Brandon Eubank v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2015
• Docket: 15A01-1502-CR-69
• Status: Published

Opinion

MEMORANDUM DECISION Sep 28 2015, 9:16 am

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon Eubank, September 28, 2015

Appellant-Defendant, Court of Appeals Case No. 15A01-1502-CR-69 v. Appeal from the Dearborn Superior Court. The Honorable Sally A. State of Indiana, McLaughlin, Judge. Appellee-Plaintiff. Cause No. 15D02-1407-F6-325

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 1 of 8 Statement of the Case [1] Brandon Eubank appeals from the trial court’s sentencing order entered after he 1 pleaded guilty to one count of Level 6 neglect of a dependent and one count of 2 resisting law enforcement as a Class A misdemeanor. We affirm in part,

reverse in part, and remand with instructions.

Issues [2] Eubank presents the following issues for our review:

I. Whether the trial court erred by imposing a sentence in violation of the terms of the plea agreement. II. Whether Eubank’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

Facts and Procedural History [3] According to the probable cause affidavit, which was used to establish the

factual basis for Eubank’s plea, on July 18, 2014, Eubank had the care and

custody of his son, B.L.E., Jr., who was sixteen months old. On that date,

Deputy Brad Schwing of the Dearborn County Sheriff’s Department spoke with

B.L.E.’s mother, Melissa Green, who had a court order giving her interim

custody of the child. Deputy Schwing and Green went to Eubank’s residence

to enforce that court order and they observed him pushing a baby stroller

1 Ind. Code § 35-46-1-4(a) (2014). 2 Ind. Code § 35-44.1-3-1(a) (2014).

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 2 of 8 outside of his apartment. When Deputy Schwing exited his vehicle Eubank

began yelling obscenities at him, telling him to re-enter his vehicle and leave,

and that he was not going to take Eubank’s son from him. Deputy Schwing

advised Eubank that he had a court order for Green to take custody of B.L.E.

As Deputy Schwing approached Eubank, Eubank continued cursing at the

officer, told him that he was not going to take B.L.E., picked up B.L.E., and

started to walk away from Deputy Schwing.

[4] Deputy Schwing warned Eubank to calm down and not to make matters worse

by forcing the officer to arrest him for disorderly conduct. Eubank continued to

swear at the officer threatening that he would not let the officer take away his

son. Deputy Schwing grabbed Eubank’s wrist and told him that he was being

arrested for disorderly conduct. Eubank pulled away and continued to threaten

and curse at the officer. Deputy Schwing was unable to handcuff Eubank

because of the potential harm that might come to B.L.E., who remained in

Eubank’s arms.

[5] Ultimately, Eubank handed B.L.E. to Green. The officer grabbed Eubank’s

wrist in an attempt to handcuff him, but Eubank was able to pull away.

Eubank continued to scream at the officer and ran into the street, narrowly

missing being struck by a car that was passing by.

[6] The State charged Eubank with one count of neglect of a dependent, one count

of disorderly conduct, and one count of resisting law enforcement. Eubank and

the State entered into a joint motion tendering a conditional negotiated plea

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 3 of 8 agreement, which called for Eubank to plead guilty to neglect of a dependent

and resisting law enforcement. In exchange for the plea, the State agreed to

dismiss the count alleging disorderly conduct. The parties agreed that the

length of Eubank’s sentences for the two counts would be left to the trial court’s

discretion but would be served concurrently.

[7] The trial court accepted Eubank’s guilty plea. The trial court sentenced Eubank

to a term of 910 days executed for his conviction of neglect of a dependent with

365 days suspended to supervised probation and sentenced Eubanks to ninety

days executed for resisting law enforcement but ordered the sentences to be

served consecutively. Eubanks now appeals.

Discussion and Decision I. Sentencing Error [8] Eubank alleges and the State concedes that the trial erred by imposing

consecutive sentences when the plea agreement explicitly provided for

concurrent sentences. Eubank, however, has already served the executed

portion of his sentence.

[9] Plea agreements are in the nature of contracts entered into between the

defendant and the State, and, upon acceptance by the trial court, bind the trial

court. Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004). In general, once an

appellant’s sentence has been served, a challenge to the validity of his sentence

is rendered moot. Irwin v. State, 744 N.E.2d 565, 568 (Ind. Ct. App. 2001). In

cases where the appeal is rendered moot because the defendant has served his

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 4 of 8 sentence and none of the issues raised on appeal justify review under the public

interest exception, we have dismissed the appeal. See, e.g., Bell v. State, 1 N.E.3d

190, 193 (Ind. Ct. App. 2013) (dismissing appeal as moot).

[10] Eubank’s appeal, however, is different and we do not dismiss it. We will

address the issues presented in an appeal which might otherwise be dismissed as

moot where leaving the judgment undisturbed might lead to negative collateral

consequences. Hamed v. State, 852 N.E.2d 619, 622 (Ind. Ct. App. 2006). In

this case there are potential negative collateral consequences. Although Eubank

was released from the Department of Correction after serving the executed

portion of his sentence, the trial court ordered a portion of his sentence to be

suspended to supervised probation. Because of the potential sentencing

consequences Eubank might face in the event he violates his probation, we will

address the merits of his appeal.

[11] Paragraph 13 of Eubank’s plea agreement states that the parties agreed that the

sentences imposed by the trial court would be served concurrently. Appellant’s

Appendix p. 26. Because of this sentencing error, we reverse the trial court’s

sentencing order and remand with instructions to issue an order reflecting

concurrent sentencing.

II. Inappropriate Sentence [12] Likewise, we consider Eubank’s challenge to the appropriateness of his

sentence. In the event that Eubank were to violate the conditions of his

probation, the trial court has options for the sanctions to be imposed for the

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 5 of 8 probation violation. See Ind. Code § 35-38-2-3 (2012). The choice of sanction

depends on the terms of the probationer’s sentence. Id.

[13] A sentence authorized by statute will not be revised unless the sentence is

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

offender. Indiana Appellate Rule 7(B). We must not merely substitute our

opinion for that of the trial court. Sallee v. State, 777 N.E.2d 1204, 1216 (Ind.

Ct. App. 2002), trans. denied. In determining the appropriateness of a sentence,

a court of review may consider any factors appearing in the record. Clara v.

State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). The question for our review is

not whether another sentence is more appropriate, but rather, whether the

sentence imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind.

2012).

[14] Indiana Code section 35-46-1-4 (2014) provides in pertinent part that a person

having the care of a dependent, whether assumed voluntarily or because of a

legal obligation, who knowingly or intentionally places the dependent in a

situation that endangers the dependent’s life or health commits neglect of a

dependent, a Level 6 felony. Indiana Code section 35-44.1-3-1 (2014) provides

in pertinent part that a person who knowingly or intentionally flees from a law

enforcement officer after the officer has by visible or audible means identified

himself and ordered the person to stop has committed resisting law

enforcement, a Class A misdemeanor. The sentencing range for a Class A

misdemeanor is a fixed term of not more than one year. Ind. Code § 35-50-3-2

(1977). The sentencing range for a Level 6 felony is a fixed term of between six

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 6 of 8 months and two and a half years, with the advisory sentence being one year.

Ind. Code § 35-50-2-7(b) (2014). The trial court sentenced Eubank to 910 days

for his conviction of neglect of a dependent, with 365 days suspended to

supervised probation and to ninety days for his conviction of resisting law

enforcement.

[15] With respect to the nature of the offenses, Eubank, when confronted by Deputy

Schwing who was enforcing a valid custody order, placed his son, who was

sixteen months old at the time, in a position where he might have been injured.

Eubank refused to surrender B.L.E. to the officer who was assisting B.L.E.’s

mother in gaining custody of her son. Eubank, who was in a position of trust,

used B.L.E. as a shield to prevent Deputy Schwing from arresting Eubank for

disorderly conduct. Eubank pulled away from the officer and cursed at him.

Eubank fled from Deputy Schwing once Eubank surrendered B.L.E. to the

child’s mother and in the process Eubank was nearly struck by a passing

vehicle.

[16] With respect to the character of the offender, Eubank’s criminal history reveals

his inability to abide by the law. Eubank, who was twenty-six years old at the

time of sentencing, has violated the terms of his probation at least once every

time he has been placed on probation. His criminal history began with a

juvenile charge of operating a motor vehicle without ever receiving a license

and adjudications for criminal mischief and conversion. As an adult, he has a

felony conviction for tampering with evidence, or obstruction of justice, and has

misdemeanor convictions for operating a vehicle with a BAC of .08 or more,

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 7 of 8 violating a protective order, and invasion of privacy. This history establishes

that Eubank has been undeterred from criminal activity despite his numerous

contacts with the criminal justice system and leniency given to him by the

opportunity to serve portions of his sentences on probation.

[17] In order to receive sentence revision under Indiana Appellate Rule 7(B), an

appellant must demonstrate that his sentence is inappropriate in light of “both

the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621,

633 (Ind. Ct. App. 2008). Eubank has not demonstrated that his sentence is

inappropriate in light of either the nature of his offenses or his character.

Conclusion [18] In light of the foregoing, we affirm the trial court’s sentence for each of

Eubank’s convictions. However, we reverse and remand the trial court’s

sentencing order with instructions to enter an order that complies with the

terms of the plea agreement and reflects that the sentences were to be served

concurrently.

[19] Affirmed in part, reversed in part and remanded with instructions.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A01-1502-CR-69 | September 28, 2015 Page 8 of 8