MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 30 2018, 7:23 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 Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deandre Barnum, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1707-CR-1641 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1606-F1-1175
Mathias, Judge.
[1] Deandre Barnum (“Barnum”) pleaded guilty to Level 3 felony aggravated
battery and Level 4 felony unlawful possession of a firearm by a violent felon in
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 1 of 6 Madison Circuit Court. Sentencing was left to the discretion of the trial court,
and Barnum received fourteen years executed in the Department of Correction
(“DOC”) for the aggravated battery and ten years for the unlawful possession of
a firearm, for an aggregate sentence of twenty-four years. Barnum now appeals
and argues that his sentence is inappropriate in light of the nature of the offense
and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On June 5, 2016, Rodrico Malone solicited a date from backpage.com—“an
application on Craigslist which focuses on ‘dating’ but also has been involved in
prostitution.” Appellant’s App. Vol. 3, p. 23. Barnum accompanied two
females, Kyle Buczek and Ashtin McGregor, to Malone’s house “so that
McGregor could have sex” with Malone. Id. After dropping McGregor off,
Barnum parked his vehicle nearby and waited for her to come back out. When
McGregor came back to Barnum’s vehicle, she complained that Malone “had
been rough with her and that he had put a gun to her head.” Id.
[4] Barnum was not happy, and after stopping by McGregor’s home, he gave each
of the two women instructions and proceeded back to Malone’s. McGregor
stayed in the car while Buczek went to the door to lure Malone out of the
house. Buczek did as Barnum requested, and when Malone opened the door
Barnum fired several shots at Malone, hitting him in the leg once.
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 2 of 6 [5] Barnum was apprehended by officers later that day, and during a pat down
search officers found marijuana. Four days later Barnum was charged with
Level 1 felony attempted murder, Class A misdemeanor possession of
marijuana, and Class B misdemeanor possession of marijuana. On July 1, the
State amended the charging information to include Level 4 felony unlawful
possession of a firearm by a serious violent felon.
[6] On May 22, 2017, the State again amended the charging information, this time
to include Level 3 felony aggravated battery and an enhancement for the use of
a firearm in commission of the offense. A jury trial commenced on May 23, and
on the second day of trial, Barnum pleaded guilty to Level 3 felony aggravated
battery and Level 4 felony unlawful possession of a firearm by a serous violent
felon. The State dismissed the remaining charges.
[7] On June 26, 2017, the trial court sentenced Barnum to fourteen years executed
in the DOC for the aggravated battery and ten years executed for the unlawful
possession for an aggregate sentence of twenty-four years.
[8] Barnum now appeals his sentence.
Discussion and Decision [9] Barnum argues that the imposition of the aggregate twenty-four-year sentence is
inappropriate. Specifically, Barnum contends that his enhanced sentence is
inappropriate because he was a “moderate risk to reoffend,” and “[t]here was
nothing indicated by the trial court that marked this offense as heinous.”
Appellant’s Br. at 10. We disagree with Barnum’s conclusion.
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 3 of 6 [10] Indiana Appellate Rule 7(B) provides that “[t]he 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 conducting our review, “[w]e 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). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review
and revise sentences, the principal role of appellate review should be to attempt
to “leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Id. at 1225. It is Barnum’s burden on
appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[11] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
advisory sentence for a Level 3 felony is nine years, with a sentencing range of
three to sixteen years. Ind. Code § 35-50-2-5. And the advisory sentence for a
Level 4 felony is six years, with a sentencing range of two to twelve years. Ind.
Code § 35-50-2-5.5 Thus, Barnum was ordered to serve five years above the
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 4 of 6 advisory for the Level 3 felony and four years above the advisory for the Level 4
felony.
[12] Regarding the nature of the offense here, Barnum used a woman to lure Malone
out of his home. He then fired several shots at Malone, ultimately striking him
in the leg and causing serious injury. Moreover, Barnum was on drugs at the
time he shot Malone, and he was on probation when he committed the offense.
Although there may have been no mention by the trial court that the offense
was particular heinous, see Appellant’s Br. at 13, we find that it was.
[13] We acknowledge that some of the factors above do not directly relate to the
charges Barnum pleaded guilty to, however, “it is not necessary for a trial court
to turn a blind eye to the facts of the incident that brought the defendant before
them.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013); see also Anglemyer v.
State, 868 N.E.2d 482, 492 (Ind.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 30 2018, 7:23 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 Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deandre Barnum, April 30, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1707-CR-1641 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1606-F1-1175
Mathias, Judge.
[1] Deandre Barnum (“Barnum”) pleaded guilty to Level 3 felony aggravated
battery and Level 4 felony unlawful possession of a firearm by a violent felon in
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 1 of 6 Madison Circuit Court. Sentencing was left to the discretion of the trial court,
and Barnum received fourteen years executed in the Department of Correction
(“DOC”) for the aggravated battery and ten years for the unlawful possession of
a firearm, for an aggregate sentence of twenty-four years. Barnum now appeals
and argues that his sentence is inappropriate in light of the nature of the offense
and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] On June 5, 2016, Rodrico Malone solicited a date from backpage.com—“an
application on Craigslist which focuses on ‘dating’ but also has been involved in
prostitution.” Appellant’s App. Vol. 3, p. 23. Barnum accompanied two
females, Kyle Buczek and Ashtin McGregor, to Malone’s house “so that
McGregor could have sex” with Malone. Id. After dropping McGregor off,
Barnum parked his vehicle nearby and waited for her to come back out. When
McGregor came back to Barnum’s vehicle, she complained that Malone “had
been rough with her and that he had put a gun to her head.” Id.
[4] Barnum was not happy, and after stopping by McGregor’s home, he gave each
of the two women instructions and proceeded back to Malone’s. McGregor
stayed in the car while Buczek went to the door to lure Malone out of the
house. Buczek did as Barnum requested, and when Malone opened the door
Barnum fired several shots at Malone, hitting him in the leg once.
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 2 of 6 [5] Barnum was apprehended by officers later that day, and during a pat down
search officers found marijuana. Four days later Barnum was charged with
Level 1 felony attempted murder, Class A misdemeanor possession of
marijuana, and Class B misdemeanor possession of marijuana. On July 1, the
State amended the charging information to include Level 4 felony unlawful
possession of a firearm by a serious violent felon.
[6] On May 22, 2017, the State again amended the charging information, this time
to include Level 3 felony aggravated battery and an enhancement for the use of
a firearm in commission of the offense. A jury trial commenced on May 23, and
on the second day of trial, Barnum pleaded guilty to Level 3 felony aggravated
battery and Level 4 felony unlawful possession of a firearm by a serous violent
felon. The State dismissed the remaining charges.
[7] On June 26, 2017, the trial court sentenced Barnum to fourteen years executed
in the DOC for the aggravated battery and ten years executed for the unlawful
possession for an aggregate sentence of twenty-four years.
[8] Barnum now appeals his sentence.
Discussion and Decision [9] Barnum argues that the imposition of the aggregate twenty-four-year sentence is
inappropriate. Specifically, Barnum contends that his enhanced sentence is
inappropriate because he was a “moderate risk to reoffend,” and “[t]here was
nothing indicated by the trial court that marked this offense as heinous.”
Appellant’s Br. at 10. We disagree with Barnum’s conclusion.
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 3 of 6 [10] Indiana Appellate Rule 7(B) provides that “[t]he 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 conducting our review, “[w]e 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). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review
and revise sentences, the principal role of appellate review should be to attempt
to “leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Id. at 1225. It is Barnum’s burden on
appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[11] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
advisory sentence for a Level 3 felony is nine years, with a sentencing range of
three to sixteen years. Ind. Code § 35-50-2-5. And the advisory sentence for a
Level 4 felony is six years, with a sentencing range of two to twelve years. Ind.
Code § 35-50-2-5.5 Thus, Barnum was ordered to serve five years above the
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 4 of 6 advisory for the Level 3 felony and four years above the advisory for the Level 4
felony.
[12] Regarding the nature of the offense here, Barnum used a woman to lure Malone
out of his home. He then fired several shots at Malone, ultimately striking him
in the leg and causing serious injury. Moreover, Barnum was on drugs at the
time he shot Malone, and he was on probation when he committed the offense.
Although there may have been no mention by the trial court that the offense
was particular heinous, see Appellant’s Br. at 13, we find that it was.
[13] We acknowledge that some of the factors above do not directly relate to the
charges Barnum pleaded guilty to, however, “it is not necessary for a trial court
to turn a blind eye to the facts of the incident that brought the defendant before
them.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013); see also Anglemyer v.
State, 868 N.E.2d 482, 492 (Ind. 2007) (holding the “circumstances of the crime
as well as the manner in which the crime is committed” are proper aggravating
factors for a trial court to consider). Simply put, the nature of the offense does
not support a finding that Barnum’s enhanced sentence was inappropriate.
[14] Barnum’s character also does not convince us that an enhanced sentence was
inappropriate here. He is a twenty-two-year-old man with convictions for
battery, intimidation, dealing in a narcotic drug, possession of a narcotic drug,
carrying a handgun without a license, and possession of marijuana. And this is
his second felony conviction. Further, Barnum has violated probation on
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 5 of 6 several occasions, and he has failed to go a full year without committing a new
criminal offense since he turned eighteen.
[15] Despite Barnum’s previous contact with the criminal justice system and the
police power of the State, he was not deterred from committing the instant
offense. Therefore, we cannot conclude that the trial court’s decision to impose
an enhanced twenty-four-year aggregate sentence here is an “outlier” that
should be reversed under our constitutional authority to review and revise
sentences. Caraway v. State, 977 N.E.2d 469, 473 (Ind. Ct. App. 2012), trans.
denied.
Conclusion [16] Based on the facts and circumstances before us, we conclude that Barnum has
not met his burden of persuading us that his twenty-four-year aggregate
sentence is inappropriate in light of the nature of the offense and the character
of the offender. Accordingly, we affirm.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1707-CR-1641 | April 30, 2018 Page 6 of 6