Brandon M. Newell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 28, 2018
• Docket: 27A04-1708-CR-1850
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 28 2018, 6:30 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 William T. Myers Curtis T. Hill, Jr. Grant County Public Defender Attorney General of Indiana Marion, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon M. Newell, March 28, 2018 Appellant-Defendant, Court of Appeals Case No. 27A04-1708-CR-1850 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1609-F2-15

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 1 of 8 Case Summary and Issue [1] Following a jury trial, Brandon Newell was convicted of burglary, a Level 2

felony; armed robbery and criminal confinement, both Level 3 felonies;

unlawful possession of a firearm by a serious violent felon, a Level 4 felony;

and intimidation and battery by means of a deadly weapon, both Level 5

felonies. The jury also found Newell to be an habitual offender. The trial court

sentenced Newell to a total of fifty years, thirty years for the Level 2 burglary

conviction, enhanced by twenty years for the habitual offender adjudication.

The sentences for the remaining crimes were ordered to be served concurrently

with the Level 2 felony sentence. Newell appeals, raising the sole issue of

whether his sentence is inappropriate in light of the nature of his offense and his

character. Concluding Newell’s sentence is not inappropriate, we affirm.

Facts and Procedural History [2] On September 24, 2016, Jesus Martinez was on his front porch with his two-

year-old son when a person, later identified as Newell, approached him and

asked him for a cigarette. After he provided Newell with a cigarette, Martinez

turned around and saw that Newell “ha[d] my son and a pistol.” Transcript,

Volume 2 at 54. Newell told Martinez to go in the house and said “he was

gonna kill me and my son” if Martinez did not comply. Id. at 58. After they

entered the house, Newell struck Martinez in the head with the pistol and took

his cell phone and wallet. Newell again threatened to kill Martinez and his son

if Martinez did not give him more money. Eventually, Newell threw

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 2 of 8 Martinez’s son back to him, threatened to kill him if he called the police, took

Martinez’s bike off the front porch, and rode off. Martinez chased Newell in

his car and Newell subsequently abandoned the bicycle and ran off on foot.

Martinez saw a Chrysler 300 speed down the street, stop, and pick up Newell.

Martinez chased this vehicle until Newell got out and ran behind a house.

Martinez then returned home and eventually contacted police. Martinez later

identified Newell from a photo array assembled by police.

[3] The State charged Newell with burglary, armed robbery, criminal confinement,

unlawful possession of a firearm by a serious violent felon, intimidation, and

battery by means of a deadly weapon. The State also alleged Newell was an

habitual offender. A jury found him guilty of all charges and also found him to

be an habitual offender. At sentencing, Newell asked to be placed in a

Purposeful Incarceration program in order to prepare him for life after

incarceration. With respect to sentencing, the trial court stated:

As far as the aggravating circumstances in this case . . . one would be the Defendant’s prior criminal and juvenile history as set forth in the Pre-Sentence Investigation Report. All of it is concerning to the Court, but most relevant, related and troubling are the Defendant’s multiple burglaries as a juvenile, two armed robbery convictions in 2002, battery resulting in serious bodily injury in 2006. Soon after being released from incarceration in October of 2009, he committed another armed robbery in January of 2011 and was adjudicated to be an habitual offender. Then less than fifty days after his release from the Department of Corrections [sic] in August of 2016, he committed Counts 1 through 6 in the case before the Court today. Also troubling to the Court is the fact that this [is] the Defendant’s second

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 3 of 8 adjudication as an habitual offender. The criminal history amounts to almost a twenty year pattern of violence, use of weapons, threats, and forcibly taking other people’s property. . . . Second aggravating circumstance is the victim of Count 3 was [a] child less than three years of age. Third aggravator is the remaining counts other than Count 3, were knowingly committed in the presence of this same small child. The fourth aggravating circumstance is that at the time the Defendant committed these offenses, he was on probation in two different cases for separate armed robberies.[1] I do not find that there are any mitigating circumstances in this case.

[4] Tr., Vol. 4 at 101-03. The trial court sentenced Newell to thirty years executed

for burglary enhanced by twenty years for the habitual offender finding, sixteen

years for armed robbery, sixteen years for criminal confinement, twelve years

for unlawful possession of a firearm by a serious violent felon, six years for

intimidation, and six years for battery by means of a deadly weapon, all to be

served concurrently with the burglary sentence for an aggregate sentence of fifty

years. Newell now appeals his sentence.

Discussion and Decision I. Standard of Review [5] Indiana Appellate Rule 7(B) provides, “[t]he Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

1 Newell’s probation in these two cases was revoked and the trial court also sentenced him for the probation violations during the sentencing hearing in this case.

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 4 of 8 Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Whether a sentence is regarded as

inappropriate turns on “the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). A

sentence review under Indiana Appellate Rule 7(B) is “very deferential to the

trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). This “deference

should prevail 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). The defendant bears the burden to persuade this court

that the sentence is inappropriate. Sandleben v. State, 29 N.E.3d 126, 136 (Ind.

Ct. App. 2015), trans. denied. The analysis is “not to determine whether another

sentence is more appropriate but rather whether the sentence imposed is

inappropriate.” Conley, 972 N.E.2d at 876 (quotation omitted).

II. Inappropriate Sentence [6] Newell does not challenge the length of the sentence imposed by the trial court.

Instead, he challenges the sentence as inappropriate because it “failed to include

a recommendation for purposeful incarceration . . . .” Brief of Appellant at 8.

Purposeful Incarceration is a project where the Department of Correction

(“DOC”) “works in collaboration with Judges who can sentence chemically

addicted offenders and document that they will ‘consider a sentence

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 5 of 8 modification’ should the offender successfully complete [a] . . . Therapeutic

community.” Therapeutic communities “provide intensive substance abuse

treatment . . . that hold the offenders highly accountable.” Purposeful

Incarceration, https://www.in.gov/idoc/2798.htm (last visited Mar. 15, 2018).

[7] The place where a sentence is to be served is subject to review under Rule 7(B).

Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, “it will be quite

difficult for a defendant to prevail on a claim that the placement of his or her

sentence is inappropriate.” Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App.

2007). Newell does not challenge his placement in the DOC, but rather

challenges the lack of a recommendation that he is eligible for the Purposeful

Incarceration program in the DOC. This underscores that the trial court cannot

order the DOC to place an offender in the Purposeful Incarceration program,

but can only alert the DOC to appropriate candidates. See Purposeful

Incarceration Details, http://www.in.gov/idoc/2798.htm (last visited Mar. 15,

2018) (“The Courts communicate with the [DOC] that this offender is a

[Purposeful Incarceration] offender.”). The program then assesses Purposeful

Incarceration offenders and only admits persons who meet the substance abuse

admission criteria. Id. The record does show that Newell asked the trial court

to recommend purposeful incarceration, but does not establish that he is a

chemically addicted offender. Instead, Newell argues that “[i]n light of his

character as an individual who has been incarcerated for a long period of time

of his life without the proper education on how to live in free society this should

have been viewed as an appropriate case of recommending Purposeful

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 6 of 8 Incarceration.” Brief of Appellant at 11 (emphasis added). On appeal,

however, we do not decide “whether another sentence is more appropriate but

rather whether the sentence imposed is inappropriate.” Conley, 972 N.E.2d at

876 (quotation omitted). Although the trial court did not specifically address

Newell’s request for Purposeful Incarceration, we have stated that “it is absurd

to conclude that the General Assembly could have intended that all DOC

inmates be entitled to substance abuse treatment regardless of whether they in

fact suffer from substance abuse.” Cohn v. Strawhorn, 721 N.E.2d 342, 348-49

(Ind. Ct. App. 1999), trans. denied. Having failed to show that he meets the

criteria for recommendation to the program, Newell has failed to show that his

placement in the DOC without such recommendation is inappropriate.

[8] More generally, Newell does little to explain why his sentence is inappropriate

in light of the nature of his offense or his character. For the purpose of 7(B)

review, “[t]he nature of the offense is found in the details and circumstances of

the commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct.

App. 2015), trans denied. The record reveals that in carrying out these offenses,

Newell held a gun to the head of a two-year-old child, threatened to murder the

child and his father, and hit the child’s father in the head with a gun, causing

him to bleed, while still in the presence of the child. At sentencing, the trial

court noted the involvement of the child in two of the five aggravating factors.

We also believe Newell’s conduct to be particularly egregious in light of the

involvement of a young child. Therefore, we cannot say that Newell’s sentence

is inappropriate in light of the nature of his offenses.

Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 7 of 8 [9] In considering the character of the offender, it is “shown by the offender’s life

and conduct.” Id. Newell has an extensive criminal history as both a juvenile

and as an adult, including multiple convictions for armed robbery. At

sentencing, the trial court noted that Newell’s criminal history “amounts to

almost a twenty year pattern of violence, use of weapons, threats, and forcibly

taking other people’s property.” Tr., Vol. 4 at 102. Newell was out of prison

for less than two months before committing this armed robbery, while still on

probation for two other offenses of armed robbery. Considering Newell’s

criminal history, we cannot say his fifty-year sentence is inappropriate in light

of the nature of his character.

[10] Newell has not met his burden of convincing us that his placement in DOC

without a Purposeful Incarceration recommendation is inappropriate because

he has failed to show that he qualifies as a candidate for the program in the first

place. As for the length of Newell’s sentence, it is not inappropriate in light of

the nature of Newell’s crimes and his character.

Conclusion [11] Newell’s sentence is not inappropriate in light of the nature of the offense and

his character. We therefore affirm his sentence of fifty years to be executed in

the Department of Correction.

[12] Affirmed.

Crone, J., and Bradford, J., concur. Court of Appeals of Indiana | Memorandum Decision 27A04-1708-CR-1850 | March 28, 2018 Page 8 of 8