MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 30 2017, 7:29 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dennis R. Freeman, Jr., March 30, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1606-CR-1386 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1511-F5-329
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 1 of 7 Statement of the Case [1] Dennis Freeman (“Freeman”) appeals the sentence imposed following his
convictions for Level 5 felony battery,1 Level 6 felony criminal recklessness,2
Level 6 felony intimidation,3 and Class A misdemeanor resisting law
enforcement.4 He specifically contends that his seven-year aggregate sentence is
inappropriate in light of the nature of the offenses and his character. Because
we conclude that Freeman’s sentence is not inappropriate, we affirm the
judgment of the trial court.
[2] We affirm.
Issue The sole issue for our review is whether Freeman’s sentence is inappropriate.
Facts [3] At approximately 6:30 p.m. on November 17, 2015, Fort Wayne Police
Department Officer Richard Smith (“Officer Smith”) was dispatched to victim
Y.H.’s (“Y.H.”) home. When Officer Smith arrived at the scene, Y.H. exited
the house. She was naked from the waist up and covered in blood “like
1 IND. CODE § 35-42-2-1. 2 I.C. § 35-42-2-2. 3 I.C. § 35-45-2-1. 4 I.C. § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 2 of 7 someone had just poured a bucket of blood over the top of her head.” (Tr. 159).
She told the officer that Freeman, her boyfriend, had stabbed her in the head
with a knife and run from the house.
[4] Later that evening, Fort Wayne Police Department officers found forty-year-old
Freeman at a friend’s house. When Freeman noticed the officers approaching
the house, Freeman ran. One of the officers chased Freeman and yelled, “stop,
police,” several times. (Tr. 213). The officer eventually apprehended Freeman
and noticed a strong odor of an alcoholic beverage on Freeman’s breath.
Freeman was also “extremely angry.” (Tr. 214).
[5] Freeman was transported to the hospital for medical clearance because he had a
laceration on the top of his head and appeared to be intoxicated. While he was
at the hospital, Freeman yelled obscenities and kicked the walls. He also yelled
that he would have a Mexican cartel kill the officers. At one point, Freeman
looked directly at Fort Wayne Police Department Officer Tyler Clark (“Officer
Clark”) and read the officer’s name and badge number. Freemen told Officer
Clark, “[W]hen I get out of jail[,] I will find you on Google, I’ll find out where
you live, and I’ll come to your house and kill you and your family.” (Tr. 206).
[6] A jury convicted Freeman of Level 5 felony battery, Level 6 felony criminal
recklessness, Level 6 felony intimidation, and Class A misdemeanor resisting
law enforcement. Evidence at the sentencing hearing revealed that Freeman
has a criminal history that spans over twenty years and includes nine
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 3 of 7 misdemeanor convictions and one felony conviction. Freeman has also had his
probation revoked on more than one occasion.
[7] The trial court sentenced Freeman to five (5) years for the Level 5 felony battery
conviction, two (2) years each for the Level 6 felony criminal recklessness and
intimidation convictions, and one (1) year for the Class A misdemeanor
resisting law enforcement conviction. The trial court then ordered the sentence
for the Level 5 felony battery conviction to run concurrent to the sentence for
the Level 6 felony criminal recklessness conviction and the sentence for the
Level 6 felony intimidation conviction to run concurrent to the sentence for the
Class A misdemeanor resisting law enforcement conviction. Lastly, the trial
court ordered the sentence for the Level 5 battery conviction to run
consecutively to the sentence for the Level 6 felony intimidation conviction, for
an aggregate sentence of seven (7) years. Freeman now appeals his sentence.
Decision [8] Freeman’s sole argument is that his seven-year aggregate sentence is
inappropriate. 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. The defendant bears the burden of
persuading this Court that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on the “culpability of the defendant, the severity of the crime, the damage
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 4 of 7 done to others, and myriad other factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[9] The Indiana Supreme Court has further explained that “[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). “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).
[10] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, Freeman was convicted of one Level 5 felony, two Level 6 felonies, and
one Class A misdemeanor. The sentencing range for a Level 5 felony is
between one and six years, with an advisory sentence of three years. See I.C. §
35-50-2-6. 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. I.C. § 35-50-2-7.
The sentence for a Class A misdemeanor is not more than one year.
[11] Here, the trial court sentenced Freeman to five years for the Level 5 felony
battery conviction, two years each for the Level 6 felony criminal recklessness
and intimidation convictions, and one year for the Class A misdemeanor
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 30 2017, 7:29 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas C. Allen Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dennis R. Freeman, Jr., March 30, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1606-CR-1386 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D06-1511-F5-329
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 1 of 7 Statement of the Case [1] Dennis Freeman (“Freeman”) appeals the sentence imposed following his
convictions for Level 5 felony battery,1 Level 6 felony criminal recklessness,2
Level 6 felony intimidation,3 and Class A misdemeanor resisting law
enforcement.4 He specifically contends that his seven-year aggregate sentence is
inappropriate in light of the nature of the offenses and his character. Because
we conclude that Freeman’s sentence is not inappropriate, we affirm the
judgment of the trial court.
[2] We affirm.
Issue The sole issue for our review is whether Freeman’s sentence is inappropriate.
Facts [3] At approximately 6:30 p.m. on November 17, 2015, Fort Wayne Police
Department Officer Richard Smith (“Officer Smith”) was dispatched to victim
Y.H.’s (“Y.H.”) home. When Officer Smith arrived at the scene, Y.H. exited
the house. She was naked from the waist up and covered in blood “like
1 IND. CODE § 35-42-2-1. 2 I.C. § 35-42-2-2. 3 I.C. § 35-45-2-1. 4 I.C. § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 2 of 7 someone had just poured a bucket of blood over the top of her head.” (Tr. 159).
She told the officer that Freeman, her boyfriend, had stabbed her in the head
with a knife and run from the house.
[4] Later that evening, Fort Wayne Police Department officers found forty-year-old
Freeman at a friend’s house. When Freeman noticed the officers approaching
the house, Freeman ran. One of the officers chased Freeman and yelled, “stop,
police,” several times. (Tr. 213). The officer eventually apprehended Freeman
and noticed a strong odor of an alcoholic beverage on Freeman’s breath.
Freeman was also “extremely angry.” (Tr. 214).
[5] Freeman was transported to the hospital for medical clearance because he had a
laceration on the top of his head and appeared to be intoxicated. While he was
at the hospital, Freeman yelled obscenities and kicked the walls. He also yelled
that he would have a Mexican cartel kill the officers. At one point, Freeman
looked directly at Fort Wayne Police Department Officer Tyler Clark (“Officer
Clark”) and read the officer’s name and badge number. Freemen told Officer
Clark, “[W]hen I get out of jail[,] I will find you on Google, I’ll find out where
you live, and I’ll come to your house and kill you and your family.” (Tr. 206).
[6] A jury convicted Freeman of Level 5 felony battery, Level 6 felony criminal
recklessness, Level 6 felony intimidation, and Class A misdemeanor resisting
law enforcement. Evidence at the sentencing hearing revealed that Freeman
has a criminal history that spans over twenty years and includes nine
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 3 of 7 misdemeanor convictions and one felony conviction. Freeman has also had his
probation revoked on more than one occasion.
[7] The trial court sentenced Freeman to five (5) years for the Level 5 felony battery
conviction, two (2) years each for the Level 6 felony criminal recklessness and
intimidation convictions, and one (1) year for the Class A misdemeanor
resisting law enforcement conviction. The trial court then ordered the sentence
for the Level 5 felony battery conviction to run concurrent to the sentence for
the Level 6 felony criminal recklessness conviction and the sentence for the
Level 6 felony intimidation conviction to run concurrent to the sentence for the
Class A misdemeanor resisting law enforcement conviction. Lastly, the trial
court ordered the sentence for the Level 5 battery conviction to run
consecutively to the sentence for the Level 6 felony intimidation conviction, for
an aggregate sentence of seven (7) years. Freeman now appeals his sentence.
Decision [8] Freeman’s sole argument is that his seven-year aggregate sentence is
inappropriate. 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. The defendant bears the burden of
persuading this Court that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on the “culpability of the defendant, the severity of the crime, the damage
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 4 of 7 done to others, and myriad other factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[9] The Indiana Supreme Court has further explained that “[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). “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).
[10] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, Freeman was convicted of one Level 5 felony, two Level 6 felonies, and
one Class A misdemeanor. The sentencing range for a Level 5 felony is
between one and six years, with an advisory sentence of three years. See I.C. §
35-50-2-6. 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. I.C. § 35-50-2-7.
The sentence for a Class A misdemeanor is not more than one year.
[11] Here, the trial court sentenced Freeman to five years for the Level 5 felony
battery conviction, two years each for the Level 6 felony criminal recklessness
and intimidation convictions, and one year for the Class A misdemeanor
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 5 of 7 resisting law enforcement conviction. The trial court ultimately imposed an
aggregate sentence of seven years.
[12] With regard to the nature of the offenses, Freeman stabbed his girlfriend in the
head with a knife and later ran from police officers. While in the hospital,
Freeman yelled obscenities and kicked the walls. In addition, Freeman read an
officer’s name badge, threatened to look up the officer’s address on Google, go
to the officer’s house, and kill the officer and his family. We agree with the
State that “there is nothing positive to speak of concerning Freeman’s offense. .
. . Freeman’s behavior on the day of the crimes was violent and destructive.”
(State’s Br. 8).
[13] With regard to the nature of Freeman’s character, he has a criminal history that
spans over twenty years and includes nine misdemeanor convictions and one
felony conviction. Specifically, Freeman has misdemeanor convictions for
driving without a license, criminal mischief, criminal trespass, invasion of
privacy, criminal recklessness, and disorderly conduct. His felony conviction
was for battery, which is notably the same crime as one of his instant offenses.
Freeman has also violated the conditions of probation on more than one
occasion. His former contacts with the law have not caused him to reform
himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.
denied.
[14] Freeman has failed to persuade this Court that his seven-year aggregate
sentence for his convictions for Level 5 felony battery, Level 6 felony criminal
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 6 of 7 recklessness, Level 6 felony intimidation, and Class A misdemeanor resisting
law enforcement is inappropriate.
[15] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1606-CR-1386 | March 30, 2017 Page 7 of 7