Conor P. Scott v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2018
• Docket: 18A-CR-185
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 31 2018, 7:30 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Conor P. Scott, July 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-185 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1708-F3-20

Altice, Judge

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 1 of 11 Case Summary [1] Seventeen-year-old Conor Scott robbed a convenience store employee at

gunpoint, was charged as an adult, pled guilty to armed robbery as a Level 3

felony and pointing a firearm as a Level 6 felony, and was sentenced to an

aggregate term of nine years in the Indiana Department of Correction (DOC)

with five and one-half years executed and three and one-half years of supervised

probation. On appeal, Scott raises the following issues:

1. Whether the trial court abused its discretion by identifying a jail altercation as an aggravating circumstance; and

2. Whether his nine-year sentence is inappropriate.

[2] We affirm.

Facts & Procedural History [3] The facts, taken from the probable cause affidavit, are that early morning, on

August 16, 2017, Scott rode to a convenience store with an acquaintance, Kevin

Latour. They placed bandanas over their faces and approached the entrance to

the store. However, when they saw a bystander looking at them, they removed

their bandanas and walked away.

[4] That same morning, Scott and Latour went to another convenience store,

located in Lafayette, Indiana, and entered the store, wearing bandanas over

their faces. Once inside the store, Scott pointed a firearm at the employee and

demanded money from the cash register. The employee gave money to Scott

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 2 of 11 and Latour, and the two left the store. They crashed the vehicle they were

driving and then fled on foot. Scott, eventually, was located by the police and

was taken into custody.

[5] On August 22, 2017, the State charged Scott with conspiracy to commit armed

robbery, a Level 3 felony; armed robbery, a Level 3 felony; theft, a Class A

misdemeanor; pointing a firearm, a Level 6 felony; and carrying a handgun

without a license, a Class A misdemeanor. On November 29, 2017, Scott pled

guilty to the armed robbery, the pointing a firearm, and the carrying a handgun

without a license counts. The parties later amended the plea agreement to

dismiss the carrying a handgun without a license count.

[6] At sentencing, the trial court identified the following mitigating circumstances:

Scott pled guilty; he accepted responsibility for the crimes; he had strong

support from his friends and family; he had a history of employment; and when

he committed the crimes, he was “awfully young.” Transcript at 47. The trial

court also recognized Scott’s commitment as a boy scout. The trial court found

the following aggravating circumstances: Scott had a juvenile history; his prior

juvenile probation had been revoked; he did not take advantage of his previous

time on probation; and his previous attempts at rehabilitation were

unsuccessful. The trial court also determined that Scott’s involvement in a fight

at the jail while in custody was an “aggravating” circumstance and that it

“[counted] against [Scott’s] character.” Id. at 46.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 3 of 11 [7] At the conclusion of the sentencing hearing, the trial court sentenced Scott to

nine years and to one year, respectively, for his convictions for armed robbery

and pointing a firearm, with the sentences to be served concurrently. The trial

court ordered five and one-half years executed in the DOC and three and one-

half years suspended to supervised probation. Scott now appeals. Additional

facts will be provided as necessary.

Discussion & Decision

1. Aggravating Circumstances [8] Scott first claims that the trial court abused its discretion by relying on a jail

altercation as an aggravating circumstance. Scott’s presentence investigation

report (PSI) notes that Scott was involved in an altercation on October 2, 2017,

at the Tippecanoe County Jail and, as a result, was placed in segregation.

According to Scott, “[t]he only aspect of the record related to the jail altercation

is a vague statement . . . [, and w]e can be no more certain that [he] provoked

the altercation than that he was a blameless victim of a jail beating.” Appellant’s

Brief at 8-9. Scott maintains that the record neither supports the trial court’s

consideration of the altercation as an aggravating circumstance nor the trial

court’s conclusion that Scott’s involvement in the altercation reflected poorly on

his character.

[9] Sentencing decisions are within the sound discretion of the trial court and

reviewed only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 4 of 11 occurs if the decision is clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Id. A trial court may abuse its discretion

in sentencing by failing to enter a sentencing statement, entering a sentencing

statement that explains reasons for imposing a sentence which the record does

not support, omitting reasons that are clearly supported by the record and

advanced for consideration, or giving reasons that are improper as a matter of

law. Id. at 490-91.

[10] Regarding a PSI, there is only one purpose for filing one, that is, to provide

information to the court for use at individualized sentencing. Timberlake v.

State, 690 N.E.2d 243, 266 (Ind. 1997). The sentencing court evaluates the

information contained therein to determine the existence of aggravating and

mitigating factors. Id. Thus, it goes without saying that the information

contained in the report must be accurate. Yates v. State, 429 N.E.2d 992, 994

(Ind. Ct. App. 1982).

[11] We presume the information contained in the PSI is accurate unless the

defendant challenges it in some respect. Dillard v. State, 827 N.E.2d 570, 576

(Ind. Ct. App. 2005), trans. denied. The knowing failure to object to the

information contained in the PSI waives the issue of the report’s accuracy for

appellate review. Id.

[12] Scott argues that “[t]he record is devoid of any explanation for the [jail]

altercation.” Appellant’s Brief at 9. The record reveals, however, that Scott had

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 5 of 11 an opportunity to review the PSI and request clarification or correction of the

information regarding the altercation. Instead, he stated at sentencing that he

had no corrections to the report, and he made no attempt to correct the PSI or

offer any explanation regarding the altercation. Therefore, the issue is waived.

[13] Waiver notwithstanding, by not raising any factual challenges to the PSI report,

Scott essentially admitted “to the accuracy of the facts contained therein.”

Chupp v. State, 830 N.E.2d 119, 126 n.12 (Ind. Ct. App. 2005). Because the trial

court is entitled to accept the PSI report and make a decision based “on the

facts recited therein[,]” we find that the trial court did not abuse its discretion by

considering the jail altercation as an aggravating circumstance. Butrum v. State,

469 N.E.2d 1174, 1178 (Ind. 1984).

2. Inappropriate Sentence [14] Scott next challenges the appropriateness of his nine-year sentence and argues

that it should be reduced. Scott maintains that he “deserves a sentence below

the advisory – or alternatively, a less onerous prison sentence [ – ]” because he

was seventeen years old when he committed the crimes; no injuries resulted

from his crimes; there is no indication that he took a substantial amount of

money from the store employee; he pled guilty and took responsibility for the

crimes; his previous employer considered him to be a good employee; and the

instant convictions were his first felonies and his first adult convictions.

Appellant’s Brief at 10.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 6 of 11 [15] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we find that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender. When reviewing a sentence, our principal role is to leaven the

outliers rather than necessarily achieve what is perceived as the correct result in

each case. 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).

[16] “[S]entencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference.” Cardwell, 895 N.E.2d at

1222. “Such deference should prevail 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). In conducting our review, we may

consider all aspects of the penal consequences imposed by the trial court in

sentencing, i.e., whether it consists of executed time, probation, suspension,

home detention, or placement in community corrections, and whether the

sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010). In addition, as we assess the nature of the offense and

character of the offender, “we may look to any factors appearing in the

record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Scott has

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 7 of 11 the burden to show that his sentence is inappropriate. Anglemyer, 868 N.E.2d at

490.

[17] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence is the starting point the General Assembly has selected as

an appropriate sentence for the crime committed. Childress v. State, 848 N.E.2d

1073, 1081 (Ind. 2006). Scott was convicted of pointing a firearm, a Level 6

felony, and armed robbery as a Level 3 felony. The sentencing range for a

Level 6 felony is between six months and two and one-half years, with an

advisory sentence of one year. See Ind. Code § 35-50-2-7. The sentencing range

for a Level 3 felony is between three and sixteen years, with an advisory

sentence of nine years. See I.C. § 35-50-2-5. Scott’s aggregate sentence is equal

to the advisory for a Level 3 felony.

[18] As to the nature of Scott’s offenses, he admitted that he entered a convenience

store, pointed a handgun at an employee, and demanded money from the cash

register. While the store employee was not physically harmed, and the nature

of the armed robbery offense may not have been particularly egregious, we

agree with the trial court that, given the “seriousness” of the armed robbery, the

offense warranted the advisory sentence. Transcript at 48.

[19] Regarding character, Scott has a history of delinquency that reflects poorly on

his character. On July 7, 2015, at the age of fifteen, he was arrested for an

alcohol violation. Three months later, he was arrested for possession of

marijuana and possession of paraphernalia and was placed on home detention

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 8 of 11 and, later, day reporting. He violated his probation on December 30, 2015, and

again on January 7, 2016, by failing drug screens. He was eventually placed in

an informal adjustment program but was unsuccessfully released.

[20] On March 7, 2016, Scott was adjudicated a delinquent for the possession of

paraphernalia, was placed on probation, and (among other things) was ordered

to complete a substance abuse assessment and attend all psychiatric

appointments. However, less than two months later, he was arrested for

possession of a controlled substance and theft; the State filed two probation

violations; and Scott was placed on home detention. A little over two months

later, the State filed a second home detention violation against Scott. Two days

later, the State filed another probation violation against Scott because he failed

a drug screen, and Scott was placed back on home detention. Four days later,

the State filed additional home detention and probation violations against Scott.

[21] On July 15, 2016, at the age of sixteen, Scott was arrested for leaving home

without permission and auto theft. Less than one month later, he was arrested

for theft. On August 29, 2016, he was adjudicated a delinquent for the

possession of a controlled substance and the theft counts, and he was placed on

probation. He was successfully released from probation on May 24, 2017.

However, on August 14, 2017, at age seventeen, Scott was arrested for leaving

home without permission, auto theft, and theft of a firearm. In that case, a

petition for waiver from juvenile court had been filed and was pending. Two

days later, Scott committed the instant offenses, using the vehicle that he

allegedly had stolen.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 9 of 11 [22] Scott has been adjudicated a delinquent twice. He has violated his probation

six times. He violated home detention. He had a petition for waiver from

juvenile court pending in a separate case. As the trial court noted at sentencing,

Scott was afforded many opportunities through informal adjustment, substance

abuse assessment, individual counseling, and mental health and family

preservation programs, but he did not take advantage of the programs. The

court stated, and we agree, that this “does not speak well of [Scott’s] character.”

Id. at 45.

[23] Regarding Scott’s age at the time he committed the offenses, the trial court

noted: “The strongest mitigatory [sic] however, is your age. Seventeen. That’s

awfully young. Awfully young.” Id. at 47. Nevertheless, the court determined

that Scott should receive the advisory sentence. Although a defendant’s youth

can, in some cases, constitute a significant mitigating factor warranting

leniency, this is not always the case. Coleman v. State, 952 N.E.2d 377, 385

(Ind. Ct. App. 2011). As our Supreme Court explained, “Focusing on

chronological age is a common shorthand for measuring culpability, but for

people in their teens and early twenties it is frequently not the end of the

inquiry. There are both relatively old offenders who seem clueless and

relatively young ones who appear hardened and purposeful.” Ellis v. State, 736

N.E.2d 731, 736 (Ind. 2000).

[24] In sum, although Scott’s juvenile history is not aggravating to a high degree, it

still is a poor reflection on his character. His frequent contacts with the juvenile

system clearly did not deter him from committing the present offenses. The

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 10 of 11 juvenile system has given him numerous opportunities to reform his behavior

without imposing incarceration, including informal adjustment, probation, and

home detention. He has not taken advantage of the programs. Furthermore,

we are not persuaded that Scott’s sentence is inappropriate because of his age or

because the instant case represents Scott’s first felony convictions. We,

therefore, find that both the nature of the offenses and Scott’s character support

the sentence imposed by the trial court. Scott’s sentence is not inappropriate.

[25] Judgment affirmed.

Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-185 | July 31, 2018 Page 11 of 11