MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 08 2017, 10:47 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon J. Kent, November 8, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1706-CR-1367 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff. Judge Trial Court Cause Nos. 84D03-1602-F1-589 84D03-1302-FD-557
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 1 of 7 Case Summary [1] On February 26, 2016, Appellee-Plaintiff the State of Indiana (“the State”)
charged Appellant-Defendant Brandon J. Kent with numerous criminal
offenses in connection to a domestic altercation with his ex-girlfriend and
subsequent attempt to evade arrest. Kent eventually pled guilty to Level 3
felony attempted aggravated battery, four counts of Level 6 felony criminal
recklessness, and Level 6 felony resisting law enforcement. The trial court
accepted Kent’s guilty plea and, on May 22, 2017, sentenced him to an
aggregate term of sixteen years, with fourteen years executed and two years
suspended to probation. On appeal, Kent contends that his sentence is
inappropriate in light of the nature of his offense and his character. Concluding
otherwise, we affirm.
Facts and Procedural History1 [2] On February 22, 2016, Kent became engaged in an argument with his ex-
girlfriend, Elaine, during an exchange of the former couple’s children after Kent
had exercised parenting time with the children.2 Kent and Elaine had arranged
1 Given that few facts were included in the factual basis provided to the trial court during the guilty plea hearing, the parties rely on the facts presented in the “Affidavit of Probable Cause” in the fact patterns included in their appellate briefs. In order to provide factual context to the reader, we will do the same. 2 It appears that while Kent is the biological father of only one of the children, he was present in the second child’s life since her birth and exercised parenting time with that child as well.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 2 of 7 to meet in the lobby of the hotel where Elaine had been staying. However,
Kent did not have either of the children with him when he arrived.
[3] At Kent’s request, Elaine followed Kent to his apartment to pick up the
children. While en route to the apartment, Kent “began speeding up passing
[Elaine’s vehicle, slamming on his brakes and swerving at [Elaine’s] vehicle.”
Appellant’s App. Vol. II–Confidential, p. 107. When Elaine pulled into a
nearby parking lot, Kent threw a tire iron at her vehicle. Elaine did not
continue on to Kent’s apartment but, rather, returned to the hotel where she
had been staying.
[4] Kent eventually brought the children to Elaine. When Elaine attempted to
drive away with the children, Kent chased Elaine’s vehicle and struck her
windshield with a hatchet. He also struck Elaine’s vehicle twice with his truck.
Elaine called 911 and reported Kent’s behavior. The 911 operator who received
Elaine’s call instructed Elaine to drive to the police station.
[5] When responding officers subsequently located Kent’s vehicle, Kent attempted
to evade arrest. In doing so, he struck two fully-marked police vehicles with his
vehicle. He also attempted to hit one of the officers by driving his vehicle
directly at the officer. One of the officers required medical treatment as a result
of Kent’s actions.
[6] On February 26, 2016, the State charged Kent in Cause Number 84D03-1602-
F1-589 (“Cause No. F1-589”) as follows: Count I–Level 1 felony attempted
murder, Count II–Level 3 felony attempted aggravated battery, Count III –
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 3 of 7 Level 5 felony attempted battery by means of a deadly weapon, Count IV–Level
6 felony criminal recklessness, Count V–Level 6 felony criminal recklessness,
Count VI–Level 6 felony criminal recklessness, Count VII–Level 6 felony
criminal recklessness, Count VIII–Level 6 felony criminal recklessness, Count
IX–Level 6 felony criminal recklessness, Count X–Level 6 felony resisting law
enforcement, and Count XI–Class B misdemeanor criminal mischief.3 In
addition, because Kent had been on probation under Cause Number 84D03-
1302-FD-557 (“Cause No. FD-557”) at the time he allegedly committed these
acts, the State also filed a notice of probation violation.
[7] On January 31, 2017, Kent pled guilty in Cause No. F1-589 to Counts II, V
through VIII, and X. In exchange for Kent’s guilty plea, the State agreed to
dismiss all remaining charges, included the attempted murder charge. Kent
also admitted to violating the terms of his probation in Cause No. FD-557. The
trial court accepted Kent’s guilty plea and, on May 22, 2017, sentenced Kent in
Cause No. F1-589 to an aggregate sixteen-year sentence with fourteen years
executed in the Department of Correction and two years suspended to
probation. This appeal follows.
Discussion and Decision
3 Counts I through III and Counts VIII through X related to Kent’s actions involving the responding police officers. Counts IV through VII and Count XI related to Kent’s actions involving Elaine and the children.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 4 of 7 [8] Kent contends that his sixteen-year sentence imposed in Cause No. F1-589 is
inappropriate.4 In challenging the appropriateness of his sentence, Kent
acknowledges that he “attempted to batter a police officer with his vehicle in
order to avoid being arrested after an altercation with his ex-girlfriend.”
Appellant’s Br. p. 6. However, he asserts that his sentence in inappropriate
because (1) he “abandoned his attempt, saving the officer from serious injury or
death,” (2) was “extremely remorseful about his actions,” and (3) “explained
that his drug addiction played a role in the commission of the crime.”
Appellant’s Br. p. 6.
[9] Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 08 2017, 10:47 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon J. Kent, November 8, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1706-CR-1367 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff. Judge Trial Court Cause Nos. 84D03-1602-F1-589 84D03-1302-FD-557
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 1 of 7 Case Summary [1] On February 26, 2016, Appellee-Plaintiff the State of Indiana (“the State”)
charged Appellant-Defendant Brandon J. Kent with numerous criminal
offenses in connection to a domestic altercation with his ex-girlfriend and
subsequent attempt to evade arrest. Kent eventually pled guilty to Level 3
felony attempted aggravated battery, four counts of Level 6 felony criminal
recklessness, and Level 6 felony resisting law enforcement. The trial court
accepted Kent’s guilty plea and, on May 22, 2017, sentenced him to an
aggregate term of sixteen years, with fourteen years executed and two years
suspended to probation. On appeal, Kent contends that his sentence is
inappropriate in light of the nature of his offense and his character. Concluding
otherwise, we affirm.
Facts and Procedural History1 [2] On February 22, 2016, Kent became engaged in an argument with his ex-
girlfriend, Elaine, during an exchange of the former couple’s children after Kent
had exercised parenting time with the children.2 Kent and Elaine had arranged
1 Given that few facts were included in the factual basis provided to the trial court during the guilty plea hearing, the parties rely on the facts presented in the “Affidavit of Probable Cause” in the fact patterns included in their appellate briefs. In order to provide factual context to the reader, we will do the same. 2 It appears that while Kent is the biological father of only one of the children, he was present in the second child’s life since her birth and exercised parenting time with that child as well.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 2 of 7 to meet in the lobby of the hotel where Elaine had been staying. However,
Kent did not have either of the children with him when he arrived.
[3] At Kent’s request, Elaine followed Kent to his apartment to pick up the
children. While en route to the apartment, Kent “began speeding up passing
[Elaine’s vehicle, slamming on his brakes and swerving at [Elaine’s] vehicle.”
Appellant’s App. Vol. II–Confidential, p. 107. When Elaine pulled into a
nearby parking lot, Kent threw a tire iron at her vehicle. Elaine did not
continue on to Kent’s apartment but, rather, returned to the hotel where she
had been staying.
[4] Kent eventually brought the children to Elaine. When Elaine attempted to
drive away with the children, Kent chased Elaine’s vehicle and struck her
windshield with a hatchet. He also struck Elaine’s vehicle twice with his truck.
Elaine called 911 and reported Kent’s behavior. The 911 operator who received
Elaine’s call instructed Elaine to drive to the police station.
[5] When responding officers subsequently located Kent’s vehicle, Kent attempted
to evade arrest. In doing so, he struck two fully-marked police vehicles with his
vehicle. He also attempted to hit one of the officers by driving his vehicle
directly at the officer. One of the officers required medical treatment as a result
of Kent’s actions.
[6] On February 26, 2016, the State charged Kent in Cause Number 84D03-1602-
F1-589 (“Cause No. F1-589”) as follows: Count I–Level 1 felony attempted
murder, Count II–Level 3 felony attempted aggravated battery, Count III –
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 3 of 7 Level 5 felony attempted battery by means of a deadly weapon, Count IV–Level
6 felony criminal recklessness, Count V–Level 6 felony criminal recklessness,
Count VI–Level 6 felony criminal recklessness, Count VII–Level 6 felony
criminal recklessness, Count VIII–Level 6 felony criminal recklessness, Count
IX–Level 6 felony criminal recklessness, Count X–Level 6 felony resisting law
enforcement, and Count XI–Class B misdemeanor criminal mischief.3 In
addition, because Kent had been on probation under Cause Number 84D03-
1302-FD-557 (“Cause No. FD-557”) at the time he allegedly committed these
acts, the State also filed a notice of probation violation.
[7] On January 31, 2017, Kent pled guilty in Cause No. F1-589 to Counts II, V
through VIII, and X. In exchange for Kent’s guilty plea, the State agreed to
dismiss all remaining charges, included the attempted murder charge. Kent
also admitted to violating the terms of his probation in Cause No. FD-557. The
trial court accepted Kent’s guilty plea and, on May 22, 2017, sentenced Kent in
Cause No. F1-589 to an aggregate sixteen-year sentence with fourteen years
executed in the Department of Correction and two years suspended to
probation. This appeal follows.
Discussion and Decision
3 Counts I through III and Counts VIII through X related to Kent’s actions involving the responding police officers. Counts IV through VII and Count XI related to Kent’s actions involving Elaine and the children.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 4 of 7 [8] Kent contends that his sixteen-year sentence imposed in Cause No. F1-589 is
inappropriate.4 In challenging the appropriateness of his sentence, Kent
acknowledges that he “attempted to batter a police officer with his vehicle in
order to avoid being arrested after an altercation with his ex-girlfriend.”
Appellant’s Br. p. 6. However, he asserts that his sentence in inappropriate
because (1) he “abandoned his attempt, saving the officer from serious injury or
death,” (2) was “extremely remorseful about his actions,” and (3) “explained
that his drug addiction played a role in the commission of the crime.”
Appellant’s Br. p. 6.
[9] Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
4 Kent does not challenge the 360-day sentence imposed by the trial court in Cause No. FD-557.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 5 of 7 [10] Kent limits his appropriateness challenge to the sentenced imposed for his
conviction for the Level 3 felony aggravated battery committed against the
responding police officer. Kent argues that the nature of this offense “was not
particularly egregious or among the worst of the worst.” Appellant’s Br. p. 8.
While Kent admitted that he attempted to batter the police officer with his
vehicle, he points to the fact that he “abandoned his attempt before striking the
police officer” and states that “[t]hankfully, the officer was not seriously
injured.” Appellant’s Br. p. 8. While we too are thankful that the officer was
not seriously injured, we cannot agree that Kent’s actions were not egregious.
Kent admitted that before “abandoning” his attempt, he attempted to batter the
officer with his vehicle in an effort to avoid arrest following his altercation with
his ex-girlfriend. We are also troubled by the fact that Kent’s interactions with
the officer were triggered by violent acts committed against his ex-girlfriend and
their children. We find Kent’s actions to be very serious and extremely
disturbing.
[11] As to Kent’s character, it reflects poorly that, in committing the instant offenses,
he endangered the lives of his children, his ex-girlfriend, and two separate
police officers. Kent also has a criminal history that includes the following
convictions: Class D felony possession of a controlled substances, Class A
misdemeanor possession of a controlled substance, Class A misdemeanor
possession of paraphernalia, and Class C misdemeanor failure to stop at the
scene of an accident resulting in damage. He also has two prior juvenile
adjudications for illegal consumption of an alcoholic beverage. In addition,
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 6 of 7 Kent has previously committed numerous probation violations and was on
probation at the time he committed the instant offenses. Kent was also found
to be a “MODERATE” risk to reoffend. Appellant’s App. Vol. II–
Confidential, p. 102. Furthermore, while it may reflect well on Kent’s character
that he expressed remorse for his actions, such remorse does not offset the
seriousness of his actions or change the fact that Kent engaged in these violent
actions while on probation for other unrelated criminal acts. Kent’s actions and
criminal history indicate that he has not only a disdain for the criminal justice
system, but also a disdain for the rights and safety of others, including his
children. Upon review, we conclude that Kent has failed to prove that his
sentence is inappropriate in light of the nature of his offenses and his character.
[12] The judgment of the trial court is affirmed.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A01-1706-CR-1367 | November 8, 2017 Page 7 of 7