MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 28 2020, 9:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Carah Rochester J.T. Whitehead Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Andrew Hoover, December 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1393 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-2001-F6-487
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 1 of 6 Case Summary [1] Brian Andrew Hoover (“Hoover”) challenges his sentence, following a plea
agreement, for criminal recklessness with a deadly weapon, as a Level 6 felony.1
The only issue he raises on appeal is whether his sentence is inappropriate in
light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History [3] On January 27, 2020, Dustin Hurley (“Hurley”) visited his grandparent’s home,
where Hoover also lived, to drop off prescription medication for his
grandfather. Hurley was Hoover’s nephew, and a “family squabble” took
place. Tr. at 16. Hurley’s grandmother hurried him out of the house, stating
that Hoover was in a bad mood. As Hurley drove away from the residence, he
observed Hoover exit the front door and fire a shotgun once at Hurley’s vehicle.
Hurley pulled over to check the vehicle and noticed no damage.
[4] Hoover’s neighbor called the police and told the responding officer that, after
Hurley left the residence, she witnessed Hoover step outside and fire a shotgun
towards Hurley’s vehicle. Police attempted to contact Hoover at the residence,
but he could not be located. Officers found the back door of the residence to be
1 Ind. Code § 35-42-2-2(a), (b)(1).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 2 of 6 unlocked and partially cracked. The officers also observed several firearms in
plain view, including a black shotgun behind the front door. With the use of an
unmanned aerial system, Hoover was located in a field east of the residence and
taken into custody. At the time, Hoover had served only three weeks of his
probation in another cause.
[5] On January 28, 2020, the State charged Hoover with criminal recklessness with
a deadly weapon, as a Level 6 felony. On May 5, Hoover entered into a plea
agreement with the State under which he agreed to plead guilty as charged. At
his June 3 guilty plea hearing, Hoover did so plead. On July 1, the trial court
entered judgment of conviction for the Level 6 felony and conducted a
sentencing hearing that same day. As mitigating factors, the trial court found
that Hoover pled guilty and had mental health conditions. The trial court
found five aggravating factors: (1) Hoover’s history of criminal behavior; (2)
Hoover was on probation in the past and had had petitions to revoke his
probation filed against him; (3) Hoover had had the opportunity for treatment
in the past and was unsuccessful; (4) Hoover was on probation at the time of
the offense; and (5) Hoover’s pre-trial conduct while in jail, which included jail
rule violations. Hoover’s criminal history includes convictions of: two counts
of possession of marijuana; public intoxication; criminal mischief; two counts
of resisting law enforcement; two counts of operating a vehicle while
intoxicated; attempted battery by bodily waste; and domestic battery.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 3 of 6 [6] The trial court sentenced Hoover to eighteen months, executed, in the
Department of Corrections (“DOC”).2 This appeal ensued.
Discussion and Decision [7] Hoover contends that his sentence for his Level 6 felony is inappropriate in light
of the nature of the offense and his character. Article 7, Sections 4 and 6 of the
Indiana Constitution “authorize[] independent appellate review and revision of
a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812
(Ind. Ct. App. 2007) (alteration in original). This appellate authority is
implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence
under Rule 7(B) requires the appellant to demonstrate that his sentence is
“inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867,
873 (Ind. Ct. App. 2007).
[8] 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 v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
2 Hoover was also ordered to serve the balance of his two-year sentence in another, separate cause for violation of probation, to be served consecutive to the sentence in this case. The sentence for the probation violation is not at issue in this appeal.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 4 of 6 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 factors that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather 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).
[9] We begin by noting that Hoover’s sentence for his Level 6 felony is within the
statutory sentencing range and is not at the highest level of the range. I.C. § 35-
50-2-7(b) (providing the sentencing range for a Level 6 felony is six months to
two and a half years, with an advisory sentence of one year).
[10] Moreover, our review of the record discloses nothing remarkable about the
nature of the offenses that would warrant revising Hoover’s sentence. “The
nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Zavala v. State,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 28 2020, 9:10 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Carah Rochester J.T. Whitehead Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Andrew Hoover, December 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1393 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-2001-F6-487
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 1 of 6 Case Summary [1] Brian Andrew Hoover (“Hoover”) challenges his sentence, following a plea
agreement, for criminal recklessness with a deadly weapon, as a Level 6 felony.1
The only issue he raises on appeal is whether his sentence is inappropriate in
light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History [3] On January 27, 2020, Dustin Hurley (“Hurley”) visited his grandparent’s home,
where Hoover also lived, to drop off prescription medication for his
grandfather. Hurley was Hoover’s nephew, and a “family squabble” took
place. Tr. at 16. Hurley’s grandmother hurried him out of the house, stating
that Hoover was in a bad mood. As Hurley drove away from the residence, he
observed Hoover exit the front door and fire a shotgun once at Hurley’s vehicle.
Hurley pulled over to check the vehicle and noticed no damage.
[4] Hoover’s neighbor called the police and told the responding officer that, after
Hurley left the residence, she witnessed Hoover step outside and fire a shotgun
towards Hurley’s vehicle. Police attempted to contact Hoover at the residence,
but he could not be located. Officers found the back door of the residence to be
1 Ind. Code § 35-42-2-2(a), (b)(1).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 2 of 6 unlocked and partially cracked. The officers also observed several firearms in
plain view, including a black shotgun behind the front door. With the use of an
unmanned aerial system, Hoover was located in a field east of the residence and
taken into custody. At the time, Hoover had served only three weeks of his
probation in another cause.
[5] On January 28, 2020, the State charged Hoover with criminal recklessness with
a deadly weapon, as a Level 6 felony. On May 5, Hoover entered into a plea
agreement with the State under which he agreed to plead guilty as charged. At
his June 3 guilty plea hearing, Hoover did so plead. On July 1, the trial court
entered judgment of conviction for the Level 6 felony and conducted a
sentencing hearing that same day. As mitigating factors, the trial court found
that Hoover pled guilty and had mental health conditions. The trial court
found five aggravating factors: (1) Hoover’s history of criminal behavior; (2)
Hoover was on probation in the past and had had petitions to revoke his
probation filed against him; (3) Hoover had had the opportunity for treatment
in the past and was unsuccessful; (4) Hoover was on probation at the time of
the offense; and (5) Hoover’s pre-trial conduct while in jail, which included jail
rule violations. Hoover’s criminal history includes convictions of: two counts
of possession of marijuana; public intoxication; criminal mischief; two counts
of resisting law enforcement; two counts of operating a vehicle while
intoxicated; attempted battery by bodily waste; and domestic battery.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 3 of 6 [6] The trial court sentenced Hoover to eighteen months, executed, in the
Department of Corrections (“DOC”).2 This appeal ensued.
Discussion and Decision [7] Hoover contends that his sentence for his Level 6 felony is inappropriate in light
of the nature of the offense and his character. Article 7, Sections 4 and 6 of the
Indiana Constitution “authorize[] independent appellate review and revision of
a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812
(Ind. Ct. App. 2007) (alteration in original). This appellate authority is
implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence
under Rule 7(B) requires the appellant to demonstrate that his sentence is
“inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867,
873 (Ind. Ct. App. 2007).
[8] 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 v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
2 Hoover was also ordered to serve the balance of his two-year sentence in another, separate cause for violation of probation, to be served consecutive to the sentence in this case. The sentence for the probation violation is not at issue in this appeal.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 4 of 6 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 factors that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather 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).
[9] We begin by noting that Hoover’s sentence for his Level 6 felony is within the
statutory sentencing range and is not at the highest level of the range. I.C. § 35-
50-2-7(b) (providing the sentencing range for a Level 6 felony is six months to
two and a half years, with an advisory sentence of one year).
[10] Moreover, our review of the record discloses nothing remarkable about the
nature of the offenses that would warrant revising Hoover’s sentence. “The
nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Zavala v. State,
138 N.E.3d 291, 301 (Ind. Ct. App. 2019) (quotation and citation omitted),
trans. denied. Here, Hoover fired a shotgun at his fleeing nephew. He then tried
to evade the police.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 5 of 6 [11] Nor does the nature of Hoover’s character warrant a sentence revision. “The
significance of a criminal history in assessing a defendant’s character and an
appropriate sentence varies based on the gravity, nature, and number of prior
offenses in relation to the current offense.” Denham v. State, 142 N.E.3d 514,
517 (Ind. Ct. App. 2020) (quotation and citation omitted), trans. denied. Hoover
has an extensive criminal history that includes crimes of violence. He also has
a history of probation violations and was serving a suspended sentence at the
time he committed the crime. In fact, Hoover continued to behave poorly even
while in jail awaiting trial on the current charges; he had several jail rule
violations. Hoover has been afforded treatment in the past but did not
successfully complete such treatment. His criminal history, on-going poor
behavior in jail, and failure to take advantage of past treatment opportunities
reflect poorly on his character.
[12] We cannot say that Hoover’s aggregate sentence of eighteen months
imprisonment for his Level 6 felony conviction is inappropriate in light of the
nature of the offense and his character.
[13] Affirmed.
Robb, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1393 | December 28, 2020 Page 6 of 6