MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 30 2015, 5:44 am 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 Kristina J. Jacobucci Gregory F. Zoeller LaPorte, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Demetrius Howell, June 30, 2015
Appellant-Defendant, Court of Appeals Case No. 46A05-1409-CR-446 v. Appeal from the Laporte Superior Court The Honorable Kathleen B. Lang, State of Indiana, Judge Appellee-Plaintiff Cause No. 46D01-1405-FC-144
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 1 of 21 Case Summary [1] Demetrius Howell (“Howell”) appeals his conviction and sentence for
Convicted Felon in Possession of a Handgun, as a Class C felony. 1 We affirm
his conviction and sentence, but remand with instructions to the trial court to
vacate Howell’s conviction for Carrying a Handgun without a License, as
entered in the court’s judgment order, and to correct a clerical error in the
abstract of judgment.
Issues [2] Howell presents five issues for review, which we restate as the following:
I. Whether Howell’s substantial rights were violated when the trial court permitted the State to amend the charging information shortly before trial, but the amendment did not require him to revise his defense strategy; II. Whether Howell’s substantial rights were violated when the State refiled a charge previously dismissed at the State’s request because the State at that time could not prove the matter beyond a reasonable doubt; III. Whether there was sufficient evidence to support Howell’s conviction; IV. Whether the abstract of judgment, which erroneously states that Howell was convicted of Criminal Recklessness, should be corrected by the trial court; and V. Whether Howell’s sentence was inappropriate.
1 Ind. Code §§ 35-47-2-1 & 35-47-2-23(c)(2)(B) (2012). Due to substantial revisions to the Indiana Code effective July 1, 2014, this offense is now a Level 5 felony. Throughout this opinion, we refer to the versions of the statutes in effect at the time of Howell’s offense.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 2 of 21 [3] We also address sua sponte the trial court’s judgment order, in which the court
entered judgments of conviction on two charges arising from the same incident
of criminal conduct and proven by the same evidence.
Facts and Procedural History [4] In February 2014, Howell, his then-girlfriend Jessica Jones (“Jones”), his sister
Keshyana Cooper, and Kentrell Spencer/Hatton (“Kentrell”) went to Kemp’s
Gun Store in Michigan City, Indiana. Jones purchased a box of bullets, and the
group left together. Both Howell and Kentrell had guns at the time.
[5] On March 11, 2014, two men with guns shot multiple times into a home
located on Providence Street in Michigan City. The homeowner recognized
one of the shooters as Kentrell, but did not see the other shooter. Police were
called, and officers from the Michigan City Police Department (“MCPD”)
responded and collected several bullets and casings from the home and yard.
[6] Ten days later, on March 21, 2014, a group of people including Howell were
gathered on the 200 block of McClelland Avenue following a funeral repast. At
some point, Howell approached Paris Lenoir (“Lenoir”) and her brother-in-law,
Shannon, while they were sitting in Lenoir’s truck. As Howell walked up,
Lenoir saw that Howell had a gun in his waistband. An argument ensued in
which threatening remarks were made. Lenoir left and dropped off Shannon.
When Lenoir returned, Howell was driving Jones’s car with Jones riding as a
passenger. Howell drove the car toward Lenoir’s truck in an apparent attempt Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 3 of 21 to drive Lenoir off the road. Ashley Walker (“Walker”), Lenoir’s sister who
observed the altercation, called 911 on Lenoir’s behalf. Although Walker did
not see Howell with a gun, she relayed to the police Lenoir’s report that Howell
had a gun.
[7] MCPD Officer David Legros (“Officer Legros”) heard a dispatch that
“Demetrius Howell was outside a black car with a handgun” on the 200 block
of McClelland. (Tr. 236.) Officer Legros responded to the call, quickly
followed by MCPD Chief of Police Mark Swistek (“Chief Swistek”). When
Officer Legros arrived on scene, Jones’s car was parked on the street. As
Officer Legros approached, he observed Howell get into and then quickly exit
the driver’s side of Jones’s car. Howell then stepped away from the car into the
street. No other people were in the car, although several others were still
gathered in the area. Officer Legros ordered Howell to stop, patted Howell
down, and then handcuffed him. Jones then gave the officers consent to search
the car. Chief Swistek found a loaded .38 caliber semi-automatic handgun
under the driver’s seat. Howell regularly used Jones’s car and had been driving
it earlier that day.
[8] On March 21, 2014, Howell was charged under cause number 46D01-1403-FC-
122 (“FC-122”) with Convicted Felon in Possession of a Handgun, based on
the March 21 incident. However, the State dismissed the charge “on or about
April 24, 2014 because the State was unable to prove the matter beyond a
reasonable doubt.” (App. 41.)
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 4 of 21 [9] Further investigation revealed that the gun recovered on March 21 matched the
bullets and casings found at the scene of the March 11 shooting on Providence
Street. As a result, on May 2, 2014, Howell was originally charged in this case,
trial court cause number 46D01-1405-FC-144 (“FC-144”), with Criminal
Recklessness, as a Class C felony, 2 based on the March 11 shooting. At his
initial hearing on that charge on May 8, 2014, Howell requested a speedy trial,
which the trial court set for June 30, 2014. On May 22, 2014, the State filed its
first amended information, adding a charge of Convicted Felon in Possession of
a Handgun, as a Class C felony 3 (“Count I”), also based on the March 11
shooting, to the existing Criminal Recklessness charge (“Count II”).
[10] On June 17, 2014, the State requested leave to again amend the information to
add a second charge of Convicted Felon in Possession of a Handgun, as a Class
C felony 4 (“Count III”), based on the gun discovered during the March 21
incident. The motion stated that the State had previously charged and
dismissed the proposed Count III under FC-122, but that it should be added to
the charges in FC-144 because “the weapon recovered on March 21, 2014
matches the casings located at the scene on March 11, 2014[.]” (App. 41.)
[11] On June 25, 2014, Howell filed an objection to the State’s motion to amend,
arguing that the amendment would violate his rights to a speedy trial as set
2 I.C. §§ 35-42-2-2(b)(1) & (c)(3)(A). 3 I.C. §§ 35-47-2-1 & 35-47-2-23(c)(2)(B). 4 I.C. §§ 35-47-2-1 & 35-47-2-23(c)(2)(B).
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 5 of 21 forth in the Sixth Amendment to the U.S. Constitution, Article 1, Section 12 of
the Indiana Constitution, and Indiana Criminal Rule 4(B). Howell alleged a
“disturbing pattern of evasiveness with respect to” his constitutional rights
(App. 71), and urged that “the State’s attempt to resurrect [FC-122] as Count III
of [FC-144] cannot be allowed, consistent with the constitutional protections set
forth above.” (App. 72.) On June 26, 2014, the trial court granted the State’s
motion to amend the information and add Count III.
[12] Howell moved for and was granted a bifurcated trial so that the jury would not
hear evidence of his prior felony conviction unless he was convicted of Counts I
or III. His jury trial commenced on June 30, 2014. In phase one, Counts I and
III were presented to the jury as charges of Carrying a Handgun without a
License, and focused on Howell’s possession of a handgun on March 11 and
March 21, respectively. At the conclusion of phase one, Howell was found
guilty of Count III, Carrying a Handgun without a License, and not guilty of
Counts I and II. The trial then proceeded to phase two, during which the State
presented evidence of Howell’s prior felony conviction. The jury returned a
second verdict of guilty, this time on Convicted Felon in Possession of a
Handgun. On July 1, 2014, the court orally entered a judgment of conviction
on “Convicted Felon in Possession of a Handgun, as a Class C felony.” (Tr.
522.) In its written judgment order, also on July 1, 2014, the court entered a
judgment of conviction on both “Count III, Carrying a Handgun without a
License, as a Class C felony” and “Convicted Felon in Possession of a
Handgun, as a Class C felony.” (App. 143.)
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 6 of 21 [13] A sentencing hearing was held on August 7, 2014. On August 28, 2014, the
trial court sentenced Howell on one count of Convicted Felon in Possession of
a Handgun, as a Class C felony, to eight years in the Indiana Department of
Correction (“DOC”). He now appeals his conviction and sentence.
Discussion and Decision Amended Charging Information [14] Howell first argues that the State violated his substantial rights to notice and
opportunity to prepare a defense when it amended the charging information to
add Count III.
[15] Amendments to a charging information are governed by Indiana Code section
35-34-1-5. A charging information may be amended at various stages of a
prosecution, depending on whether the amendment is to the form or substance
of the original information. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014)
(citing Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007), superseded by statute).
Whether an amendment to a charging information is a matter of form or
substance is a question of law, which we review de novo. Id. “An amendment is
one of form and not substance if a defense under the original information would
be equally available after the amendment and the accused’s evidence would
apply equally to the information in either form.” McIntyre v. State, 717 N.E.2d
114, 125 (Ind. 1999) (citation omitted). An amendment is of substance only if it
is essential to making a valid charge of the crime. Id. at 125-26.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 7 of 21 [16] Here, the State sought to amend the charging information to add a second
charge of Convicted Felon in Possession of a Handgun, alleging that Howell
possessed a gun on a different day than the allegations made in the original
charging information. This was an amendment of substance. See Fajardo, 859
N.E.2d at 1207-08 (holding that an amendment charging a new separate offense
based on a second incident of criminal conduct on a different date constituted
an amendment to matters of substance).
[17] An information may be amended in matters of substance by the prosecuting
attorney, upon giving written notice to the defendant at any time before the
commencement of trial, if the amendment does not prejudice the substantial
rights of the defendant. I.C. § 35-34-1-5(b)(2) (Supp. 2013). A defendant’s
substantial rights include a right to sufficient notice and an opportunity to be
heard regarding the charge. Erkins, 13 N.E.3d at 405 (citing Gomez v. State, 907
N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied). If the amendment does not
affect any particular defense or change the positions of either of the parties, it
does not violate these rights. Id. “‘Ultimately, the question is whether the
defendant had a reasonable opportunity to prepare for and defend against the
charges.’” Id. (quoting Sides v. State, 693 N.E2d 1310, 1313 (Ind. 1998),
abrogated on other grounds).
[18] Howell argues that “[b]y approving the proposed amendments to the charging
information merely four (4) days prior to the commencement of trial, the trial
court effectively denied [him] reasonable notice and opportunity to prepare his
defense to Count III.” (Appellant’s Br. 13.) We find Howell’s argument
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 8 of 21 unavailing. Here, although the trial court did not grant the State’s motion to
amend until four days before trial, the State provided written notice of the
amendment on June 17 when it filed the motion to amend and the amended
information. Howell thus received notice of the charge nearly two weeks before
his speedy trial was set to begin on June 30. Furthermore, Howell was already
aware of the underlying facts of the charge because, as the State’s motion
stated, Howell was originally charged with the offense on March 21, but it was
dismissed at the State’s request on April 24.
[19] Furthermore, Howell’s possession of the gun recovered on March 21 was
already at issue in FC-144 prior to the amendment adding Count III. In Count
II, the State alleged that Howell committed criminal recklessness “by shooting a
firearm into an inhabited dwelling at 1118 Providence Street.” (App. 24.) The
State’s motion to amend provided Howell notice that the new charge was
“linked” to Counts I and II because “the weapon recovered on March 21, 2014
matches the casings located at the scene on March 11, 2014[.]” (App. 41.)
Howell was already preparing to defend against a charge that he used the gun
recovered from the car on March 21 in a shooting ten days earlier; thus, the
additional charge that he possessed the gun recovered on March 21 did not
require him to revise his defense strategy at the last minute.
[20] The nature and facts of the other charges provided Howell with reasonable
opportunity to prepare for and defend against the charge in Count III, even
though it occurred on a different day. Further, Howell had prior notice of the
charge because he had previously been charged with the offense under a
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 9 of 21 different cause number. Howell’s substantial rights to reasonable notice and
opportunity to prepare a defense were not violated by the addition of Count III
to the charging information. 5
Speedy Trial [21] Howell next argues that by permitting the State to refile the charge in FC-122 as
Count III in this case, “the trial court permitted the State to effectively evade
Mr. Howell’s request for a speedy trial in the prior case.” (Appellant’s Br. 14.)
[22] Under Indiana Code section 35-34-1-13(a), the prosecuting attorney may move
for the dismissal of the information at any time before sentencing. As long as
the motion states the reason for dismissal, the trial court shall grant the State’s
motion. I.C. § 35-34-1-13(a); Davenport v. State, 689 N.E.2d 1226, 1229 (Ind.
1997), modified & aff’d on reh’g, 696 N.E.2d 870 (1998) (“Davenport II”). The
dismissal of an information is not necessarily a bar to refiling; however, “[t]he
State may not refile if doing so will prejudice the substantial rights of the
defendant.” Davenport, 689 N.E.2d at 1229. “Speedy trial and jeopardy rights
are two specific examples of substantial rights which cannot be prejudiced.” Id.
On the other hand, “the State does not necessarily prejudice a defendant’s
substantial rights if it dismissed the charge because it is not ready to prosecute
and then refiles an information for the same offense.” Id. (citing Johnson v.
5 The State argues that by failing to ask for a continuance, Howell waived his objection that he did not have reasonable notice or an opportunity to prepare. Because we find that Howell’s substantial rights were not violated by the amendment, we do not address the State’s waiver argument.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 10 of 21 State, 252 Ind. 79, 246 N.E.2d 181, 183-84 (1969); Dennis v. State, 412 N.E.2d
303, 304-05 (Ind. Ct. Ap. 1980)). “The question of substantial prejudice is a
fact-sensitive inquiry, not readily amenable to bright-line rules.” Johnson v.
State, 740 N.E.2d 118, 120 n.3 (Ind. 2001).
[23] Howell argues that “[c]learly, dismissing the prior cause and adding Count III
to the underlying cause was an attempt by the State to evade Mr. Howell’s
constitutional right to a speedy trial.” (Appellant’s Br. 14.) The record does
not support Howell’s argument. The State’s motion to amend the charging
information 6 states that FC-122 “was dismissed on or about April 24, 2014
because the State was unable to prove the matter beyond a reasonable doubt.”
(App. 41.) Later, the State sought to add the charge in FC-144 after it had
“done further investigation and discovery.” (App. 40.) The State’s dismissal
here occurred because the State was not ready to prosecute. Such a dismissal
does not necessarily prejudice a defendant’s substantial rights. See Davenport,
689 N.E.2d at 1229.
[24] This is not a case where the prosecution abused its inherent power in order to
avoid an adverse ruling of the trial court or to force Howell to discard his prior
preparation and begin a new trial with new charges, strategies, and defenses.
See, e.g., Davenport II, 696 N.E.2d 870, 871 (Ind. 1998) (finding that the State
abused its power where, after the trial court denied the State’s motion to add
6 The State’s motion to dismiss in FC-122 is not included in the appendix.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 11 of 21 three charges four days before the defendant’s murder trial, the State dismissed
the information and immediately refiled the murder charge and the three
additional charges); Johnson, 740 N.E.2d at 121 (finding that the State abused
its power when, faced with an adverse evidentiary ruling, the State dismissed
the charges and refiled them along with ten additional charges). Rather than an
abuse of the State’s power, the State refiled Count III after additional evidence
and discovery led the State to believe that it could prove the charge beyond a
reasonable doubt. And as discussed above, the refiling of the charge did not
require Howell to revise his defense strategy at the last minute. Absent other
circumstances that indicate unfair play by the prosecution, we cannot say the
State violated Howell’s substantial rights by refiling the charge.
[25] Further, Howell has failed to show how his speedy trial rights in the prior case
were violated. Howell was held in FC-122 on the charge of Convicted Felon in
Possession of a Handgun from March 21 to April 24, a total of thirty-five days.
After the trial court permitted the State to amend the information on June 26,
Howell was then brought to trial within five days. Howell failed to identify
how his speedy trial rights were violated when he was held, at most, forty days
on the charges in Count III before being tried. See Ind. Crim. Rule 4(B)(1) (“If
any defendant held in jail on an indictment or an affidavit shall move for an
early trial, he shall be discharged if not brought to trial within seventy (70)
calendar days from the date of such motion, except” in certain enumerated
situations.)
[26] Howell’s substantial rights were not prejudiced when the State refiled Count III.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 12 of 21 Sufficiency of the Evidence [27] Howell next argues there was insufficient evidence to support his conviction for
Convicted Felon in Possession of a Handgun, a Class C felony.
[28] Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
the credibility of witnesses or reweigh evidence. Id. We will affirm the
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens
v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[29] Pursuant to Indiana Code section 35-47-2-1(a), a person shall not carry a
handgun in any vehicle or on or about the person’s body without being licensed
to carry a handgun. A person who violates section 35-47-2-1(a) commits a
Class C felony if the person has been convicted of a felony within fifteen years
before the date of the offense. I.C. § 35-47-2-23(c)(2)(B). The State charged
that on or about March 21, 2014, at or about the 200 block of McClelland
Avenue, Howell “did knowingly or intentionally posses[s] a handgun upon his
person without a license, after having been convicted of a felony within fifteen
(15) years, to-wit: Criminal Recklessness as a Class D Felony in LaPorte
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 13 of 21 Superior Court No. 4 under Cause No. 46D04-1205-FD-885 on the 16th day of
November, 2012.” (App. 49; Tr. 486.)
[30] On appeal, Howell does not dispute his lack of a license or his prior felony
conviction, but argues that there was insufficient evidence that he possessed a
handgun on March 21, 2014. Indiana courts have approached the question of
whether a defendant “carried” a handgun similarly to the question of
possession of drugs. See Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999).
Possession of a handgun may be either actual or constructive. Id. Actual
possession occurs when a defendant has direct physical control over the item.
Id. Constructive possession occurs when the defendant has the intent and
capability to maintain dominion and control over the item. Id. (citation and
quotation marks omitted).
[31] Howell cites Henderson in support of his argument that the State presented
insufficient evidence of possession. In that case, defendant Henderson was a
passenger in his friend’s car when police pulled it over. Id. at 834. The friend
informed the officer that there were guns in the car, and the friend owned and
had permits for both. Id. at 835. One gun was underneath the passenger seat
where Henderson was sitting, and Henderson was charged with carrying a
handgun without a license. Id. Henderson was found guilty at a bench trial,
id., but on transfer, our supreme court held there was insufficient evidence of
possession to sustain the conviction where the gun was merely in Henderson’s
plain view and close proximity, but someone else in the car had legal, actual,
and simultaneous possession. Id. at 838. The court further noted that there was
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 14 of 21 no “evidence of any movement or action to suggest Henderson exercised
dominion” over the gun. Id.
[32] We find Henderson distinguishable from the case at hand. Jones testified that
Howell regularly used her car, and she and other witnesses testified that Howell
was driving the car on March 21 during the altercation on McClelland Avenue.
Lenoir also testified at trial that she saw Howell with a gun during the
altercation on McClelland, just before the police were called. Officer Legros
testified that as he approached the area, he observed Howell walk up to the
driver’s side of the car, get in, then quickly get out and step into the street. The
handgun was found tucked under the driver’s seat.
[33] The evidence that Howell (1) actually possessed a handgun on March 21, (2)
often drove Jones’s car, (3) drove the car during the altercation, (4) was in close
proximity to the gun when police arrived, and (5) was observed getting into and
quickly exiting the driver’s seat as the police approached, was sufficient
evidence of possession to sustain Howell’s conviction. See Person v. State, 661
N.E.2d 587, 590 (Ind. Ct. App. 1996) (affirming a conviction for dangerous
possession of a handgun where the defendant, who was in the left rear
passenger seat of a car, was in close proximity to the weapon found in the left
rear seat and had made a furtive gesture that suggested he was trying to hide the
gun), trans. denied.
[34] The State presented sufficient evidence of possession to sustain Howell’s
conviction for Convicted Felon in Possession of a Handgun.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 15 of 21 Judgment Order [35] Next, we turn sua sponte to the trial court’s judgment order. The court’s written
judgment order is the official trial court record and controlling document
regarding the defendant’s conviction and sentence. See Robinson v. State, 805
N.E.2d 783, 794 (Ind. 2004). In this case, the court’s judgment order implicates
double jeopardy principles. Double jeopardy violations implicate fundamental
rights that we may review sua sponte. Hayden v. State, 19 N.E.3d 831, 842 (Ind.
Ct. App. 2015), reh’g denied, trans. denied.
[36] During phase one of Howell’s bifurcated trial, the State presented evidence of
Howell’s possession of the handgun on March 21, but did not present evidence
of Howell’s prior felony conviction. The charge on Count III, as presented to
the jury during phase one, was for Carrying a Handgun without a License on
March 21. At the conclusion of phase one, he was found guilty of Count III.
The trial then proceeded to phase two, during which the State presented
evidence of Howell’s prior felony conviction. The jury returned a second
verdict of guilty, this time on Convicted Felon in Possession of a Handgun. At
trial, the court orally entered a judgment of conviction “on Count III,
Convicted Felon in Possession of a Handgun.” (Tr. 522.) Howell was then
sentenced on this conviction alone.
[37] However, the trial court’s written judgment order shows that the court entered
judgments of conviction on both offenses of which the jury found Howell
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 16 of 21 guilty. 7 These two offenses were based on the same incident of criminal
conduct on March 21 and proven by the same evidence. “[T]wo or more
offenses are the ‘same offense’ in violation of Article 1, Section 14 of the
Indiana Constitution, if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Entry
of judgment on both offenses in the written judgment order thus violates double
jeopardy principles. Because the convictions as recorded on the judgment order
place Howell in double jeopardy, we reverse and remand this matter to the trial
court with instructions to correct the order and vacate the judgment as to
Carrying a Handgun without a License.
Abstract of Judgment [38] Howell next contends, and the State agrees, that the abstract of judgment,
which erroneously states that Howell was convicted of “35-42-2-2(b)/FC:
Criminal Recklessness (shot firearm into bldg or gathering place)” (App. 146),
7 The court’s written judgment order provides:
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Defendant, Demetrius R. Howell, is guilty of Count III, Carrying a Handgun without a License, a Class C felony and enters judgment of conviction thereon. IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Defendant, Demetrius R. Howell, is guilty of Convicted Felon in Possession of a Handgun, a Class C felony and enters judgment of conviction thereon. (App. 143.)
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 17 of 21 should be amended to reflect his actual conviction for Convicted Felon in
Possession of a Handgun. Although the judgment of conviction, not the
abstract of judgment, is controlling as to the defendant’s conviction and
sentence, see Robinson, 805 N.E.2d at 794, Howell has an interest in accurate
reporting of his offense to the DOC. We accordingly remand with instructions
to the court to correct the clerical error in the abstract of judgment to reflect his
actual conviction for Count III, Convicted Felon in Possession of a Handgun.
Sentence [39] Lastly, we turn to Howell’s contention that his eight-year sentence is
inappropriate.
[40] Article 7, Section 6 of the Indiana Constitution grants this Court authority to
independently review and revise a sentence imposed by the trial court. To
implement this grant of authority, 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.” Ind.
Appellate Rule 7(B). The analysis is not whether another sentence is more
appropriate, but whether the sentence imposed is inappropriate. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). The principal role of our review is to leaven
the outliers, and our review is very deferential to the trial court. Id. The
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Id.
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 18 of 21 [41] Howell was convicted of Convicted Felon in Possession of a Handgun and
sentenced to eight years in the Indiana Department of Correction, fully
executed. A Class C felony carries a fixed term of two to eight years, with the
advisory sentence being four years. I.C. § 35-50-2-6(a). Howell argues that
neither the nature of his offense nor his character warrants the maximum
sentence for a Class C felony.
[42] As to the nature of the offense, Howell was discovered with a loaded handgun
after a verbal altercation involving Lenoir and others. There is nothing
extraordinary about the nature of Howell’s offense.
[43] Regarding the character of the offender, Howell argues he was only twenty
years old at the time of his offense and thus the maximum sentence was
inappropriate. Despite his youth, Howell has amassed a lengthy criminal
history, including crimes of violence. As a juvenile, he first was charged with
Possession of a Knife on School Property. Later, he was adjudicated
delinquent of two ABC Violations, 8 False Reporting, Dangerous Possession of
a Firearm, Curfew Violation, Operating a Vehicle without Ever Receiving a
License, Escape (a Class D felony if committed by an adult), and False
Reporting. As an adult, Howell was charged with numerous misdemeanors
and felonies, including: Criminal Gang Activity, Receiving Stolen Property,
8 Presumably, “ABC violation,” which is designated a Class C misdemeanor on Howell’s presentence investigation report, refers to Illegal Possession of Alcohol by a Minor. See I.C. 7.1-5-7-7(a) (“It is a Class C misdemeanor for a minor to knowingly: (1) possess an alcoholic beverage; (2) consume it; or (3) transport it on a public highway when not accompanied by at least one (1) of his parents or guardians.”).
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 19 of 21 Carrying a Handgun without a License, Resisting Law Enforcement, Identity
Deception, and Criminal Recklessness. Howell pleaded guilty to Criminal
Gang Activity and Criminal Recklessness, each as a Class D felony. At the
time of sentencing in this case, charges were pending against Howell for:
Attempted Theft, Receiving Stolen Property, Battery Resulting in Bodily Injury,
Carrying a Handgun without a License, Illegal Possession of an Alcoholic
Beverage, Escape, and Theft. Four petitions to revoke probation were also
pending.
[44] Howell’s request at his sentencing hearing that the Court “show some leniency”
because “I got stuff that I feel like I should, that I should really attend to instead
of being in prison” speaks little of his character. (Tr. 532.) He further avowed
that he had “never been sentenced, no probation, never even been convicted in
this court, ma’am,” in an apparent attempt to downplay his prior criminal
history to the trial court. (Tr. 531.) And although he also testified that he has
“a family out there and people that really need me home” (Tr. 532), an
argument he renews on appeal, the presentence investigation report reveals that
he has no dependents and reported minimal employment history from which he
could have been supporting his other family members.
[45] As the trial court succinctly summarized in its sentencing order, Howell “has
violated the rules and terms of probation, GPS, and Work Release. He has also
already been sentenced to short-term incarceration. He has been given the
advantage of every available alternative to long-term incarceration.
Additionally, he has a history of crimes of violence.” (App. 149.) In light of
Court of Appeals of Indiana | Memorandum Decision 46A05-1409-CR-446 | June 30, 2015 Page 20 of 21 Howell’s substantial and continuing criminal history, pattern of noncompliance
with probationary terms, and lack of success with alternatives to long-term
incarceration, Howell’s sentence to eight years in the DOC is not inappropriate.
Conclusion [46] Howell’s substantial rights were not violated when the charging information
was amended to add Count III. There was sufficient evidence to sustain
Howell’s conviction for Convicted Felon in Possession of a Handgun. Howell’s
sentence was not inappropriate. However, because the trial court’s judgment
order indicates that Howell was convicted of two offenses based on the same
evidence, we remand with instructions to correct the order and vacate his
conviction for Carrying a Handgun without a License. We also remand with
instructions to correct a clerical error in the abstract of judgment to accurately
reflect his conviction for Convicted Felon in Possession of a Handgun.
[47] Affirmed in part, reversed in part, and remanded.
Riley, J., and Barnes, J., concur.
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