MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 04 2015, 8:35 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Charles B. Jones, December 4, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-291 v. Appeal from the Allen Superior Court 4 State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D04-1502-F5-32
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 1 of 6 [1] Charles B. Jones was convicted of Battery1 as a Level 5 felony and sentenced to
the maximum term of six years.2 On appeal, Jones argues that his sentence is
inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On February 3, 2015, Dane Hinsey, a confinement officer with the Allen
County Sheriff’s Department, was on duty monitoring the J-block at the Allen
County Jail, which houses inmates who have medical conditions or who are
extremely intoxicated or withdrawing from drugs and alcohol. Inmates housed
in the J-block have to be observed every hour. Additionally, one time each
shift, a jail nurse has to make contact with each inmate housed in the J-block.
[4] At approximately 3:00 p.m. on February 3, Officer Hinsey and Deborah Bolen,
a jail nurse, were making rounds through the J-block. When they reached
Jones’s cell, Nurse Bolen looked through the window on the cell door and
observed Jones lying on the bottom bunk, with a blanket pulled up covering his
face. Nurse Bolen knocked on the window to Jones’s cell twice in an effort to
get Jones’s attention, but Jones did not respond. At that point, Officer Hinsey
knocked on the window and attempted to speak with Jones. According to
1 Ind. Code § 35-42-2-1(b)(1), (f)(5)(A). 2 Ind. Code § 35-50-2-6(b) (“[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years”).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 2 of 6 Jones, he responded by saying “what.” Transcript at 192. Officer Hinsey did
not hear Jones’s response and detected no movement from Jones. Believing
that Jones was unresponsive, Officer Hinsey opened the door and entered
Jones’s cell. Officer Hinsey then used his set of keys to tap against the metal
bunk bed, creating a loud “clanking” sound in an effort to get Jones’s attention.
Id. at 110. Jones testified that he heard Officer Hinsey enter his cell, but did not
respond. Officer Hinsey then removed the blanket that was covering most of
Jones’s head, at which point, Jones jumped out of bed “very aggressively,”
stood face-to-face with Officer Hinsey, and yelled “what the fuck is your
problem”. Id.
[5] Jones then pushed his way past Officer Hinsey as he left his cell and entered the
day room for J-block, a larger area just outside the cell. At that time, J-block
was on lockdown due to the fact that there was a maintenance person in the cell
block repairing a water leak. Officer Hinsey radioed for back-up and then
followed Jones into the day room. Jones balled up his fists in a fighting posture
and backed away from Officer Hinsey. When Jones refused to comply with
Officer Hinsey’s direct order to get on the floor, Officer Hinsey attempted to
secure Jones. Jones responded by throwing punches at Officer Hinsey and
trying to further engage in a fight by grabbing his uniform. Jones eventually
grabbed Officer Hinsey around the waist and took him to the ground, causing
Officer Hinsey to strike his head on the concrete floor. With assistance from
other officers, Officer Hinsey eventually secured Jones.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 3 of 6 [6] The State charged Jones with battery on a public safety official as a Level 5
felony. A jury trial was held on April 7, 2015, at the conclusion of which the
jury found Jones guilty as charged. The trial court held a sentencing hearing on
April 27, 2015. After reviewing the pre-sentence investigation report (PSI) and
considering arguments of counsel, the trial court sentenced Jones to six years
imprisonment. Jones now appeals, challenging the sentence imposed.
Discussion & Decision
[7] Jones argues that his six-year executed sentence is inappropriate. Indiana
Appellate Rule 7(B) provides: “The 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.” See also Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct.
App. 2012). “Sentencing review under Appellate Rule 7(B) is very deferential
to the trial court.” Schaadt v. State, 30 N.E.3d 1, 4 (Ind. Ct. App. 2015). When
reviewing a sentence, our principal role is to leaven the outliers rather than
necessarily achieve what is perceived as the correct result. Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “We do not look to determine if the sentence
was appropriate; instead we look to make sure the sentence was not
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Jones bears
the burden of persuading the court that his sentence is inappropriate. See
Davis, 971 N.E.2d at 725.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 4 of 6 [8] We begin by considering the nature of the offense. While incarcerated in the
Allen County Jail on another crime, Jones’s refusal to respond to the jail nurse
and Officer Hinsey escalated into a physical confrontation with Officer Hinsey.
Jones, who had readied himself in a fighting stance, threw punches at Officer
Hinsey and eventually grabbed Officer Hinsey around the waist and took him
to the floor. The nature of the offense shows no restraint by Jones. Rather,
Jones acted in a very aggressive manner and with little regard for the safety and
well-being of Officer Hinsey, Nurse Bolen, or others present during the
altercation. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (noting that
when considering the nature of the offense, courts can consider whether the
offense was accompanied by “restraint, regard, and lack of brutality”).
[9] With regard to his character, Jones acknowledges that at the young age of
twenty-four, he has accumulated an extensive criminal history that spans two
states.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 04 2015, 8:35 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Charles B. Jones, December 4, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-291 v. Appeal from the Allen Superior Court 4 State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D04-1502-F5-32
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 1 of 6 [1] Charles B. Jones was convicted of Battery1 as a Level 5 felony and sentenced to
the maximum term of six years.2 On appeal, Jones argues that his sentence is
inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On February 3, 2015, Dane Hinsey, a confinement officer with the Allen
County Sheriff’s Department, was on duty monitoring the J-block at the Allen
County Jail, which houses inmates who have medical conditions or who are
extremely intoxicated or withdrawing from drugs and alcohol. Inmates housed
in the J-block have to be observed every hour. Additionally, one time each
shift, a jail nurse has to make contact with each inmate housed in the J-block.
[4] At approximately 3:00 p.m. on February 3, Officer Hinsey and Deborah Bolen,
a jail nurse, were making rounds through the J-block. When they reached
Jones’s cell, Nurse Bolen looked through the window on the cell door and
observed Jones lying on the bottom bunk, with a blanket pulled up covering his
face. Nurse Bolen knocked on the window to Jones’s cell twice in an effort to
get Jones’s attention, but Jones did not respond. At that point, Officer Hinsey
knocked on the window and attempted to speak with Jones. According to
1 Ind. Code § 35-42-2-1(b)(1), (f)(5)(A). 2 Ind. Code § 35-50-2-6(b) (“[a] person who commits a Level 5 felony . . . shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years”).
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 2 of 6 Jones, he responded by saying “what.” Transcript at 192. Officer Hinsey did
not hear Jones’s response and detected no movement from Jones. Believing
that Jones was unresponsive, Officer Hinsey opened the door and entered
Jones’s cell. Officer Hinsey then used his set of keys to tap against the metal
bunk bed, creating a loud “clanking” sound in an effort to get Jones’s attention.
Id. at 110. Jones testified that he heard Officer Hinsey enter his cell, but did not
respond. Officer Hinsey then removed the blanket that was covering most of
Jones’s head, at which point, Jones jumped out of bed “very aggressively,”
stood face-to-face with Officer Hinsey, and yelled “what the fuck is your
problem”. Id.
[5] Jones then pushed his way past Officer Hinsey as he left his cell and entered the
day room for J-block, a larger area just outside the cell. At that time, J-block
was on lockdown due to the fact that there was a maintenance person in the cell
block repairing a water leak. Officer Hinsey radioed for back-up and then
followed Jones into the day room. Jones balled up his fists in a fighting posture
and backed away from Officer Hinsey. When Jones refused to comply with
Officer Hinsey’s direct order to get on the floor, Officer Hinsey attempted to
secure Jones. Jones responded by throwing punches at Officer Hinsey and
trying to further engage in a fight by grabbing his uniform. Jones eventually
grabbed Officer Hinsey around the waist and took him to the ground, causing
Officer Hinsey to strike his head on the concrete floor. With assistance from
other officers, Officer Hinsey eventually secured Jones.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 3 of 6 [6] The State charged Jones with battery on a public safety official as a Level 5
felony. A jury trial was held on April 7, 2015, at the conclusion of which the
jury found Jones guilty as charged. The trial court held a sentencing hearing on
April 27, 2015. After reviewing the pre-sentence investigation report (PSI) and
considering arguments of counsel, the trial court sentenced Jones to six years
imprisonment. Jones now appeals, challenging the sentence imposed.
Discussion & Decision
[7] Jones argues that his six-year executed sentence is inappropriate. Indiana
Appellate Rule 7(B) provides: “The 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.” See also Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct.
App. 2012). “Sentencing review under Appellate Rule 7(B) is very deferential
to the trial court.” Schaadt v. State, 30 N.E.3d 1, 4 (Ind. Ct. App. 2015). When
reviewing a sentence, our principal role is to leaven the outliers rather than
necessarily achieve what is perceived as the correct result. Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “We do not look to determine if the sentence
was appropriate; instead we look to make sure the sentence was not
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Jones bears
the burden of persuading the court that his sentence is inappropriate. See
Davis, 971 N.E.2d at 725.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 4 of 6 [8] We begin by considering the nature of the offense. While incarcerated in the
Allen County Jail on another crime, Jones’s refusal to respond to the jail nurse
and Officer Hinsey escalated into a physical confrontation with Officer Hinsey.
Jones, who had readied himself in a fighting stance, threw punches at Officer
Hinsey and eventually grabbed Officer Hinsey around the waist and took him
to the floor. The nature of the offense shows no restraint by Jones. Rather,
Jones acted in a very aggressive manner and with little regard for the safety and
well-being of Officer Hinsey, Nurse Bolen, or others present during the
altercation. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (noting that
when considering the nature of the offense, courts can consider whether the
offense was accompanied by “restraint, regard, and lack of brutality”).
[9] With regard to his character, Jones acknowledges that at the young age of
twenty-four, he has accumulated an extensive criminal history that spans two
states. Jones’s criminal history includes prior misdemeanor convictions for
criminal trespass to land in Cook County, Illinois (2009); criminal trespass to
land and two convictions for battery with bodily harm in Cook County, Illinois
(2010), and criminal trespass in Allen County, Indiana (2014). Jones has also
accumulated a felony conviction for manufacturing or dealing cannabis near a
school in Cook County, Illinois (2000). In addition, Jones has several other
arrests for criminal trespass, possession of cannabis, manufacturing/dealing
cannabis, battery, resisting law enforcement, and domestic battery. Jones’s
criminal history is not indicative of virtuous character traits that would weigh in
his favor in our review of the appropriateness of his sentence. See id. (noting
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 5 of 6 that “substantial virtuous traits or persistent examples of good character” are
weighty considerations upon sentence review).
[10] As our Supreme Court recently noted, deference to the trial court “should
prevail unless overcome by compelling evidence portraying in a positive light
the nature of the offense . . . and the defendant’s character.” Stephenson v. State,
29 N.E.3d 111, 122 (Ind. 2015). Here, Jones has offered no compelling
evidence that would lead us to conclude that his sentence is inappropriate. We
therefore affirm the six-year executed sentence imposed by the trial court.
[11] Judgment affirmed.
[12] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-291 | December 4, 2015 Page 6 of 6