MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 29 2020, 11:04 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 Timothy J. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Thomas, April 29, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2159 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1801-FA-1615
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 1 of 8 Case Summary
[1] Donald Thomas appeals his sentence after his conviction for rape, a Class A
felony, and criminal deviate conduct, a Class A felony. We affirm.
Issue
[2] Thomas raises one issue for our review, which we restate as whether Thomas’
sentence violates his Sixth Amendment rights.
Facts
[3] On September 2, 1998, A.A. lived on the second floor of an apartment complex
in Marion County. Earlier in the day, while retrieving a belonging from her
vehicle, A.A. noticed a man she did not know, later identified as Thomas,
walking in the street of the apartment complex. A.A. returned to her apartment
and, shortly thereafter, Thomas knocked on her apartment door.
[4] Thomas asked if he could use A.A.’s telephone to call work. A.A. allowed
Thomas to use the telephone outside of her apartment. After Thomas was done
using the telephone, he told A.A. that he needed to call his work again in fifteen
minutes. Fifteen minutes later, Thomas returned, and A.A. allowed him to use
the telephone again. While Thomas was using the telephone, A.A. began
cleaning dishes inside her apartment. Suddenly, Thomas was standing next to
A.A., pointing a gun at A.A.’s head.
[5] Thomas then raped A.A. and forced A.A. to perform oral sex on him while he
pointed a gun at A.A.’s back. Thomas placed a pillow over A.A.’s face and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 2 of 8 began to suffocate her. A.A. fought back, and Thomas stopped. While still in
A.A.’s apartment, Thomas used a bathroom towel. Thomas left a few
moments later and told A.A. to wait fifteen minutes before calling police.
[6] When Thomas left, A.A. realized her phone had no dial tone. A.A. jumped off
her second story balcony and found a woman in the street of the apartment
complex who called law enforcement.
[7] Officers from the Marion County Sheriff’s Office, now the Indianapolis
Metropolitan Police Department (“IMPD”), 1 were dispatched to A.A.’s home.
The officers collected items from A.A.’s apartment, including the towel
Thomas used in the bathroom. A rape kit was performed on A.A. at the
hospital. No suspects were identified at that time, and the case was dormant
until 2016.
[8] In October 2016, Detective Michelle Floyd, with IMPD, was assigned to
investigate a “cold case”—the assault at A.A.’s apartment. Detective Floyd
contacted A.A. and requested A.A. to identify the perpetrator of the 1998
assault by way of a photo array containing Thomas’ photograph. Detective
Floyd also obtained Thomas’ DNA from the bathroom towel that was collected
and retained by IMPD, as evidence in the case. DNA testing was conducted on
a sample taken from the towel and a sample taken from Thomas pursuant to a
November 15, 2016 court order. The result of the DNA test revealed seminal
1 According to Detective Michelle Floyd, the police departments merged in 2007.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 3 of 8 material on the towel, which matched the DNA profile of Thomas, “estimated
to occur once in more than 330 billion unrelated individuals.” Tr. Vol. III p.
14.
[9] On January 16, 2018, the State charged Thomas with Count I, rape, a Class A
felony; and Count II, criminal deviate conduct, a Class A felony. A jury trial
was held in July 2019, and witnesses testified to the foregoing facts. The jury
found Thomas guilty of both counts.
[10] On August 23, 2019, the trial court held Thomas’ sentencing hearing. The trial
court found as aggravating factors: (1) the harm, injury, loss, or damage
suffered by the victim was greater than necessary; (2) Thomas’ criminal
history; 2 and (3) Thomas’ probation violations. The trial court found as
mitigating factors: (1) Thomas’ criminal history appears to end in 2009; and (2)
Thomas was his elderly mother’s caretaker. 3
[11] In its oral sentencing statement, the trial court identified the “most serious
aggravator” as the nature of the offense and the impact that the offense had on
2 Thomas’ criminal history includes convictions for: battery resulting in bodily injury, a Class A misdemeanor, and a subsequent probation revocation in 1991; criminal confinement, a Class D felony, and a subsequent probation revocation in 1992; residential entry, a Class D felony in 1996; public intoxication, a Class B misdemeanor in 1997; operating a vehicle with an alcohol concentration equivalent to at least .08, a Class C misdemeanor in 2003 and subsequent probation revocation; operating a vehicle while intoxicated endangering a person, a Class D felony, possession of a controlled substance, a Class D felony, and a subsequent probation revocation in 2004; and possession of cocaine, a Class D felony in 2006. Thomas’ pre- sentence investigation report also lists a charge for “possession” in Baltimore County, Maryland, in 1994. No other information regarding this charge was provided. 3 The trial court entered a written supplemental sentencing statement on August 23, 2019, where these factors were identified.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 4 of 8 A.A. Id. at 67. At the end of the trial court’s oral sentencing statement, the
trial court asked if “there [was] any legal defect in [the trial court’s] sentence or
anything that [the trial court has] forgotten?” Id. at 71. Thomas’ counsel
responded: “Not on behalf of the Defendant, Your Honor.” Id.
[12] The trial court sentenced Thomas to thirty-five years on each count to run
consecutively for an aggregate sentence of seventy years. Thomas now appeals
his sentence.
Analysis
[13] Thomas argues the trial court violated his Sixth Amendment rights by failing to
apply the sentencing scheme in effect at the time of the offense in 1998. Our
Supreme Court held that we must apply the sentencing scheme in effect at the
time of the defendant’s offense. See Robertson v. State, 871 N.E.2d 280, 286 (Ind.
2007) (“Although Robertson was sentenced after the amendments to Indiana’s
sentencing scheme, his offense occurred before the amendments were effective
so the pre-Blakely sentencing scheme applies to Robertson’s sentence.”).
[14] At the time of this offense, in 1998, the presumptive sentencing scheme was in
effect instead of the current advisory sentencing scheme. Indiana’s presumptive
sentencing system, however, was found to “run[] afoul of the Sixth
Amendment” pursuant to Blakely v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 29 2020, 11:04 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 Timothy J. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Thomas, April 29, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2159 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1801-FA-1615
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 1 of 8 Case Summary
[1] Donald Thomas appeals his sentence after his conviction for rape, a Class A
felony, and criminal deviate conduct, a Class A felony. We affirm.
Issue
[2] Thomas raises one issue for our review, which we restate as whether Thomas’
sentence violates his Sixth Amendment rights.
Facts
[3] On September 2, 1998, A.A. lived on the second floor of an apartment complex
in Marion County. Earlier in the day, while retrieving a belonging from her
vehicle, A.A. noticed a man she did not know, later identified as Thomas,
walking in the street of the apartment complex. A.A. returned to her apartment
and, shortly thereafter, Thomas knocked on her apartment door.
[4] Thomas asked if he could use A.A.’s telephone to call work. A.A. allowed
Thomas to use the telephone outside of her apartment. After Thomas was done
using the telephone, he told A.A. that he needed to call his work again in fifteen
minutes. Fifteen minutes later, Thomas returned, and A.A. allowed him to use
the telephone again. While Thomas was using the telephone, A.A. began
cleaning dishes inside her apartment. Suddenly, Thomas was standing next to
A.A., pointing a gun at A.A.’s head.
[5] Thomas then raped A.A. and forced A.A. to perform oral sex on him while he
pointed a gun at A.A.’s back. Thomas placed a pillow over A.A.’s face and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 2 of 8 began to suffocate her. A.A. fought back, and Thomas stopped. While still in
A.A.’s apartment, Thomas used a bathroom towel. Thomas left a few
moments later and told A.A. to wait fifteen minutes before calling police.
[6] When Thomas left, A.A. realized her phone had no dial tone. A.A. jumped off
her second story balcony and found a woman in the street of the apartment
complex who called law enforcement.
[7] Officers from the Marion County Sheriff’s Office, now the Indianapolis
Metropolitan Police Department (“IMPD”), 1 were dispatched to A.A.’s home.
The officers collected items from A.A.’s apartment, including the towel
Thomas used in the bathroom. A rape kit was performed on A.A. at the
hospital. No suspects were identified at that time, and the case was dormant
until 2016.
[8] In October 2016, Detective Michelle Floyd, with IMPD, was assigned to
investigate a “cold case”—the assault at A.A.’s apartment. Detective Floyd
contacted A.A. and requested A.A. to identify the perpetrator of the 1998
assault by way of a photo array containing Thomas’ photograph. Detective
Floyd also obtained Thomas’ DNA from the bathroom towel that was collected
and retained by IMPD, as evidence in the case. DNA testing was conducted on
a sample taken from the towel and a sample taken from Thomas pursuant to a
November 15, 2016 court order. The result of the DNA test revealed seminal
1 According to Detective Michelle Floyd, the police departments merged in 2007.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 3 of 8 material on the towel, which matched the DNA profile of Thomas, “estimated
to occur once in more than 330 billion unrelated individuals.” Tr. Vol. III p.
14.
[9] On January 16, 2018, the State charged Thomas with Count I, rape, a Class A
felony; and Count II, criminal deviate conduct, a Class A felony. A jury trial
was held in July 2019, and witnesses testified to the foregoing facts. The jury
found Thomas guilty of both counts.
[10] On August 23, 2019, the trial court held Thomas’ sentencing hearing. The trial
court found as aggravating factors: (1) the harm, injury, loss, or damage
suffered by the victim was greater than necessary; (2) Thomas’ criminal
history; 2 and (3) Thomas’ probation violations. The trial court found as
mitigating factors: (1) Thomas’ criminal history appears to end in 2009; and (2)
Thomas was his elderly mother’s caretaker. 3
[11] In its oral sentencing statement, the trial court identified the “most serious
aggravator” as the nature of the offense and the impact that the offense had on
2 Thomas’ criminal history includes convictions for: battery resulting in bodily injury, a Class A misdemeanor, and a subsequent probation revocation in 1991; criminal confinement, a Class D felony, and a subsequent probation revocation in 1992; residential entry, a Class D felony in 1996; public intoxication, a Class B misdemeanor in 1997; operating a vehicle with an alcohol concentration equivalent to at least .08, a Class C misdemeanor in 2003 and subsequent probation revocation; operating a vehicle while intoxicated endangering a person, a Class D felony, possession of a controlled substance, a Class D felony, and a subsequent probation revocation in 2004; and possession of cocaine, a Class D felony in 2006. Thomas’ pre- sentence investigation report also lists a charge for “possession” in Baltimore County, Maryland, in 1994. No other information regarding this charge was provided. 3 The trial court entered a written supplemental sentencing statement on August 23, 2019, where these factors were identified.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 4 of 8 A.A. Id. at 67. At the end of the trial court’s oral sentencing statement, the
trial court asked if “there [was] any legal defect in [the trial court’s] sentence or
anything that [the trial court has] forgotten?” Id. at 71. Thomas’ counsel
responded: “Not on behalf of the Defendant, Your Honor.” Id.
[12] The trial court sentenced Thomas to thirty-five years on each count to run
consecutively for an aggregate sentence of seventy years. Thomas now appeals
his sentence.
Analysis
[13] Thomas argues the trial court violated his Sixth Amendment rights by failing to
apply the sentencing scheme in effect at the time of the offense in 1998. Our
Supreme Court held that we must apply the sentencing scheme in effect at the
time of the defendant’s offense. See Robertson v. State, 871 N.E.2d 280, 286 (Ind.
2007) (“Although Robertson was sentenced after the amendments to Indiana’s
sentencing scheme, his offense occurred before the amendments were effective
so the pre-Blakely sentencing scheme applies to Robertson’s sentence.”).
[14] At the time of this offense, in 1998, the presumptive sentencing scheme was in
effect instead of the current advisory sentencing scheme. Indiana’s presumptive
sentencing system, however, was found to “run[] afoul of the Sixth
Amendment” pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), “because it mandates both a fixed term and permits judicial discretion in
finding aggravating or mitigating circumstances to deviate from the fixed term.”
Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005). Under Blakely, therefore:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 5 of 8 a trial court may not enhance a sentence based on additional facts, unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; or (4) facts found by the sentencing judge after the defendant has waived Apprendi [v. New Jersey, 530 U.S. 466, 490 (2000)] rights and consented to judicial fact[-]finding.
Robertson, 871 N.E.2d at 286 (emphasis added).
[15] In 2005, our Supreme Court held:
First, as a new rule of constitutional procedure, we will apply Blakely retroactively to all cases on direct review at the time Blakely was announced. Second, a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyering. Third, those defendants who did not appeal their sentence at all will have forfeited any Blakely claim.
Smylie, 823 N.E.2d at 690-91. 4
[16] Subsequently, Indiana amended its sentencing scheme to the advisory
sentencing scheme “apparently. . . to resolve the Sixth Amendment problem
Blakely presented.” Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). The
new sentencing scheme still required trial courts to enter sentencing statements
4 In Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005), our Supreme Court again allowed a defendant to raise a Blakely claim for the first time on appeal when the sentencing hearing occurred two weeks after Blakely was issued. See Kincaid, 837 N.E.2d at 1010. Thus, our Supreme Court ordered our Court to review Kincaid’s Blakely claim on the merits.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 6 of 8 which identified the aggravating and mitigating factors that led to imposition of
a particular sentence. See id. at 490.
[17] Turning to the present case, at the time of Thomas’ crime, in 1998, the prior
sentencing scheme was in effect and, therefore, applied to Thomas. Under the
prior sentencing scheme, the sentence for a Class A felony was a fixed term of
thirty years, with not more than twenty years added for aggravating
circumstances or not more than ten years subtracted for mitigating
circumstances. Ind. Code § 35-50-2-4 (1995). The trial court sentenced
Thomas to thirty-five years for each Class A felony, to run consecutively for an
aggregate sentence of seventy years.
[18] Thomas argues that he was entitled to have a jury determine whether the
additional facts surrounding the nature of the offense and impact on the victim
should have constituted an aggravating factor pursuant to Blakely’s application
to the prior sentencing scheme. The State responds that Thomas waived this
argument because Thomas did not object at the time of sentencing, even when
invited by the trial court to do so. We agree with the State that Thomas has
waived this argument. Although cases such as Smylie and Kincaid have allowed
defendants to raise the Blakely issue for the first time on direct appeal, Thomas,
unlike the defendants in those cases, was sentenced many years after Blakely
was handed down, and these exceptions do not apply.
[19] Thomas’ sentencing hearing occurred approximately fifteen years after Blakely.
If Thomas wanted the jury to determine these aggravating factors, he should
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 7 of 8 have objected at sentencing. At the very least, Thomas should have objected
when the trial court invited the objection. To allow Thomas to do otherwise
would allow Thomas to sit by, wait to see what sentence he receives from the
trial court, and then claim error on appeal if he is not in favor of the sentence he
received. See Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998) (“[A]
party may not sit idly by, permit the court to act in a claimed erroneous
manner, and then attempt to take advantage of the alleged error at a later
time.”) (citations omitted). Accordingly, Thomas’ sole argument on appeal is
waived. 5 See Muncy v. State, 834 N.E.2d 215, (Ind. Ct. App. 2005) (“Muncy did
not object on Sixth Amendment grounds during his sentencing hearing and
thereby ‘forfeited [his] ability to appeal [his] sentence on Blakely grounds.’”)
(quoting Smylie, 823 N.E.2d at 689).
Conclusion
[20] Thomas waived his argument by failing to object at his sentencing hearing,
especially when the trial court specifically invited the objection. Accordingly,
we affirm.
[21] Affirmed.
Riley, J., and Mathias, J., concur.
5 We, therefore, need not address Thomas’ argument that the trial court sentenced him improperly to consecutive sentences because his argument rests on a finding that one of the aggravators was improper under Blakely.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020 Page 8 of 8