MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 30 2019, 10:48 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Harper & Harper, LLC Valparaiso, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon Hill, April 30, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2613 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause Nos. 46D01-1804-F5-400 46D01-1805-F5-536
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 1 of 8 Statement of the Case [1] Brandon Hill appeals his sentence following his convictions for two counts of
Robbery, as Level 5 felonies, and one count of resisting law enforcement, as a
Class A misdemeanor. Hill presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On March 19, 2018, Hill, who was unarmed, entered a Metro PCS store in
Michigan City and ordered a store employee to give him all of the money from
the cash register. The employee handed over $1,216.76 to Hill. Then, on April
22, Hill ordered two employees at the same store to give him money from the
cash register, and they handed over $682.94 to Hill. Shortly after the second
robbery, police officers attempted to apprehend Hill, and he ran from the
officers before they were ultimately able to arrest him.
[4] In Cause No. 46D01-1805-F5-536 (“F5-536”), the State charged Hill with
robbery, as a Level 5 felony, for the March 19 robbery. In Cause No. 46D01-
1804-F5-400 (“F5-400”), the State charged Hill with robbery, as a Level 5
felony, and resisting law enforcement, as a Class A misdemeanor, for the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 2 of 8 incident on April 22. On August 23, Hill pleaded guilty as charged in both
cases.
[5] The trial court accepted his plea and sentenced Hill as follows: five years for
robbery under F5-536; five years for robbery under F5-400; and one year for
resisting law enforcement under F5-400. The court ordered that the sentences
under F5-400 would run concurrently, and the sentences under F5-536 and F5-
400 would run consecutively. However, the trial court then found that the
offenses constituted an episode of criminal conduct under Indiana Code Section
35-50-1-2 (2018) and capped the aggregate sentence under both cause numbers
at seven years executed. 1 This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion
[6] Hill asserts that the trial court abused its discretion when it sentenced him
because it relied on an invalid aggravating circumstance. Sentencing decisions
lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly
against the logic and effect of the facts and circumstances before the court, or
1 We fail to understand how the trial court reached this conclusion. The F5-536 robbery occurred on March 19. The F5-400 robbery occurred more than one month later on April 22. The two offenses were patently not an episode of criminal conduct. See I.C. § 35-50-1-2(b) (“‘[E]pisode of criminal conduct’ means offenses or a connected series of offenses that are closely related in time, place, and circumstance.”). Nonetheless, as the State invited the error by agreeing in the trial court with Hill’s assertion that the two offenses were an episode of criminal conduct, see Tr. Vol. II at 42-43, we will not review this issue on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 3 of 8 the reasonable, probable, and actual deductions to be drawn therefrom.” Gross
v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.
[7] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (2007)).
[8] Here, at sentencing, the trial court identified three aggravators: Hill’s criminal
history; his classification as a high risk to reoffend per his Indiana Risk
Assessment System (“IRAS”) score; and the fact that he was on parole at the
time that he committed the offenses. And the court identified a single
mitigator, namely, Hill’s guilty plea. The court found that the aggravators
outweighed the mitigators and imposed the aggregate sentence of seven years.
[9] Hill contends that the trial court erred when it found that his IRAS score was an
aggravator. Hill is correct that “[e]vidence-based offender assessment scores are
not to be considered aggravating or mitigating factors [and may not be used to]
determine the gross length of a sentence.” Williams v. State, 997 N.E.2d 1154,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 4 of 8 1165 (Ind. Ct. App. 2013). Thus, the trial court erred when it identified that
aggravator. But that is not the end of our inquiry.
[10] Where the trial court abuses its discretion in sentencing a defendant, we need
not remand for resentencing if we can “say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
enjoy support in the record.” Anglemyer, 868 N.E.2d at 491. Hill was only
twenty-eight years old at the time he committed the offenses, and his criminal
history includes two prior convictions in Illinois for aggravated battery. Hill
served twelve years on the second aggravated battery conviction, and he was on
parole following that sentence at the time he committed the instant offenses.
[11] We reject Hill’s assertion that, ignoring the invalid aggravator, the remaining
aggravators “are very similar” and do not support his sentence. Appellant’s Br.
at 6. Our Supreme Court has observed that “[p]robation stands on its own as
an aggravator. While a criminal history aggravates a subsequent crime because
of recidivism, probation further aggravates a subsequent crime because the
defendant was still serving a court-imposed sentence.” Ryle v. State, 842 N.E.2d
320, 323 n.5 (Ind.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 30 2019, 10:48 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Harper & Harper, LLC Valparaiso, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon Hill, April 30, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2613 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause Nos. 46D01-1804-F5-400 46D01-1805-F5-536
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 1 of 8 Statement of the Case [1] Brandon Hill appeals his sentence following his convictions for two counts of
Robbery, as Level 5 felonies, and one count of resisting law enforcement, as a
Class A misdemeanor. Hill presents two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On March 19, 2018, Hill, who was unarmed, entered a Metro PCS store in
Michigan City and ordered a store employee to give him all of the money from
the cash register. The employee handed over $1,216.76 to Hill. Then, on April
22, Hill ordered two employees at the same store to give him money from the
cash register, and they handed over $682.94 to Hill. Shortly after the second
robbery, police officers attempted to apprehend Hill, and he ran from the
officers before they were ultimately able to arrest him.
[4] In Cause No. 46D01-1805-F5-536 (“F5-536”), the State charged Hill with
robbery, as a Level 5 felony, for the March 19 robbery. In Cause No. 46D01-
1804-F5-400 (“F5-400”), the State charged Hill with robbery, as a Level 5
felony, and resisting law enforcement, as a Class A misdemeanor, for the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 2 of 8 incident on April 22. On August 23, Hill pleaded guilty as charged in both
cases.
[5] The trial court accepted his plea and sentenced Hill as follows: five years for
robbery under F5-536; five years for robbery under F5-400; and one year for
resisting law enforcement under F5-400. The court ordered that the sentences
under F5-400 would run concurrently, and the sentences under F5-536 and F5-
400 would run consecutively. However, the trial court then found that the
offenses constituted an episode of criminal conduct under Indiana Code Section
35-50-1-2 (2018) and capped the aggregate sentence under both cause numbers
at seven years executed. 1 This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion
[6] Hill asserts that the trial court abused its discretion when it sentenced him
because it relied on an invalid aggravating circumstance. Sentencing decisions
lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly
against the logic and effect of the facts and circumstances before the court, or
1 We fail to understand how the trial court reached this conclusion. The F5-536 robbery occurred on March 19. The F5-400 robbery occurred more than one month later on April 22. The two offenses were patently not an episode of criminal conduct. See I.C. § 35-50-1-2(b) (“‘[E]pisode of criminal conduct’ means offenses or a connected series of offenses that are closely related in time, place, and circumstance.”). Nonetheless, as the State invited the error by agreeing in the trial court with Hill’s assertion that the two offenses were an episode of criminal conduct, see Tr. Vol. II at 42-43, we will not review this issue on appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 3 of 8 the reasonable, probable, and actual deductions to be drawn therefrom.” Gross
v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.
[7] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (2007)).
[8] Here, at sentencing, the trial court identified three aggravators: Hill’s criminal
history; his classification as a high risk to reoffend per his Indiana Risk
Assessment System (“IRAS”) score; and the fact that he was on parole at the
time that he committed the offenses. And the court identified a single
mitigator, namely, Hill’s guilty plea. The court found that the aggravators
outweighed the mitigators and imposed the aggregate sentence of seven years.
[9] Hill contends that the trial court erred when it found that his IRAS score was an
aggravator. Hill is correct that “[e]vidence-based offender assessment scores are
not to be considered aggravating or mitigating factors [and may not be used to]
determine the gross length of a sentence.” Williams v. State, 997 N.E.2d 1154,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 4 of 8 1165 (Ind. Ct. App. 2013). Thus, the trial court erred when it identified that
aggravator. But that is not the end of our inquiry.
[10] Where the trial court abuses its discretion in sentencing a defendant, we need
not remand for resentencing if we can “say with confidence that the trial court
would have imposed the same sentence had it properly considered reasons that
enjoy support in the record.” Anglemyer, 868 N.E.2d at 491. Hill was only
twenty-eight years old at the time he committed the offenses, and his criminal
history includes two prior convictions in Illinois for aggravated battery. Hill
served twelve years on the second aggravated battery conviction, and he was on
parole following that sentence at the time he committed the instant offenses.
[11] We reject Hill’s assertion that, ignoring the invalid aggravator, the remaining
aggravators “are very similar” and do not support his sentence. Appellant’s Br.
at 6. Our Supreme Court has observed that “[p]robation stands on its own as
an aggravator. While a criminal history aggravates a subsequent crime because
of recidivism, probation further aggravates a subsequent crime because the
defendant was still serving a court-imposed sentence.” Ryle v. State, 842 N.E.2d
320, 323 n.5 (Ind. 2005). And this Court has stated that a defendant’s
commission of an offense while on probation is “a significant aggravator.”
Barber v. State, 863 N.E.2d 1199, 1208 (Ind. Ct. App. 2007), trans. denied. We
can say with confidence that the trial court would have imposed the same
sentence had it not considered the invalid aggravator.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 5 of 8 Issue Two: Inappropriateness of Sentence
[12] Hill asserts that his seven-year aggregate sentence is inappropriate in light of the
nature of the offenses and his character. Indiana Appellate Rule 7(B) provides
that “[t]he 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.” This Court has recently held that “[t]he advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[13] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 6 of 8 whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).
[14] The maximum possible aggregate sentence that the trial court could have
imposed here was thirteen years, and Hill’s aggregate sentence is only seven
years. We cannot say that Hill’s sentence is inappropriate in light of the nature
of the offenses and his character. With respect to the nature of the offenses, Hill
used intimidation to steal money from three different Metro PCS employees on
two occasions, and Hill attempted to evade officers when they tried to
apprehend him. In addition, again, Hill was on parole following a twelve-year
sentence for aggravated battery at the time of the offenses. With respect to
Hill’s character, while the record does not show a juvenile history in Indiana,
Hill testified at his sentencing hearing that he had been “held, detained, [or]
incarcerated [in Illinois] since [he] was 11 or 12 years old.” Tr. at 20. And
Hill’s two prior aggravated battery convictions involved “battery on a Peace
Officer” and “battery with a firearm,” respectively. Appellant’s App. Vol. 2 at
23. We cannot say that Hill’s aggregate sentence of seven years is inappropriate
in light of the nature of the offenses and his character.
[15] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 7 of 8 Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2613 | April 30, 2019 Page 8 of 8