MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 14 2019, 7:07 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office Attorney General Brooklyn, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brooke D. Shelton, March 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1261 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable William G. Sleva, Appellee-Plaintiff Judge Trial Court Cause No. 47D02-1710-F3-1590
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 1 of 7 Case Summary [1] Brooke Shelton was convicted of Level 3 felony aggravated battery for stabbing
a man with a knife. The trial court sentenced her to sixteen years, with thirteen
years to serve and three years suspended to probation. Shelton appeals her
sentence, arguing that it is inappropriate in light of the nature of her offense and
her character. We disagree and affirm.
Facts and Procedural History [2] In May 2016, Shelton started dating Rebecca Nunn. The two were still together
when, in September 2017, Rebecca began seeing her neighbor, Matthew
Lawson. Suffice it to say, Shelton and Matthew did not get along. In the early
morning hours of October 17, 2017, Shelton went to Rebecca’s house. Rebecca
went outside to talk to Shelton on the front porch. While they were on the
porch, Matthew left his house and walked toward Rebecca’s house, leading to a
violent altercation between Shelton and Matthew. Shelton stabbed Matthew in
the back and the side, and Matthew inflicted various injuries on Shelton. The
State charged Shelton with Level 3 felony aggravated battery and Level 5 felony
battery with a deadly weapon but did not charge Matthew with a crime.
[3] A jury trial was scheduled for March 2018, and Shelton filed a notice that she
intended to claim self-defense. At trial, the State presented evidence that as
Matthew approached the porch Shelton “jumped up” from her seat and
“lunged” at him with a knife in her hand, Tr. Vol. IV pp. 135-37, that Shelton
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 2 of 7 stabbed Matthew in the back, and that Matthew fought back, resulting in the
injuries to Shelton (and the stab wound to Matthew’s side). Shelton offered a
very different version of events, testifying that Matthew tackled her to the
ground and started beating her, prompting her to take her knife out of her
pocket and stab him in self-defense.
[4] The jury rejected Shelton’s claim of self-defense and found her guilty as
charged. The trial court merged the battery-with-a-deadly-weapon count into
the aggravated-battery count. In sentencing Shelton on the aggravated-battery
conviction, the trial court identified one aggravating circumstance—Shelton’s
criminal history—and no mitigating circumstances. The court imposed a
sentence of sixteen years, with thirteen years to serve and three years suspended
to probation.
[5] Shelton now appeals, challenging her sentence but not her conviction.
Discussion and Decision [6] Shelton contends that her sentence is inappropriate and asks us to revise it
pursuant to Indiana Appellate Rule 7(B), which provides that an appellate 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.” “Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 3 of 7 factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391
(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants have the burden of persuading us that their sentences are
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[7] We begin by addressing Shelton’s repeated assertion that she received the
“maximum sentence” for Level 3 felony aggravated battery. Appellant’s Br. pp.
4, 5, 11, 12, 16, 17. That is incorrect. Indiana Code section 35-50-2-5 provides
that a person who commits a Level 3 felony “shall be imprisoned for a fixed
term of between three (3) and sixteen (16) years, with the advisory sentence
being nine (9) years.” As such, the maximum sentence for a Level 3 felony is a
sentence of sixteen years in prison. Here, the trial court imposed a sentence of
sixteen years, but it suspended three of those years to probation, meaning that
Shelton will have to serve thirteen years in prison (minus credit time), not
sixteen years, if she does not violate the terms of her probation. That is not the
maximum sentence. See Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct.
App. 2009) (“[F]or purposes of Rule 7(B) review, a maximum sentence is not
just a sentence of maximum length, but a fully executed sentence of maximum
length.”), trans. denied; see also Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010) (“We decline to narrowly interpret the word ‘sentence’ in Appellate Rule
7 to constrict appellate courts to consider only the appropriateness of the
aggregate length of the sentence without considering also whether a portion of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 4 of 7 the sentence is ordered suspended or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.”).
[8] With that in mind, we address the nature of Shelton’s offense and her character.
Shelton does not dispute that this was a serious crime with serious
consequences. When Shelton saw Matthew approaching, she “jumped up”
from her seat, “lunged” at Matthew with a knife in her hand, and stabbed him
in the back. As a result of the attack, Matthew had to be airlifted to a hospital
and, according to his victim-impact statement, had to be hospitalized twice
more in the months that followed, had to have emergency surgery, and “almost
died.” Appellant’s App. Vol. II p. 212.
[9] Nor does Shelton dispute that her lengthy criminal history reflects poorly on her
character. Most notably, this was not the first time Shelton stabbed someone.
In 2013, she was convicted of Class D felony criminal recklessness after
stabbing her stepfather. She claims that she did so in self-defense, but the felony
conviction suggests otherwise. In addition to that conviction, Shelton had two
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 14 2019, 7:07 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office Attorney General Brooklyn, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brooke D. Shelton, March 14, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1261 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable William G. Sleva, Appellee-Plaintiff Judge Trial Court Cause No. 47D02-1710-F3-1590
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 1 of 7 Case Summary [1] Brooke Shelton was convicted of Level 3 felony aggravated battery for stabbing
a man with a knife. The trial court sentenced her to sixteen years, with thirteen
years to serve and three years suspended to probation. Shelton appeals her
sentence, arguing that it is inappropriate in light of the nature of her offense and
her character. We disagree and affirm.
Facts and Procedural History [2] In May 2016, Shelton started dating Rebecca Nunn. The two were still together
when, in September 2017, Rebecca began seeing her neighbor, Matthew
Lawson. Suffice it to say, Shelton and Matthew did not get along. In the early
morning hours of October 17, 2017, Shelton went to Rebecca’s house. Rebecca
went outside to talk to Shelton on the front porch. While they were on the
porch, Matthew left his house and walked toward Rebecca’s house, leading to a
violent altercation between Shelton and Matthew. Shelton stabbed Matthew in
the back and the side, and Matthew inflicted various injuries on Shelton. The
State charged Shelton with Level 3 felony aggravated battery and Level 5 felony
battery with a deadly weapon but did not charge Matthew with a crime.
[3] A jury trial was scheduled for March 2018, and Shelton filed a notice that she
intended to claim self-defense. At trial, the State presented evidence that as
Matthew approached the porch Shelton “jumped up” from her seat and
“lunged” at him with a knife in her hand, Tr. Vol. IV pp. 135-37, that Shelton
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 2 of 7 stabbed Matthew in the back, and that Matthew fought back, resulting in the
injuries to Shelton (and the stab wound to Matthew’s side). Shelton offered a
very different version of events, testifying that Matthew tackled her to the
ground and started beating her, prompting her to take her knife out of her
pocket and stab him in self-defense.
[4] The jury rejected Shelton’s claim of self-defense and found her guilty as
charged. The trial court merged the battery-with-a-deadly-weapon count into
the aggravated-battery count. In sentencing Shelton on the aggravated-battery
conviction, the trial court identified one aggravating circumstance—Shelton’s
criminal history—and no mitigating circumstances. The court imposed a
sentence of sixteen years, with thirteen years to serve and three years suspended
to probation.
[5] Shelton now appeals, challenging her sentence but not her conviction.
Discussion and Decision [6] Shelton contends that her sentence is inappropriate and asks us to revise it
pursuant to Indiana Appellate Rule 7(B), which provides that an appellate 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.” “Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 3 of 7 factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391
(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants have the burden of persuading us that their sentences are
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[7] We begin by addressing Shelton’s repeated assertion that she received the
“maximum sentence” for Level 3 felony aggravated battery. Appellant’s Br. pp.
4, 5, 11, 12, 16, 17. That is incorrect. Indiana Code section 35-50-2-5 provides
that a person who commits a Level 3 felony “shall be imprisoned for a fixed
term of between three (3) and sixteen (16) years, with the advisory sentence
being nine (9) years.” As such, the maximum sentence for a Level 3 felony is a
sentence of sixteen years in prison. Here, the trial court imposed a sentence of
sixteen years, but it suspended three of those years to probation, meaning that
Shelton will have to serve thirteen years in prison (minus credit time), not
sixteen years, if she does not violate the terms of her probation. That is not the
maximum sentence. See Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct.
App. 2009) (“[F]or purposes of Rule 7(B) review, a maximum sentence is not
just a sentence of maximum length, but a fully executed sentence of maximum
length.”), trans. denied; see also Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010) (“We decline to narrowly interpret the word ‘sentence’ in Appellate Rule
7 to constrict appellate courts to consider only the appropriateness of the
aggregate length of the sentence without considering also whether a portion of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 4 of 7 the sentence is ordered suspended or otherwise crafted using any of the variety
of sentencing tools available to the trial judge.”).
[8] With that in mind, we address the nature of Shelton’s offense and her character.
Shelton does not dispute that this was a serious crime with serious
consequences. When Shelton saw Matthew approaching, she “jumped up”
from her seat, “lunged” at Matthew with a knife in her hand, and stabbed him
in the back. As a result of the attack, Matthew had to be airlifted to a hospital
and, according to his victim-impact statement, had to be hospitalized twice
more in the months that followed, had to have emergency surgery, and “almost
died.” Appellant’s App. Vol. II p. 212.
[9] Nor does Shelton dispute that her lengthy criminal history reflects poorly on her
character. Most notably, this was not the first time Shelton stabbed someone.
In 2013, she was convicted of Class D felony criminal recklessness after
stabbing her stepfather. She claims that she did so in self-defense, but the felony
conviction suggests otherwise. In addition to that conviction, Shelton had two
juvenile adjudications (theft in 2002 and alcohol consumption in 2003) and
eleven misdemeanor convictions (public intoxication in 2005, trespass in 2006
(reduced from felony residential entry), public intoxication in 2009, operating
while intoxicated in 2010, criminal conversion in 2010 (reduced from felony
theft), resisting law enforcement in 2011, public intoxication in 2014, trespass in
2015, visiting a common nuisance and possession of paraphernalia in 2016, and
theft in 2017). Shelton also had numerous probation violations in relation to
those convictions, including the conviction for the earlier stabbing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 5 of 7 [10] Nonetheless, Shelton argues that her sentence is inappropriate for two reasons.
First, she asserts that Matthew provoked her to attack. She does not cite any
actual trial testimony in support of this assertion. Even Shelton did not testify
that Matthew provoked her—she testified that Matthew violently attacked her
and that she stabbed him in self-defense, a claim that the jury rejected. Still,
Shelton contends that “the jury did not believe that [she] acted without
provocation.” Appellant’s Br. p. 16. In support of this claim, she cites her own
attorney’s closing argument at the sentencing hearing. There, her attorney
noted that, after trial, a juror remarked that the prosecutor “didn’t charge
enough people.” Tr. Vol. VI p. 164. Needless to say, the fact that a juror
believed that Matthew should have been charged with something does not
mean that the jury, as a whole, believed that Matthew provoked Shelton.
[11] Shelton’s primary argument, though, is that she has experienced significant
trauma that explains both her actions in this case and her criminal history. She
says that her mother was an addict who paid little attention to her and who was
abusive and dated abusive men; that her biological father was in prison for most
of her life and raped her when she was 10 or 11 and again when she was 21 or
22; that her stepfather was very abusive and once shot at her mother with a
shotgun; that her family moved frequently and that she attended seven different
schools before she was expelled during her freshman year in high school; and
that she was diagnosed with ADD, bipolar disorder, and depression. She says
that she started experimenting with alcohol and marijuana when she was 10,
that she later abused Xanax and started using cocaine and meth, and that she
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 6 of 7 used drugs daily from the time she was 16 until the time of the attack on
Matthew. She says that one of her drug suppliers, with whom she was living at
the time, fired a gun at her. She says that she was diagnosed with PTSD after
stabbing her stepfather. Shelton contends that her criminal history “reflected
her serious addiction to drugs and her abusive relationship with her stepfather,”
Appellant’s Br. p. 12, and that she perceived Matthew as a threat and
overreacted because of her history of being abused by men.
[12] We agree with the trial court that the past Shelton describes is horrific. Tr. Vol.
VI p. 169 (“[I]t clearly has been chaotic, and a life, if all true, no one would
want to go through[.]”). However, we also agree with the trial court’s
conclusion that Shelton’s past, “in and of itself, does not, in any way, justify
what the jury found was a non-defense-related attack on this victim with a
knife, causing substantial injury.” Id. The purpose of 7(B) review is to “leaven
the outliers.” Cardwell, 895 N.E.2d at 1225. Given the seriousness of Shelton’s
crime, her prior felony conviction for a stabbing and her other criminal history,
and her failure to take advantage of previous opportunities for rehabilitation,
her above-advisory sentence of sixteen years with three years suspended is not
an outlier.
[13] Affirmed.
Mathias, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1261 | March 14, 2019 Page 7 of 7