Antonio D. Townsend v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 9, 2017
• Docket: 02A03-1611-CR-2630
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jun 09 2017, 9:04 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Curtis T. Hill, Jr. Anthony S. Churchward, P.C. Attorney General of Indiana Fort Wayne, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Antonio D. Townsend, June 9, 2017

Appellant-Defendant, Court of Appeals Case No. 02A03-1611-CR-2630 v. Appeal from the Allen Superior Court. The Honorable John F. Surbeck, Jr., State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 02D06-1510-F5-280

Darden, Senior Judge

Statement of the Case [1] Antonio D. Townsend appeals the four-year sentence the trial court imposed

after he pleaded guilty to criminal recklessness, a Level 5 felony, and carrying a

handgun without a license, a Class A misdemeanor. We affirm.

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 1 of 6 Issue [2] Townsend raises one issue, which we restate as: whether Townsend’s sentence

is inappropriate in light of the nature of the offenses and his character.

Facts and Procedural History [3] On September 7, 2015, at approximately 2:30 in the afternoon, Townsend and

his two friends were at an apartment complex in Fort Wayne, where their

actions were recorded by a security camera. The recording showed Townsend

pulling a handgun out of his pants as he walked out of an apartment building.

He did not have a license to carry a handgun. Unprovoked, Townsend fired

several shots into the parking lot. Next, a silver car accelerated through the

parking lot, and its occupants fired into the building as Townsend fled back

inside. The incoming gunfire shattered several windows, which fell on

Townsend’s friends. Townsend returned shots at the car and then, after the

shooting was over, left the building, walked behind it, and concealed the

handgun behind a dumpster.

[4] Officers were dispatched to the scene. A witness told them that Townsend hid

the handgun behind the dumpster. Townsend told the officers he was

defending himself and his friends from people who shot at them from a passing

car. He further stated a friend dropped the gun during the shooting and he

picked it up and fired in self-defense. The officers later received the security

camera recording and arrested Townsend after reviewing the recording.

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 2 of 6 [5] The State charged Townsend with criminal recklessness and carrying a

handgun without a license. Approximately a month before trial, Townsend

entered a plea of guilty as charged without a plea agreement. The court

accepted the guilty plea.

[6] At sentencing, Townsend conceded the surveillance video showed him

provoking the gun fight. The court sentenced Townsend to an aggregate

sentence of four years, with two years suspended to probation. The court

further ordered Townsend to serve the sentence consecutively to a nine-year

sentence for armed robbery from another case. This appeal followed.

Discussion and Decision [7] Townsend argues his sentence is inappropriate and should be reduced.

Although a trial court may have acted within its lawful discretion in fashioning

a sentence, the Court may revise the sentence “‘if, after due consideration of the

trial court’s decision, [we] find[ ] that the sentence is inappropriate in light of

the nature of the offense and the character of the offender.”’ Foutch v. State, 53

N.E.3d 577, 580 (Ind. Ct. App. 2016) (quoting Ind. Appellate Rule 7(B)). The

role of appellate review under Appellate Rule 7(B) is to attempt to leaven the

outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether we

regard a sentence as inappropriate turns on our sense of the culpability of the

defendant, the severity of the crime, the damage done to others, and myriad

other factors that come to light in each case. Id. at 1224. The defendant bears

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 3 of 6 the burden of persuading this Court that his sentence is inappropriate. Clark v.

State, 26 N.E.3d 615, 618 (Ind. Ct. App. 2014), trans. denied.

[8] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Blair v. State, 62 N.E.3d 424, 430

(Ind. Ct. App. 2016). At the time Townsend committed his offenses, the

maximum sentence for a Level 5 felony was six years, the minimum was one

year, and the advisory sentence was three years. Ind. Code § 35-50-2-6 (2014).

The maximum sentence for a Class A misdemeanor was one year. Ind. Code §

35-50-3-2 (1977). The trial court sentenced Townsend to four years for criminal

recklessness, with two years suspended to probation. The court further

sentenced Townsend to one year for carrying a handgun without a license. The

court directed Townsend to serve the sentences concurrently, for a total

sentence of four years, with two executed. Finally, the court directed

Townsend to serve his aggregate sentence consecutively to a nine-year sentence

for armed robbery in an unrelated case.

[9] Turning to the nature of the offense, Townsend presents no argument on the

issue. In any event, we note that Townsend provoked a gunfight in an

apartment complex in broad daylight. He fired shots from a handgun at several

individuals in a silver car, who in turn sped away through the parking lot and

returned fire at Townsend and his friends. Townsend’s actions endangered the

lives of people in the car, himself, his friends, and possibly others in the

complex.

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 4 of 6 [10] In addition, Townsend attempted to deceive investigators by hiding the

handgun. He also lied to the officers, claiming the people in the silver car shot

first and, in self-defense, he picked up the gun and fired it after a friend had

dropped it. If not for the security camera recording, Townsend may have

succeeded in obstructing the officers’ investigation.

[11] As for the character of the offender, Townsend was nineteen years old at the

time of sentencing. His presentence investigation report revealed a lengthy

juvenile history, including an adjudication in Florida for an act that would have

constituted battery if committed by an adult. In Indiana, he had been

adjudicated a delinquent for acts that, if committed by an adult, would have

constituted escape, and receiving stolen auto parts, both as Class D felonies.

He also had delinquency adjudications for battery, criminal trespass, resisting

law enforcement, and conversion, all Class A misdemeanors if committed by an

adult. As an adult, less than a month after he committed the current offenses,

he committed armed robbery, a Level 3 felony, for which he later received a

nine-year sentence. Townsend amassed a significant criminal history all within

a few short years.

[12] Townsend argues he is entitled to credit for pleading guilty without a plea

agreement, well in advance of the trial date, thereby conserving valuable

judicial resources. A guilty plea is not necessarily a mitigating factor where the

evidence against the defendant is so strong that the decision to plead guilty is

merely pragmatic. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App.

2011), trans. denied. Here, there was a live witness to the event, Townsend’s

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 5 of 6 criminal behavior was recorded by a security camera, and he conceded at

sentencing that the recording shows him initiating the gunfight. We conclude

Townsend has failed to demonstrate that his sentence is inappropriate.

Conclusion [13] For the reasons stated above, we affirm the judgment of the trial court.

[14] Affirmed.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1611-CR-2630 | June 9, 2017 Page 6 of 6