Charles A. Pickering v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 10, 2018
• Docket: 71A03-1711-CR-2785
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 10 2018, 6:00 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 Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles A. Pickering, August 10, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1711-CR-2785 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1704-F3-24

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 1 of 6 Statement of the Case [1] Charles Pickering appeals his sentence following his convictions for rape, as a

Level 3 felony, and battery, as a Level 6 felony. He presents a single issue for

our review, namely, whether his maximum sentence is inappropriate in light of

the nature of the offenses and his character. We affirm.

Facts and Procedural History [2] On January 11, 2017, Pickering met S.B., a sixty-three-year-old homeless

woman, at a shelter in South Bend, and he invited her to come with him to an

apartment where he was staying. Pickering and S.B. drank some beer and

vodka, and then Pickering started to undress. S.B. told Pickering that she did

not want to have sex with him, but he grabbed her hair and forced her to

perform fellatio on him. Pickering hit S.B. hard in the face multiple times. S.B.

tried to push him away, and he eventually backed off. Approximately fifteen

minutes later, Pickering called S.B. a “b****” and forcibly removed her clothes.

Tr. Vol. II at 112. S.B. repeatedly told him “No,” but he attempted to have

anal sex with her. Id. When that was unsuccessful, Pickering forcibly

penetrated S.B.’s vagina with his penis. All the while, Pickering was pulling

S.B.’s hair and hitting her, and S.B. was telling him to stop.

[3] At some point, S.B. was able to dial 9-1-1 on her cell phone, but Pickering

grabbed her phone and threw it out of a window. S.B. finally made her way out

of the apartment, and she found a South Bend Police Officer. After she

informed the police officer of what had occurred, she was taken to a hospital

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 2 of 6 where she was examined and treated for her several injuries. Officers then

obtained a warrant, found Pickering in the apartment, and arrested him.

[4] The State charged Pickering with three counts of rape, as Level 3 felonies, and

one count of battery, as a Level 6 felony. A jury found Pickering guilty of one

count of rape and battery but acquitted him on the other two counts of rape.

Following a sentencing hearing, the trial court sentenced Pickering to

consecutive executed sentences of sixteen years for the Level 3 felony and two

and one-half years for the Level 6 felony, for an aggregate sentence of eighteen

and one-half years. This appeal ensued.

Discussion and Decision [5] Pickering asserts that his sentence is inappropriate in light of the nature of the

offenses and his character. As we have explained:

Indiana Appellate Rule 7(B) permits an Indiana appellate court to “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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 3 of 6 [6] Here, the trial court imposed the maximum possible, fully executed sentence on

each conviction and ordered that the sentences run consecutively. Pickering

contends that the nature of the offenses does not support “the absolute

maximum allowed by law,” and he asks that we revise his aggregate sentence

down to twelve years. Appellant’s Br. at 10. And he asserts that his sentence is

inappropriate in light of his character because his criminal history does not

support the sentence imposed and because he has mental health and substance

abuse issues. Pickering maintains that he is not “the worst of the worst” and

does not, therefore, deserve the maximum sentence. Id. at 9.

[7] We first address Pickering’s contention that he is not “the worst of the worst.”

Id. As we have observed,

[a]lthough the maximum possible sentences are generally most appropriate for the worst offenders, this rule is not an invitation to determine whether a worse offender could be imagined, as it is always possible to identify or hypothesize a significantly more despicable scenario, regardless of the nature of any particular offense and offender.

Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). By stating that

maximum sentences are ordinarily appropriate for the “worst offenders,” we

refer generally to the class of offenses and offenders that warrant the maximum

punishment, which encompasses a considerable variety of offenses and

offenders. Id. Accordingly, “[w]e concentrate less on comparing the facts of

this case 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 4 of 6 sentenced, and what it reveals about the defendant’s character.” Wells v. State,

904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.

[8] Here, regarding the nature of the offenses, Pickering acknowledges that rape “is

a serious offense which by its very nature carries with it emotional and physical

trauma to the victim.” Id. Further, S.B. testified that she feared for her life

during the attack. We cannot say that the nature of the offenses does not

support the maximum sentence.

[9] Regarding his character, Pickering’s criminal history includes twenty-two prior

convictions, including three felony burglary convictions, and probation

violations. Pickering suggests that, because his previous crimes “are mostly

misdemeanor convictions” and are “dissimilar” and not “close in proximity” to

the instant offenses, “the weight to which [his] criminal history should be given

is much less than what the trial court focused upon.” Id. at 8. But the sheer

number of convictions, coupled with probation violations, shows Pickering’s

consistent inability to lead a law-abiding life. Regarding his alleged mental

illness, beyond a statement in his presentence investigation report that he has

suffered from manic depression for many years, Pickering does not direct us to

any evidence to support his claim that he is mentally ill. And Pickering does

not explain how his history of substance abuse and consumption of alcohol on

the day of the offenses reflects positively on his character. We cannot say that

Pickering’s aggregate eighteen and one-half years executed sentence is

inappropriate in light of the nature of the offenses and his character, and we

affirm his sentence.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 5 of 6 [10] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2785 | August 10, 2018 Page 6 of 6