranoid and mentally unstable. He
then entered two separate residences, battering a woman inside each of those
homes. In one of the homes, two young children screamed and cried as they
watched Bratton attack their mother and, thereafter, they had trouble sleeping
because they were afraid someone would break into their house. As Bratton left
each of those homes, he took the occupant’s cell phone with him. The third
person Bratton injured physically was a police officer. Bratton had already
been placed into the police car, but he shoved his way out of the car, knocking
the officer down in the process and causing injury to his knee. As Bratton’s five
convictions resulted in physical injury to three adults and negatively impacted
two children, we find nothing inappropriate about a 3.5-year sentence.
[10] To assess Bratton’s character, one relevant fact we consider is Bratton’s
criminal history. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.
2007). The significance of criminal history varies based on the gravity, nature,
and number of prior offenses in relation to the current offense. Id. Bratton’s
4 Because felony resisting law enforcement is a “crime of violence,” Ind. Code § 35-50-1-2(a)(16), the total consecutive term of imprisonment that Bratton could have received was not limited to the four years provided by Ind. Code § 35-50-1-2(d)(1). See Ind. Code § 35-50-1-2(c) (explaining consecutive sentences for “felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d),” “except for crimes of violence”) (emphasis added).
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 5 of 6 criminal history includes two convictions -- a misdemeanor for driving without
a license, and a federal felony for possessing a firearm while drug trafficking.
During the three years of supervised release Bratton received for the felony, the
court first had to modify his release to require community service because
Bratton had not obtained employment. Then, eighteen months later, the court
revoked his release and ordered Bratton back to prison for five months. Despite
having completed substance abuse treatment in jail in 2005 and recognizing his
addiction to synthetic marijuana, Bratton admittedly used that drug daily from
2009 until 2015, without seeking assistance to quit. These facts do not suggest a
3.5 year sentence is inappropriate for Bratton’s character.
Conclusion [11] Bratton has not demonstrated that his sentence is inappropriate in light of his
character and offense. Accordingly, we affirm his cumulative 3.5 year sentence
for three Level 6 felonies and two Class B misdemeanors.
[12] Affirmed.
Baker, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1509-CR-1385 | May 4, 2016 Page 6 of 6