MEMORANDUM DECISION FILED Oct 31 2017, 9:28 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Angela Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Carpenter, October 31, 2017
Appellant-Defendant, Court of Appeals Cause No. 28A01-1706-CR-1381 v. Appeal from the Greene Superior Court State of Indiana, The Honorable Dena A. Martin, Judge Appellee-Plaintiff. Trial Court Cause No. 28D01-1612- F6-224
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Brian Carpenter (Carpenter), appeals his two-year
sentence after he pled guilty to criminal confinement, a Level 6 felony, Ind.
Code § 35-42-3-3(a).
[2] We affirm.
ISSUE [3] Carpenter presents a single issue on appeal, which we restate as: Whether
Carpenter’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY [4] On November 10, 2016, Carpenter battered his wife, Connie Carpenter
(Connie), in a parking lot. Carpenter was arrested and the next day, under
Cause Number 28D01-1611-CM-000448 (CM-48), the State filed an
Information, charging Carpenter with domestic battery, a Class A
misdemeanor. On December 14, 2016, Carpenter was released from the Green
County Jail, and a no-contact order was issued prohibiting Carpenter from
having any contact with Connie. That same evening, Carpenter went to
Connie’s apartment located in Green County, Indiana. Carpenter entered
Connie’s residence without her consent and informed her that the no-contact
order had been dropped. Carpenter then held Connie down, and would not
allow her to leave her apartment. Carpenter also pushed Connie onto a bed,
and raised his fist as if he was going to hit her. He additionally pulled Connie’s Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 2 of 7 hair and forcefully grabbed her left arm, leaving a bruise on the bicep area. At
approximately 12:30 a.m. on December 15, 2016, Officer James Harrington
(Officer Harrington) of the Worthington Police Department was dispatched to
Connie’s apartment. By that time, Connie had escaped, but Carpenter was still
inside the apartment. When Officer Harrington entered Connie’s apartment, he
found Carpenter lying on a bed. Officer Harrington was forced to use his taser
on Carpenter because Carpenter refused to be handcuffed. Because Carpenter
refused to walk out of the residence, Officer Harrington had to drag him out.
During the arrest, Officer Harrington noticed that Carpenter had a strong odor
of alcohol emanating from his mouth. In addition, he noticed that Carpenter
had glassy and bloodshot eyes, and had urinated on himself. While outside,
Officer Harrington searched Carpenter’s pants pockets and found a Ziploc bag
containing several legend drug pills.
[5] On December 16, 2016, under Cause Number 28D01-1612-F6-000224 (F6-224)
the State filed an Information, charging Carpenter with Count I, residential
entry, a Level 6 felony, I.C.§ 35-43-2-1.5; Count II, criminal confinement, a
Level 6 felony, I.C.§ 35-42-3-3(a); Count III, invasion of privacy, a Class A
misdemeanor, I.C.§ 35-46-15.1(1); Count IV, domestic battery, a Class A
misdemeanor, I.C.§ 35-42-2-1.3(a)(1); Count V, unlawful possession or use of
legend drug, a Level 6 felony, I.C. § 16-42-19-13; and Count VI, refusal to aid
an officer, a Class B misdemeanor, I.C. § 35-44-1-3-3. On April 25, 2017,
pursuant to a plea agreement under Cause Number F6-224, Carpenter agreed to
plead guilty to Level 6 felony criminal confinement, and the State agreed to
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 3 of 7 dismiss all other Counts. On May 25, 2017, after a factual basis was
established, the trial court accepted Carpenter’s plea. That same day, the trial
court conducted a sentencing hearing. At the close of the evidence, the trial
court sentenced Carpenter to two years, with 161 days of credit time served, in
the Green County Jail.
[6] Carpenter now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] Carpenter claims that his two-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) empowers
us to independently review and revise sentences authorized by statute if, after
due consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case.
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 4 of 7 Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
[8] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 6 felony criminal confinement, Carpenter faced
a sentencing range of six months to two and one-half years, with the advisory
sentence being one year. I.C. § 35-50-2-7(b). Here, the trial court imposed a
two-year sentence.
[9] The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Carpenter argues that his offense against
his wife is not one of the most egregious. Carpenter additionally downplays the
seriousness of his offense by stating that Connie did not seek “medical
treatment after the accident, although the probable cause affidavit indicates
police photographed a bruise on her arm.” (Appellant’s Br. p. 10). The
circumstances of the offense are: Within a day after Carpenter was released
from the Green County Jail for the battery offense against Connie, he went to
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MEMORANDUM DECISION FILED Oct 31 2017, 9:28 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Angela Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Carpenter, October 31, 2017
Appellant-Defendant, Court of Appeals Cause No. 28A01-1706-CR-1381 v. Appeal from the Greene Superior Court State of Indiana, The Honorable Dena A. Martin, Judge Appellee-Plaintiff. Trial Court Cause No. 28D01-1612- F6-224
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Brian Carpenter (Carpenter), appeals his two-year
sentence after he pled guilty to criminal confinement, a Level 6 felony, Ind.
Code § 35-42-3-3(a).
[2] We affirm.
ISSUE [3] Carpenter presents a single issue on appeal, which we restate as: Whether
Carpenter’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY [4] On November 10, 2016, Carpenter battered his wife, Connie Carpenter
(Connie), in a parking lot. Carpenter was arrested and the next day, under
Cause Number 28D01-1611-CM-000448 (CM-48), the State filed an
Information, charging Carpenter with domestic battery, a Class A
misdemeanor. On December 14, 2016, Carpenter was released from the Green
County Jail, and a no-contact order was issued prohibiting Carpenter from
having any contact with Connie. That same evening, Carpenter went to
Connie’s apartment located in Green County, Indiana. Carpenter entered
Connie’s residence without her consent and informed her that the no-contact
order had been dropped. Carpenter then held Connie down, and would not
allow her to leave her apartment. Carpenter also pushed Connie onto a bed,
and raised his fist as if he was going to hit her. He additionally pulled Connie’s Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 2 of 7 hair and forcefully grabbed her left arm, leaving a bruise on the bicep area. At
approximately 12:30 a.m. on December 15, 2016, Officer James Harrington
(Officer Harrington) of the Worthington Police Department was dispatched to
Connie’s apartment. By that time, Connie had escaped, but Carpenter was still
inside the apartment. When Officer Harrington entered Connie’s apartment, he
found Carpenter lying on a bed. Officer Harrington was forced to use his taser
on Carpenter because Carpenter refused to be handcuffed. Because Carpenter
refused to walk out of the residence, Officer Harrington had to drag him out.
During the arrest, Officer Harrington noticed that Carpenter had a strong odor
of alcohol emanating from his mouth. In addition, he noticed that Carpenter
had glassy and bloodshot eyes, and had urinated on himself. While outside,
Officer Harrington searched Carpenter’s pants pockets and found a Ziploc bag
containing several legend drug pills.
[5] On December 16, 2016, under Cause Number 28D01-1612-F6-000224 (F6-224)
the State filed an Information, charging Carpenter with Count I, residential
entry, a Level 6 felony, I.C.§ 35-43-2-1.5; Count II, criminal confinement, a
Level 6 felony, I.C.§ 35-42-3-3(a); Count III, invasion of privacy, a Class A
misdemeanor, I.C.§ 35-46-15.1(1); Count IV, domestic battery, a Class A
misdemeanor, I.C.§ 35-42-2-1.3(a)(1); Count V, unlawful possession or use of
legend drug, a Level 6 felony, I.C. § 16-42-19-13; and Count VI, refusal to aid
an officer, a Class B misdemeanor, I.C. § 35-44-1-3-3. On April 25, 2017,
pursuant to a plea agreement under Cause Number F6-224, Carpenter agreed to
plead guilty to Level 6 felony criminal confinement, and the State agreed to
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 3 of 7 dismiss all other Counts. On May 25, 2017, after a factual basis was
established, the trial court accepted Carpenter’s plea. That same day, the trial
court conducted a sentencing hearing. At the close of the evidence, the trial
court sentenced Carpenter to two years, with 161 days of credit time served, in
the Green County Jail.
[6] Carpenter now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [7] Carpenter claims that his two-year sentence is inappropriate in light of the
nature of the offense and his character. Indiana Appellate Rule 7(B) empowers
us to independently review and revise sentences authorized by statute if, after
due consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing that both prongs of the inquiry favor a revision of his
sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we
regard a sentence as appropriate 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 a myriad of other considerations that come to light in a given case.
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 4 of 7 Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
[8] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 6 felony criminal confinement, Carpenter faced
a sentencing range of six months to two and one-half years, with the advisory
sentence being one year. I.C. § 35-50-2-7(b). Here, the trial court imposed a
two-year sentence.
[9] The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Carpenter argues that his offense against
his wife is not one of the most egregious. Carpenter additionally downplays the
seriousness of his offense by stating that Connie did not seek “medical
treatment after the accident, although the probable cause affidavit indicates
police photographed a bruise on her arm.” (Appellant’s Br. p. 10). The
circumstances of the offense are: Within a day after Carpenter was released
from the Green County Jail for the battery offense against Connie, he went to
Connie’s apartment, which was a violation of his no-contact order. While
heavily intoxicated, Carpenter entered Connie’s residence without her consent,
and once inside, he pulled her hair, forcefully grabbed her left arm, and pushed
her down on a bed which prevented her from leaving. Furthermore, after
Connie was able to escape, Carpenter remained inside Connie’s residence until
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 5 of 7 the police arrived and forced him out. We are not persuaded that the nature of
Carpenter’s offense warrants a reduction in the imposed sentence.
[10] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. While a record of arrests may not be used as
evidence of criminal history, it can be “relevant to the trial court’s assessment of
the defendant’s character in terms of the risk that he will commit another
crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). Carpenter’s criminal
convictions and record of arrests includes public intoxication, illegal possession
of alcoholic beverage, operating a vehicle while intoxicated (multiple), battery
resulting in bodily injury (multiple), obstruction of justice, criminal trespass
(multiple), and domestic battery. We note that almost all of Carpenter’s past
offenses, with the exception of a battery conviction, are alcohol related. While
committing the instant offense, Carpenter became intoxicated, then went to
Connie’s apartment, and proceeded to confine her and batter her. Carpenter
did this despite there being a no-contact order between him and Connie.
[11] At his sentencing hearing, Carpenter offered the trial court, and he again offers
us, information regarding his failing health. Specifically, Carpenter stated that
(1) in the past year, he had suffered a heart attack; (2) shortly before he was
arrested for the instant offense, he had a “backside” surgery “which did not go
well”; (3) he had lost “10 or 12 pounds” of weight before his guilty plea and
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 6 of 7 sentencing hearing; and (4) the doctor at the Green County Jail would not offer
him adequate medical treatment for his health problems. (Appellant’s Br. p.
11). We are unpersuaded by Carpenter’s request to have his sentence reduced
because of his failing health. There is no evidence in the record that supports a
notion that his heath issues prevented him from leading a law-abiding life.
Finally, Carpenter argues that he took responsibility when he pleaded guilty to
the offense of criminal confinement. However, Carpenter received a substantial
benefit by pleading guilty. In exchange for Carpenter’s plea of guilty, the State
dismissed two other felony charges and three misdemeanor charges.
Carpenter’s criminal history and prior stints in jail have not deterred him from
breaking the law. For all of the above reasons, Carpenter has failed to meet his
burden in persuading us that his sentence is inappropriate in light of his
CONCLUSION [12] In sum, we conclude that Carpenter’s sentence is appropriate in light of the
nature of the offense and his character.
[13] Affirmed.
[14] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 28A01-1706-CR-1381 | October 31, 2017 Page 7 of 7