Darrell L. Berry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2019
• Docket: 18A-CR-2916
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 27 2019, 8:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John A. Kindley Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darrell L. Berry, June 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2916 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge

Trial Court Cause No. 71D08-1803-F5-49

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 1 of 4 Case Summary [1] Darrell Berry pled guilty to Level 5 felony battery and was sentenced to a four-

year term in community corrections. On appeal, Berry contends that his four-

year sentence is inappropriate. We affirm.

Facts and Procedural History [2] On March 2, 2018, Berry touched C.P. in a rule, insolent, or angry manner. On

March 7, 2018, the State charged Berry with Count I – Class B misdemeanor

battery, Count II – Class A misdemeanor resisting law enforcement, and Count

III – Level 5 felony battery. In charging Berry with this elevated battery charge,

the State alleged that in 2016, Berry was convicted of Class A misdemeanor

domestic battery, with C.P. as his victim. On September 24, 2018, Berry pled

guilty to the Level 5 felony battery charge. In exchange, the State agreed to

drop Counts I and II. The trial court accepted Berry’s guilty plea and, on

November 2, 2018, sentenced him to a four-year term to be served in St. Joseph

County Community Corrections.

Discussion and Decision [3] Berry contends that his four-year sentence is inappropriate in light of the nature

of his offense and his character. Specifically, Berry argues that “there is nothing

about this case and nothing cited by the judge that would indicate that a

sentence higher than the advisory was appropriate.” Appellant’s Br. p. 5. We

disagree. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 2 of 4 [4] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “concentrate

less on comparing the facts of [the case at issue] 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 sentenced, and what it reveals about

the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

2008) (internal quotation omitted). The defendant bears the burden of

persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d

174, 176 (Ind. Ct. App. 2008).

[5] With respect to the nature of Berry’s offense, the record reveals that Berry’s

criminal act of battering C.P. was elevated to a Level 5 felony because he had

previously been convicted of battering C.P. The record further reveals that in

addition to the prior conviction noted in the charging information for the

elevated battery charge, Berry has another unrelated conviction for battering

C.P. Berry’s act of battering C.P. was not an isolated event as his criminal

record reveals a pattern of Berry victimizing C.P.

[6] In addition to his convictions involving violence against C.P., Berry’s criminal

history includes misdemeanor convictions for operating a vehicle while

intoxicated and leaving the scene of an accident. He has also committed

numerous probation violations. In sentencing Berry, the trial court noted that

while Berry’s criminal history “might not be the worst criminal history, the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 3 of 4 repeated type of crime, nature of crime … gives me a lot of pause, a lot of

concern.” Tr. Vol. II p. 19. We share the trial court’s concern. Berry’s actions

have demonstrated a disregard for both C.P.’s well-being and for the laws of

this state.

[7] Further, to the extent that Berry claims his guilty plea reflects well on his

character, we have previously held that a guilty plea does not automatically

signify a positive character trait, especially in cases where, as here, the

defendant has received a benefit from the plea or “where the evidence against

him is such that the decision to plead guilty is merely a pragmatic one.” See

Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. In this

case, Berry pled guilty after viewing the exhibits that the State planned to

introduce into trial and in exchange for other charges being dropped. As such,

we conclude that Berry’s decision to plead guilty was more of a pragmatic

decision rather than a display of positive character. Berry has failed to convince

us that his four-year sentence is inappropriate.

[8] The judgment of the trial court is affirmed.

Crone, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 4 of 4