Dennis D. Nelms v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 18, 2020
• Docket: 20A-CR-911
• 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 Nov 18 2020, 8:32 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander W. Robbins Curtis T. Hill, Jr. The Law Office of Alex Robbins Attorney General of Indiana Bedford, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis D. Nelms, November 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-911 v. Appeal from the Morgan Superior Court State of Indiana, The Honorable Sara A. Dungan, Appellee-Plaintiff. Judge Trial Court Cause No. 55D03-1808-F3-1408

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 1 of 6 Statement of the Case

[1] Dennis Nelms (“Nelms”) appeals, following a jury trial, the sentence imposed

following his convictions for Level 5 felony battery by means of a deadly

weapon1 and Level 6 felony possession of methamphetamine.2 Nelms argues

that the trial court abused its discretion by failing to find, as a mitigating

circumstance, that his incarceration would impose an undue financial hardship

on his family. Concluding that the trial court did not abuse its discretion, we

affirm his sentence.

[2] We affirm.

Issue

Whether the trial court abused its discretion by failing to find, as a mitigating circumstance, that Nelms’ incarceration would impose an undue financial hardship on his family.

Facts

[3] On August 19, 2018, Nelms stabbed Chad Williams twice in the chest with a

knife during an altercation at a bar in Mooresville. When officers responded to

the bar, they found methamphetamine in Nelms’ pocket.

1 IND. CODE § 35-42-2-1. 2 I.C. § 35-48-4-6.1.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 2 of 6 [4] On August 21, 2018, the State charged Nelms with Level 3 felony aggravated

battery, Level 5 felony battery by means of a deadly weapon, and Level 6 felony

possession of methamphetamine. The trial court held a three-day jury trial on

February 5-7, 2020. The jury found Nelms guilty of Level 5 felony battery by

means of a deadly weapon and Level 6 felony possession of methamphetamine

and not guilty of Level 3 felony aggravated battery.

[5] At the subsequent sentencing hearing, Nelms explained that he and his wife had

filed for bankruptcy protection. Nelms also testified that he was not currently

employed but anticipated working at a seasonal construction job in the future.

During the argument portion of the hearing, Nelms’ counsel argued that he

“believe[d] that there [was] a justification that [incarceration] could result in

undue hardship to [Nelms’] family[.]” (Tr. Vol. 4 at 77). In response, the State

argued that incarceration is an undue hardship for anyone who commits a

crime and is found guilty.

[6] In determining Nelms’ sentence, the trial court considered the Pre-Sentence

Investigation Report (“PSI”), which set forth Nelms’ criminal history that

included two convictions for Class A misdemeanor operating a vehicle while

intoxicated, one conviction for Class D felony operating a vehicle while

intoxicated, and one conviction for Level 6 felony intimidation. Additionally,

the PSI indicated that Nelms had been released on bond at the time he had

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 3 of 6 committed the instant offenses.3 The PSI also revealed that Nelms had been

unemployed since 2016 and that his wife had been the primary source of

income for the family. Furthermore, the PSI indicated that Nelms did not have

any dependent children but that his adult daughter and her two children resided

in the family home.

[7] Thereafter, the trial court identified Nelms’ criminal history and the fact that he

had violated pretrial release as aggravating circumstances. When discussing

mitigating circumstances, the trial court noted that Nelms had previously done

well on probation and community corrections in the past, which indicated that

he was likely to respond affirmatively to probation or short-term

imprisonment.4 Thereafter, the trial court sentenced Nelms to four (4) years,

with two (2) years executed in the Department of Correction and two (2) years

suspended to probation for his Level 5 felony conviction and a concurrent time

served sentence for his Level 6 felony conviction. Nelms now appeals.

Decision

[8] Nelms argues that the trial court abused its discretion when sentencing him.

Sentencing decisions rest within the sound discretion of the trial court.

3 At the time Nelms committed the instant offenses, he was pending charges of Level 6 felony intimidation, Class B misdemeanor battery, and Class B misdemeanor disorderly conduct under cause number 55D03- 1804-F6-0615. Ultimately, Nelms was found guilty of Level 6 felony intimidation. 4 In its written sentencing order, the trial court stated that it did not find any statutory mitigating circumstances.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 4 of 6 Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218 (Ind. 2007). So long as the sentence is within the statutory range, it is

subject to review only for an abuse of discretion. Id. An abuse of discretion

will be found where 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

a number of ways, including: (1) failing to enter a sentencing statement; (2)

entering a sentencing statement that explains reasons for imposing a sentence

where the record does not support the reasons; (3) entering a sentencing

statement that omits reasons that are clearly supported by the record and

advanced for consideration; and (4) entering a sentencing statement in which

the reasons given are improper as a matter of law. Id. at 490-91.

[9] Here, Nelms contends that the trial court abused its discretion by failing to find,

as a mitigating circumstance, that his incarceration would impose an undue

financial hardship on his family. A trial court is not obligated to accept a

defendant’s claim as to what constitutes a mitigating circumstance. Rascoe v.

State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to

find a mitigating circumstance requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493. Absent special circumstances, trial courts are not

required to find that imprisonment will result in undue hardship. Dowdell v.

State, 720 N.E.2d 1146, 1154 (Ind. 1999).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 5 of 6 [10] At the sentencing hearing, Nelms testified that he and his wife had filed for

bankruptcy. He also explained that he was currently unemployed, and the PSI

shows that he had been unemployed since 2016. Moreover, the PSI indicates

that his wife is employed and that she had been the primary source of income

for the family. The PSI also states that Nelms had one adult daughter and no

dependent children. None of this evidence presents any special circumstances

establishing that the hardship on his family is both significant and clearly

supported by the record. See Benefield v. State, 904 N.E.2d 239, 247-48 (Ind. Ct.

App. 2009) (recognizing that incarceration “almost always” works a hardship

on others and concluding that the defendant failed to show “special

circumstances” because there were other people who could take care of the

defendant’s mother while she was incarcerated), trans. denied. Thus, the trial

court did not abuse its discretion by failing to find undue hardship as a

mitigating circumstance.

[11] Affirmed.

Kirsch, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-911 | November 18, 2020 Page 6 of 6