Aljerome Hill v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 29, 2016
• Docket: 71A03-1505-CR-344
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 8:53 am 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 ATTORNEYS FOR APPELLEE Philip R. Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Aljerome Hill, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1505-CR-344 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1409-F6-171

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-CR-344 | February 29, 2016 Page 1 of 5 [1] Aljerome Hill appeals his thirty-month sentence for Level 6 felony domestic

battery. 1 As his sentence is not inappropriate, we affirm.

Facts and Procedural History [2] In August 2014, Hill was at T.K.’s house. T.K. is the mother of four of his

children. After watching a movie with the children in the living room, Hill

asked T.K. to take a walk. An argument ensued. While struggling, Hill and

T.K. knocked over a couch and subsequently fell on top of it. Six-year-old T.H.

saw Hill choking T.K. Hill put a blanket over T.K.’s head. T.H. attempted to

give T.K. her phone but Hill took it. Hill left and went to his aunt’s house.

T.K. called the police and reported the incident.

[3] As a result of the altercation, T.K. developed bruises. Hill apologized to T.K.,

and she and the children continued to visit Hill at his aunt’s house for another

month until charges were filed in September, 2014. Once charges were filed, a

no-contact order was entered.

[4] A jury found Hill guilty of Class A misdemeanor domestic battery, and he

pleaded guilty to the enhancement based on a prior, unrelated conviction of

domestic battery elevating the charge to a Level 6 felony. At sentencing, the

court noted Hill’s criminal history and past probation violation, but also

1 Ind. Code § 35-42-2-1.3 (2014).

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-CR-344 | February 29, 2016 Page 2 of 5 acknowledged he had admitted the enhancement. The court sentenced Hill to

thirty months with credit for 209 days served.

Discussion and Decision [5] Hill asserts his sentence is inappropriate. We may revise a sentence if it is

inappropriate in light of the nature of the offense and the character of the

offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the

aggravators and mitigators found by the trial court, but also any other factors

appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.

2007), trans. denied. The appellant bears the burden of demonstrating his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[6] 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). The

sentencing range for a level 6 felony is “a fixed term of between six (6) months

and two and one-half (2 ½) years, with the advisory sentence being one (1)

year.” Ind. Code § 35-50-2-7(b) (2014). Hill requests we reduce his thirty

month sentence to “a two year term, with six months of the sentence suspended

with mental health counseling as a term of probation.” (Appellant’s Br. at 10.)

[7] Regarding the nature of his offense, Hill battered the mother of four of his

children with those children watching. The children were all under seven years

old. Six-year-old T.H. testified he saw his “dad . . . choking [his] mom.” (Tr.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-CR-344 | February 29, 2016 Page 3 of 5 at 34.) T.H. heard his mom “[s]creaming for the phone.” (Id. at 35.) Hill

showed no regard for the fact that he was abusing T.K. in front of their

children, going so far as to say to T.K. in front of them: “I don’t care if you

die.” (Id. at 54.) Nothing about this incident indicates Hill was practicing

restraint or attempting to minimize the harm done. We cannot find

Hill’ssentence is inappropriate in light of the nature of his offense.

[8] When considering the character of the offender, one relevant fact is the

defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

App. 2007). The significance of a criminal history in assessing a defendant’s

character varies based on the gravity, nature, and number of prior offenses in

relation to the current offense. Id.

[9] Before this matter, Hill had twelve convictions: 2 two counts of misdemeanor

minor consuming, three counts of misdemeanor driving without a license,

misdemeanor domestic battery, two counts of felony sexual misconduct with a

minor, misdemeanor possession of a handgun without a permit, felony

domestic battery against T.K., misdemeanor criminal trespass against T.K., and

misdemeanor invasion of privacy. This is not Hill’s first offense of this kind. In

fact, this is not his first offense against this victim. He has served time in the

Department of Correction for this type of offense against this same victim. Yet,

2 We note the probation office states Hill had “10” convictions (two felonies and eight misdemeanors). (App. at A-177.) However, it appears they were counting the number of times Hill had contact with the criminal justice system resulting in a conviction rather than the number of convictions themselves. Twice, Hill was convicted of multiple charges in one cause of action.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-CR-344 | February 29, 2016 Page 4 of 5 this did not deter him from battering her again. In light of the facts in the

record, we cannot not conclude Hill’s sentence is inappropriate in light of his

character. See, e.g., See Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App.

2013) (affirming sentence as not inappropriate based on criminal history).

Conclusion [10] Hill has not demonstrated his thirty-month sentence is inappropriate in light of

his character and the nature of his offense. Accordingly, we affirm.

[11] Affirmed.

Najam, J., and Riley, J., concur.

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