MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 20 2018, 6:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alexander Marvel Jones, February 20, 2018 Appellant-Defendant, Court of Appeals Case No. 45A03-1709-CR-2112 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge The Honorable Natalie Bokota, Judge Pro Tempore Trial Court Cause No. 45G01-1701-F2-2
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 1 of 8 Case Summary [1] Alexander Marvel Jones (“Jones”) challenges his five-year sentence, imposed
after Jones pleaded guilty to Criminal Recklessness, as a Level 5 felony.1
[2] We affirm.
Issues [3] Jones presents the following issues:
I. Whether the trial court abused its discretion in sentencing him; and
II. Whether his sentence is inappropriate.
Facts and Procedural History [4] On January 1, 2017, Adrian Ortiz (“Ortiz”) was parking in Hammond when
another vehicle parked behind his. Eriec Campbell (“Campbell”) was driving
the other vehicle, and Jones was a passenger. Campbell exited the vehicle,
approached Ortiz, and then fired several shots into Ortiz’s vehicle. Ortiz began
to drive off, at which point Jones shot toward the rear of the vehicle.
1 Ind. Code §§ 35-42-2-2(a), -2(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 2 of 8 [5] In the wake of the shooting, Jones faced three felony counts: Attempted
Murder, as a Level 1 felony;2 Attempted Robbery Resulting in Serious Bodily
Injury, as a Level 2 felony;3 and Attempted Armed Robbery, as a Level 3
felony.4 Jones and the State reached a plea agreement whereby the State would
amend the charging information to include a charge of Criminal Recklessness,
as a Level 5 felony—to which Jones would plead guilty—and the State would
move to dismiss the remaining counts. Jones later pleaded guilty pursuant to
the plea agreement. Thereafter, the trial court held a sentencing hearing, and
sentenced Jones to five years in the Indiana Department of Correction.
[6] Jones now appeals.
Discussion and Decision Abuse of Discretion [7] The sentencing range for a Level 5 felony is between one year and six years,
with an advisory sentence of three years. I.C. § 35-50-2-6. Where, as here, the
trial court has imposed a sentence within the statutory range, the sentence “is
subject to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g. The trial court abuses its discretion if its
2 I.C. §§ 35-42-1-1, 35-41-5-1. 3 I.C. §§ 35-42-5-1, 35-41-5-1. 4 Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 3 of 8 decision is clearly against the logic and effect of the facts and circumstances
before it, or the reasonable deductions to be drawn therefrom. Id.
[8] Pursuant to Indiana Code Section 35-38-1-3, “[b]efore sentencing a person for a
felony, the court must conduct a hearing to consider the facts and
circumstances relevant to sentencing.” If, upon the hearing, the court identifies
aggravating circumstances or mitigating circumstances, the court must enter a
“statement of the court’s reasons for selecting the sentence that it imposes.”
I.C. § 35-38-1-3. In its sentencing statement, the trial court need not identify
every aggravating or mitigating circumstance, but it is obligated to “identify all
significant mitigating and aggravating circumstances.” Anglemyer, 868 N.E.2d at
490 (emphasis added). Moreover, the trial court is not obligated to explain why
it did not find a circumstance to be significantly mitigating. Id. at 493.
[9] On appeal, “[a]n allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence
is both significant and clearly supported by the record.” Id. Nonetheless, even
where a trial court has failed to identify a significant mitigating circumstance,
we will not remand for resentencing unless “we cannot say with confidence that
the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
[10] In sentencing Jones, the trial court identified two mitigating circumstances: that
Jones had completed programs while in jail and that Jones was helpful to his
elderly mother. The court gave the latter factor “relatively low weight” because
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 4 of 8 Jones had committed several crimes while living with his mother, and Jones
had made plans to move out of state. App. Vol. II at 72. The trial court also
identified aggravating circumstances, including Jones’s criminal history (three
felony convictions and six misdemeanor convictions), and Jones’s continued
engagement in unlawful behavior after receiving leniency in prior criminal
matters. Moreover, the trial court gave “moderate weight” to the impact on
Ortiz, who was severely injured when Campbell shot into the car, and who
suffered from fear, anxiety, and depression due to the incident. Id. at 73.
[11] Jones argues that the trial court abused its sentencing discretion by failing to
identify certain mitigating circumstances, including his decision to plead guilty.
“[T]he significance of a guilty plea as a mitigating factor varies from case to
case.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), on reh’g. “For
example, a guilty plea may not be significantly mitigating when it does not
demonstrate the defendant’s acceptance of responsibility . . . or when the
defendant receives a substantial benefit in return for the plea.” Id. Moreover, a
guilty plea may not be significantly mitigating if it appears to be more likely the
result of pragmatism than acceptance of responsibility and remorse. Id.
[12] Here, Jones’s decision to plead guilty appears to have been pragmatic, in that
the State agreed to seek dismissal of three counts that carried greater sentencing
exposure. Thus, we cannot say that the trial court abused its discretion by not
identifying the decision to plead guilty as a significant mitigating circumstance.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 5 of 8 [13] Jones next argues that the court should have determined that his remorse was a
significant mitigating circumstance. “Remorse, or lack thereof, by a defendant
often is something that is better gauged by a trial judge who views and hears a
defendant’s apology and demeanor first hand and determines the defendant’s
credibility.” Gibson v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 20 2018, 6:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alexander Marvel Jones, February 20, 2018 Appellant-Defendant, Court of Appeals Case No. 45A03-1709-CR-2112 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge The Honorable Natalie Bokota, Judge Pro Tempore Trial Court Cause No. 45G01-1701-F2-2
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 1 of 8 Case Summary [1] Alexander Marvel Jones (“Jones”) challenges his five-year sentence, imposed
after Jones pleaded guilty to Criminal Recklessness, as a Level 5 felony.1
[2] We affirm.
Issues [3] Jones presents the following issues:
I. Whether the trial court abused its discretion in sentencing him; and
II. Whether his sentence is inappropriate.
Facts and Procedural History [4] On January 1, 2017, Adrian Ortiz (“Ortiz”) was parking in Hammond when
another vehicle parked behind his. Eriec Campbell (“Campbell”) was driving
the other vehicle, and Jones was a passenger. Campbell exited the vehicle,
approached Ortiz, and then fired several shots into Ortiz’s vehicle. Ortiz began
to drive off, at which point Jones shot toward the rear of the vehicle.
1 Ind. Code §§ 35-42-2-2(a), -2(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 2 of 8 [5] In the wake of the shooting, Jones faced three felony counts: Attempted
Murder, as a Level 1 felony;2 Attempted Robbery Resulting in Serious Bodily
Injury, as a Level 2 felony;3 and Attempted Armed Robbery, as a Level 3
felony.4 Jones and the State reached a plea agreement whereby the State would
amend the charging information to include a charge of Criminal Recklessness,
as a Level 5 felony—to which Jones would plead guilty—and the State would
move to dismiss the remaining counts. Jones later pleaded guilty pursuant to
the plea agreement. Thereafter, the trial court held a sentencing hearing, and
sentenced Jones to five years in the Indiana Department of Correction.
[6] Jones now appeals.
Discussion and Decision Abuse of Discretion [7] The sentencing range for a Level 5 felony is between one year and six years,
with an advisory sentence of three years. I.C. § 35-50-2-6. Where, as here, the
trial court has imposed a sentence within the statutory range, the sentence “is
subject to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g. The trial court abuses its discretion if its
2 I.C. §§ 35-42-1-1, 35-41-5-1. 3 I.C. §§ 35-42-5-1, 35-41-5-1. 4 Id.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 3 of 8 decision is clearly against the logic and effect of the facts and circumstances
before it, or the reasonable deductions to be drawn therefrom. Id.
[8] Pursuant to Indiana Code Section 35-38-1-3, “[b]efore sentencing a person for a
felony, the court must conduct a hearing to consider the facts and
circumstances relevant to sentencing.” If, upon the hearing, the court identifies
aggravating circumstances or mitigating circumstances, the court must enter a
“statement of the court’s reasons for selecting the sentence that it imposes.”
I.C. § 35-38-1-3. In its sentencing statement, the trial court need not identify
every aggravating or mitigating circumstance, but it is obligated to “identify all
significant mitigating and aggravating circumstances.” Anglemyer, 868 N.E.2d at
490 (emphasis added). Moreover, the trial court is not obligated to explain why
it did not find a circumstance to be significantly mitigating. Id. at 493.
[9] On appeal, “[a]n allegation that the trial court failed to identify or find a
mitigating factor requires the defendant to establish that the mitigating evidence
is both significant and clearly supported by the record.” Id. Nonetheless, even
where a trial court has failed to identify a significant mitigating circumstance,
we will not remand for resentencing unless “we cannot say with confidence that
the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491.
[10] In sentencing Jones, the trial court identified two mitigating circumstances: that
Jones had completed programs while in jail and that Jones was helpful to his
elderly mother. The court gave the latter factor “relatively low weight” because
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 4 of 8 Jones had committed several crimes while living with his mother, and Jones
had made plans to move out of state. App. Vol. II at 72. The trial court also
identified aggravating circumstances, including Jones’s criminal history (three
felony convictions and six misdemeanor convictions), and Jones’s continued
engagement in unlawful behavior after receiving leniency in prior criminal
matters. Moreover, the trial court gave “moderate weight” to the impact on
Ortiz, who was severely injured when Campbell shot into the car, and who
suffered from fear, anxiety, and depression due to the incident. Id. at 73.
[11] Jones argues that the trial court abused its sentencing discretion by failing to
identify certain mitigating circumstances, including his decision to plead guilty.
“[T]he significance of a guilty plea as a mitigating factor varies from case to
case.” Anglemyer v. State, 875 N.E.2d 218, 221 (Ind. 2007), on reh’g. “For
example, a guilty plea may not be significantly mitigating when it does not
demonstrate the defendant’s acceptance of responsibility . . . or when the
defendant receives a substantial benefit in return for the plea.” Id. Moreover, a
guilty plea may not be significantly mitigating if it appears to be more likely the
result of pragmatism than acceptance of responsibility and remorse. Id.
[12] Here, Jones’s decision to plead guilty appears to have been pragmatic, in that
the State agreed to seek dismissal of three counts that carried greater sentencing
exposure. Thus, we cannot say that the trial court abused its discretion by not
identifying the decision to plead guilty as a significant mitigating circumstance.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 5 of 8 [13] Jones next argues that the court should have determined that his remorse was a
significant mitigating circumstance. “Remorse, or lack thereof, by a defendant
often is something that is better gauged by a trial judge who views and hears a
defendant’s apology and demeanor first hand and determines the defendant’s
credibility.” Gibson v. State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006); see also
Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (“Without evidence of some
impermissible consideration by the court, we accept its determination of
credibility.”). Here, the trial court made equivocal remarks regarding Jones’s
credibility: at one point, the trial court stated that it “believe[d]” Jones was
sincere, Tr. Vol. II at 50, but it later remarked that it “hop[ed]” Jones was
sincere. Id. at 51. Thus, it appears that the court was not fully convinced of
Jones’s credibility, and we are not persuaded that the trial court abused its
discretion by not identifying remorse as a significant mitigating circumstance.
Inappropriate Sentence [14] Although a trial court may have acted within its discretion in sentencing a
criminal defendant, the Indiana Constitution authorizes independent appellate
review and revision of the selected sentence. Ind. Const. art. 7, §§ 4, 6. This
authority is implemented through 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 sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” The appropriateness of a sentence “turns on ‘myriad . . . factors that
come to light in a given case,’” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 6 of 8 (quoting Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)), and the principal
role of our review “is to attempt to leaven the outliers.” McCain v. State, 88
N.E.3d 1066, 1067 (Ind. 2018) (per curiam). We begin our “analysis with
‘substantial deference to the trial court’s sentence,’ then ‘independently
examine’ the defendant’s offenses and character.” Taylor, 86 N.E.3d at 165
(quoting Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015)).
[15] Regarding the offense, we observe that the legislature selected an advisory
sentence of three years. See I.C. § 35-50-2-6. As to the nature of the offense,
while Ortiz was driving to safety after Campbell shot him, Jones fired at Ortiz’s
vehicle. Jones argues that his shots did not strike Ortiz or the vehicle, yet Jones
placed Ortiz—and anyone else nearby—in danger. Moreover, in asking us to
revise his sentence, Jones attempts to minimize his actions, arguing that he was
intoxicated and thought Campbell was in danger. Jones asserts that although
he “knowingly fired at the vehicle, he believed he was justified in doing so
thereby mitigating the nature of the offense.” Appellant’s Br. at 10. However,
we are not inclined to disturb the sentence based on this extraordinary belief.
[16] As to the character of the offender, Jones has accumulated six misdemeanor
convictions and three felony convictions. Jones argues that none of his felonies
were for violent acts. Jones also argues that he accepted responsibility by
pleading guilty and that he expressed remorse prior to being sentenced—actions
that generally reflect positively on his character. However, in previous criminal
matters, Jones has had his probation revoked, and he violated the terms of his
conditional discharge in Illinois. Thus, despite the prior leniency afforded to
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 7 of 8 him, Jones has continued to make poor decisions—including the decision to
carry a weapon and drink alcohol to the point that he could personally
rationalize shooting at another vehicle. Moreover, although it appears that
Jones is a helpful son, Jones committed several crimes while living with his
mother, despite the support network Jones has with his law-abiding family.
Ultimately, Jones has had several opportunities to reform his behavior, but has
continued to engage in criminal activity that this time put others in danger.
[17] After evaluating the nature of the offense and Jones’s character, we are not
persuaded that the five-year sentence is inappropriate.
Conclusion [18] The trial court did not abuse its sentencing discretion, and the sentence is not
inappropriate.
[19] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1709-CR-2112 | February 20, 2018 Page 8 of 8