Donald C. Powers, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 7, 2017
• Docket: 16A05-1612-CR-2855
• 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 Aug 07 2017, 8:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donald C. Powers, Jr., August 7, 2017 Appellant-Defendant, Court of Appeals Case No. 16A05-1612-CR-2855 v. Appeal from the Decatur Superior Court State of Indiana, The Honorable Matthew Bailey, Appellee-Plaintiff Judge Trial Court Cause Nos. 16D01-1502-F2-109 16D01-1507-F1-482

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 1 of 13 [1] Donald C. Powers, Jr. appeals the aggregate thirty-year sentence imposed after

he pled guilty under separate cause numbers to Level 3 felony burglary 1 and

Level 3 felony attempted aggravated battery. 2 Powers raises one issue on

appeal, which we restate as whether his sentences are inappropriate in light of

the nature of his offenses and his character. We affirm.

Facts and Procedural History [2] On February 27, 2015, Powers was subject to a no-contact order that was

imposed as a condition of bail in a Level 5 felony case against Powers in Ripley

County. That no-contact order prohibited Powers from contacting his wife,

Shannon, from whom Powers was estranged. Shannon was living in a house

she was renting for herself, where Powers had never lived, and to which

Shannon had never given Powers access. Powers was living elsewhere.

[3] On that day, Powers broke into Shannon’s home. She repeatedly asked him to

leave, but Powers threw her down on the couch and began choking her.

Shannon tried to yell to alert her neighbor that she needed help. Powers put his

hand over her mouth so that she could not breathe, and he threatened to kill

her. Powers hit Shannon in the mouth causing her to bleed. As she was trying

to breathe and fight Powers off, Powers pulled a knife and said “is this really

the way you want to go?” (State’s Ex. 1 at 9.) Powers then said, “You don’t

1 Ind. Code § 35-43-2-1(2) (2014). 2 Ind. Code §§ 35-41-5-1 (attempt) (2014); 35-42-2-1.5 (aggravated battery) (2014).

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 2 of 13 have to do this. We could get back together, and everything would be fine.”

(Id.) Shannon managed to get outside the house, but the altercation continued

and Powers tackled her as she tried to call 911. After Powers left, Shannon

went to the emergency room, where she was found to have a sprained left

ankle, bruises around her neck and her rib cage, bruises and scratches on her

arm, and a busted lip.

[4] After visiting the emergency room, Shannon reported the event to police and

provided sworn testimony of the events before a judge, who issued a warrant for

Powers’ arrest. The State charged Powers with Level 2 felony burglary with

intent to commit intimidation or confinement, while armed with a deadly

weapon. 3 Over the next two weeks, Shannon had telephone contact with

Powers and tried to persuade him to turn himself in to police. Instead Powers

threatened to kill himself and blamed Shannon for his situation.

[5] At some point, Powers told police he would turn himself in, but he did not

arrive when he said he would, so the Decatur County Sheriff’s Department,

with assistance from the Indiana State Police fugitive team, began looking for

him to serve the arrest warrant. When those authorities could not locate

Powers, the Sheriff’s Department requested assistance from a task force headed

by the United States Marshall’s Service. Trooper Shaun Hannon, a detective

with the Indiana State Police, who also served on the United States Marshall’s

3 Ind. Code § 35-43-2-1(3)(A) (2014).

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 3 of 13 Service task force, was assigned the duty of serving Powers with the warrant.

Detective Hannon was able to locate Powers by tracking his cell phone, and on

March 11, 2015, twelve task force officers approached the house where they

believed Powers was hiding. Officers were told Powers had fled the house, was

wearing a ghillie suit, 4 did not want to go back to prison, was armed, and was

prepared to take “extreme measures” to avoid being taken into custody. (Tr. at

46.) After learning Powers had fled the house, Detective Hannon requested

additional assistance. Approximately sixty police officers, some dogs, and a

helicopter then searched the surrounding woods but were unable to locate

Powers.

[6] Detective Hannon decided to call off the search, but he and Trooper Justin

Bean remained at the house to see if Powers would return. While there, they

spoke by cell phone to Powers’ brother, who told them: “Donald’s not going to

give up . . . he’s got a gun . . . you guys are probably gonna shoot him.” (Id. 52-

53.) During that phone call, police heard a faint knock at a door on the back of

the house, so they exited from a door on the side of the house to investigate.

Detective Hannon went out first, armed with a taser, and Trooper Bean

followed with a gun to provide cover for Detective Hannon. Trooper Bean

testified, “I knew that he had made the decision to go less than lethal and uh,

that I made the decision to, to be his cover and to make sure that nothing

4 Detective Hannon testified a ghillie suit is clothing typically worn by hunters and military snipers, and it is designed to help the wearer blend into his surroundings so that he cannot be seen.

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 4 of 13 happened to either him or me.” (Id. at 56.) As Detective Hannon rounded the

corner of the house, he issued commands to Powers and then deployed his

taser. Trooper Bean followed around the corner and saw the taser “was

ineffective, I saw [Powers] start coming back up and that’s when I saw the

barrel of [Powers’] shot gun and another hand coming up . . . and that’s when I

was given my commands and I started . . . firing.” (Id. at 55.) After Trooper

Bean fired a couple of rounds, Powers’ “shot gun went off,” (id. at 56), and it

“looked like a torch coming out of the end of that . . . shot gun, a big fireball

coming toward you.” (Id. at 56-57.) Neither Detective Hannon nor Trooper

Bean was injured during the gunfight, but Powers’ spinal cord was severed,

leaving him paralyzed in all but his neck and one arm. For firing his gunshot

during the confrontation with the two Troopers, the State charged Powers with

one count of Level 1 felony attempted murder. 5

[7] Nearly eighteen months after the shooting, Powers and the State entered a

conditional guilty plea agreement. The State agreed to amend the charges from

Level 2 felony burglary to Level 3 felony burglary, and from Level 1 felony

attempted murder to Level 3 felony attempted aggravated battery. In exchange,

Powers agreed to receive consecutive sentences that were between nine and

fifteen years each. The trial court accepted that agreement.

5 Ind. Code §§ 35-41-5-1 (attempt) (2014) & 35-42-1-1(1) (murder) (2014).

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 5 of 13 [8] After hearing evidence, the court entered two fifteen-year sentences to be served

consecutively for an aggregate sentence of thirty years with six months of the

burglary sentence suspended to probation. In support thereof, the court found

three aggravators: Powers’ criminal history, which consisted of fourteen prior

convictions, including felony resisting law enforcement; (2) Powers’ violation of

the no-contact order from Ripley County; and (3) the fact Shannon’s injuries

from the burglary were greater than necessary to prove the elements of the

charged offense. As for mitigators, the trial court accepted only Powers’

remorse as a significant mitigating factor. The court noted Powers’ guilty plea,

but found it was a pragmatic decision and had taken over a year to be entered,

such that the court declined to give it significant weight. The court also refused

to accept as mitigators Powers’ health needs, any hardship on his daughter from

his incarceration, and his alleged probability to respond positively to probation.

Discussion and Decision [9] Powers contends neither his offenses nor his character warrant thirty years in

prison. Indiana Appellate Rule 7(B) provides we “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, [we

find] the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Our review is deferential to the trial court’s decision,

and our goal is to determine whether the defendant’s sentence is inappropriate,

not whether some other sentence would be more appropriate. Conley v. State,

972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. An appellant has the burden to

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 6 of 13 1073, 1080 (Ind. 2006). Revision of a sentence under Rule 7(B) requires the

appellant demonstrate his sentence is “inappropriate in light of both the nature

of the offenses and his character.” Williams v. State, 891 N.E.2d 621, 633 (Ind.

Ct. App. 2008) (emphasis in original).

[10] With respect to the nature of the offenses, the advisory sentence is the starting

point for determining the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The

sentencing range for a Level 3 felony is three to sixteen years, with the advisory

sentence being nine years. Ind. Code § 35-50-2-5 (2014). Thus, for each of

Powers’ convictions, the court imposed sentences that were toward the top of

the range of possible sentences. When determining the appropriateness of a

deviation from the advisory sentence, we consider whether there is anything

more or less egregious about the offense committed by the defendant that

makes it different from the “typical” offense accounted for by the legislature

when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct.

App. 2008), trans. denied.

[11] Level 3 felony aggravated battery occurs when a person “knowingly or

intentionally inflicts injury on a person that creates a substantial risk of death or

causes: (1) serious permanent disfigurement; (2) protracted loss or impairment

of the function of a bodily member or organ; or (3) the loss of a fetus.” Ind.

Code § 35-42-2-1.5 (2014). An “attempt” occurs when “acting with the

culpability required for commission of the crime, the person engages in conduct

that constitutes a substantial step toward commission of the crime.” Ind. Code

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 7 of 13 § 35-41-5-1 (2014). Powers’ plea of guilty was based on his firing a 12-gauge

shotgun at not one, but two, police officers who were attempting to serve an

arrest warrant on him. Powers knew about the arrest warrant and about the

officers looking for him, but rather than turn himself in to police, as he had

promised he would do, Powers put on camouflage, armed himself with a

weapon, and hid in the woods. Powers’ claim that he did not mean to fire at

officers does not change the facts his shotgun was loaded and fired as he moved

the barrel in the direction of the officers.

[12] Level 3 felony burglary occurs when a person “breaks and enters the building or

structure of another person, with the intent to commit a felony or theft in it . . .

[and it] results in bodily injury to any person other than a defendant.” Ind.

Code § 35-43-2-1 (2014). When Powers broke into Shannon’s house, he did not

just commit burglary, he also violated a no-contact order that had been court

ordered as a condition of his parole in another felony case. He was armed with

and threatened to harm Shannon with a knife, such that his behavior satisfied

the elements of Level 2 felony burglary. See Ind. Code § 35-43-2-1(3)(A) (crime

is Level 2 felony if “committed while armed with a deadly weapon”). His

conviction required “bodily injury,” but any one of the many injuries Shannon

sustained -- a sprained ankle, bruising around her neck, ribs, and wrists, and

scrapes to her arm and a bloody lip -- would have satisfied the statutory

requirement. Thus, we agree with the trial court that she had more injuries

than required to prove Powers’ burglary.

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 8 of 13 [13] There is nothing about the nature of Powers’ offenses that would suggest a

thirty-year sentence is inappropriate. Nor do we believe the nature of those

offenses is somehow mitigated, as Powers asserts, by the facts that Powers

failed to obtain the treatment he needed for his alleged heroin addiction and is

confined to a wheelchair as a result of his decision to point a shotgun at police

officers. Thus, we turn to Powers’ character.

[14] Our review of an offender’s character begins with a defendant’s criminal

history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

significance of a defendant’s criminal history depends on the nature, number,

and gravity of the prior offenses in relation to the current offense. Id. Powers

was convicted of Class A misdemeanor theft in 1999; Class A misdemeanor

possession of marijuana and five counts of Class C misdemeanor illegal

possession of alcoholic beverages in 2001; Class B misdemeanor public

intoxication and Class A misdemeanor driving while suspended in 2003; Class

A misdemeanor operating while intoxicated and Class D felony resisting law

enforcement in 2004; Class D felony theft in 2005; and Class B misdemeanor

public intoxication in 2007. Powers committed the instant crimes while on

parole for a Level 5 felony alleged to have been committed against his ten-year-

old daughter, and in violation of a no-contact order entered as a condition of

that parole.

[15] Powers testified he takes full responsibility for the crimes committed in these

cases, and the trial court found his remorse genuine. We have no reason to

doubt the trial court’s finding. However, we agree with the State that Powers’

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 9 of 13 injuries, while tragic, are not relevant to determining whether a thirty-year

sentence is inappropriate for his character. Further, Powers’ criminal history is

extensive. After due consideration, we conclude that his aggregate thirty-year

sentence is not inappropriate in light of the nature of his offenses and his

character.

Conclusion [16] For the foregoing reasons, we affirm Powers’ aggregate sentence of thirty years.

[17] Affirmed.

Pyle, J., concurs.

Brown, J., dissents with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 10 of 13 IN THE COURT OF APPEALS OF INDIANA

Donald C. Powers, Jr., Court of Appeals Case No. 16A05-1612-CR-2855 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Brown, Judge, dissenting.

[18] I respectfully dissent from the majority’s conclusion that Powers’s aggregate

sentence of thirty years is not inappropriate. Powers was sentenced to the

thirty-year maximum provided under the plea agreement with six months

suspended to probation. With respect to the nature of the offense, I recognize

that he fled into the woods when law enforcement arrived to serve an arrest

warrant and ultimately discharged a shotgun. His testimony was that he tried

to shoot himself. Whether or not that’s true, he was shot in the back by an Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 11 of 13 officer, his spine was severed, he cannot move from just below his armpits

down, and he will be confined to a wheelchair for the rest of his life. Powers

testified that, while in the general population, another inmate helped him by

picking him up, placing him in a shower chair and pushing him into the

shower, and then picking him up and placing him back in his bed. The

presentence investigation report states that he is paralyzed from his chest down

as a result of being shot multiple times and he suffers from pressure sores on his

hip and has stomach issues. His physical ability to reoffend would be quite low

compared with able-bodied individuals and he is facing a life sentence of

confinement to a wheelchair.

[19] As for his character, Powers pled guilty pursuant to a plea agreement. The

record reflects that his criminal history is comprised primarily of class B and

class C misdemeanors, with his last offense occurring in 2007. He took full

responsibility for his crimes, stating his actions were one hundred percent his

fault, apologized to the officers, and stated it was his own fault he was in a

wheelchair. Shannon Powers testified that her first nine years of her marriage

to Powers were the best years of her life, that things changed when he did not

stop using drugs, and that all of his bad actions occurred in the span of about

six months. She agreed to provide the constant medical care he needs. Powers

has visited Centerstone as a guest speaker to inspire individuals to stop using

heroin by seeing him in a wheelchair and hearing his story.

[20] In light of the fact Powers received an aggregate executed sentence six months

shy of the maximum contemplated by his plea agreement, his remorse, and the

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 12 of 13 fact he was rendered paralyzed from the chest down and confined to a

wheelchair, I would remand for the trial court to resentence Powers to the

advisory sentence of ten years for his conviction for burglary and ten years for

his conviction for attempted aggravated battery and for those sentences to be

served consecutively for an aggregate executed sentence of twenty years with

six months suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 16A05-1612-CR-2855 | August 7, 2017 Page 13 of 13