Elberta N. Jackson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 22, 2019
• Docket: 19A-CR-1325
• 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 22 2019, 8:47 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elberta N. Jackson, November 22, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1325 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1807-F4-39

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 1 of 6 Statement of the Case [1] Elberta N. Jackson appeals her sentence after she pleaded guilty to battery, as a

Level 5 felony; battery, as a Level 6 felony; and resisting law enforcement, as a

Class A misdemeanor. Jackson raises a single issue for our review, namely,

whether her aggregate sentence of four years, with all but her already-served

time suspended to probation, is inappropriate in light of the nature of the

offenses and her character. We affirm.

Facts and Procedural History [2] On July 20, 2018, Marion Police Department officers placed Jackson under

arrest. Jackson did not comply with the officers’ requests, however. In relevant

part, she refused to get in a police vehicle, and as a result officers had to “drag”

her into the vehicle. Tr. Vol. II at 11. Upon arriving at the jail, she “slammed

[her] body” into the body of an escorting officer. Id. at 12. And when officers

at the jail attempted to remove a ring from Jackson’s finger and take out a hair

tie, she “struggl[ed]” with them and bit one of the officers on the leg, leaving a

bite mark and bruising. Id. at 13.

[3] Among other offenses, the State charged Jackson with battery, as a Level 5

felony; battery, as a Level 6 felony; and resisting law enforcement, as a Class A

misdemeanor. After the court empaneled a jury but before the parties began to

try the case, Jackson agreed to plead guilty to those three offenses, and, in

exchange, the State dismissed the remaining counts.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 2 of 6 [4] Thereafter, the trial court held a sentencing hearing. Following that hearing,

the court ordered Jackson to serve an aggregate term of four years with all but

her time already served suspended to probation. In determining Jackson’s

sentence, the court found her criminal history to be an aggravating factor and

found her remorse, her history of mental-health issues, and that she was

“extremely emotionally distressed at the time the offenses were committed” to

be mitigating factors. Appellant’s App. Vol. 2 at 9-10. This appeal ensued.

Discussion and Decision [5] On appeal, Jackson asserts that her sentence is inappropriate in light of the

nature of the offenses and her character. Indiana Appellate Rule 7(B) provides

that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the

starting point the legislature has selected as an appropriate sentence for the

crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

And the Indiana Supreme Court has explained that “[t]he principal role of

appellate review should be to attempt to leaven the outliers . . . but not achieve

a perceived ‘correct’ result in each case. Defendant has the burden to persuade

us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).

[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 3 of 6 receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). Whether we regard a sentence as inappropriate at the end of the day

turns on “our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other facts that come to light in a given

case.” Id. at 1224. The question is not whether another sentence is more

appropriate, but rather whether the sentence imposed is inappropriate. King v.

State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court

“prevail[s] 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).

[7] Pursuant to Indiana Code Section 35-50-2-6 (2019), a person who commits a

Level 5 felony is subject to a term of imprisonment between one and six years,

with an advisory term of three years. Indiana Code Section 35-50-2-7 provides

that a person who commits a Level 6 felony is subject to a term of

imprisonment between six months and two and one-half years, with an

advisory term of one year. And Indiana Code Section 35-50-3-2 provides that a

person who commits a Class A misdemeanor may be imprisoned for up to one

year. Thus, a defendant who commits a Level 5 felony, a Level 6 felony, and a

Class A misdemeanor faces a maximum possible term of nine and one-half

years.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 4 of 6 [8] Jackson asserts on appeal that her sentence is inappropriate for the following

reasons: there was a large crowd when she was arrested; she was “upset that

day for a couple of reasons,” including the recent death of her brother; although

she slammed her body into one officer, she “didn’t take a swing at him”; “she

was having a bad day”; she pleaded guilty and, in exchange, obtained the

dismissal of at least one count the State could not prove anyway; she was

remorseful and later apologized to at least one of the officers in person; and she

has had “numerous traumatic experiences throughout her life” and related

mental-health issues. Appellant’s Br. at 12-15.

[9] We cannot say that Jackson’s aggregate sentence of four years, with all but time

served suspended to probation, is inappropriate in light of the nature of the

offenses. Jackson resisted numerous law enforcement officers as they placed

her under arrest and moved her to the jail. Her resistance included two

different physical altercations, and during one of those altercations she bit an

officer’s leg, leaving a visible bite mark. The nature of her offenses is not

“overcome by compelling evidence portraying in a positive light the nature of

the offense[s].” Stephenson, 29 N.E.3d at 122.

[10] Neither is her sentence inappropriate in light of her character. We

acknowledge, as the trial court did, that Jackson has appeared to be remorseful,

that she was, as she says, “having a bad day,” and that she has had a history of

mental-health issues. Appellant’s Br. at 13. Jackson has multiple prior felony

convictions, and she has multiple prior convictions for battery on an officer and

resisting law enforcement. She has also had numerous prior revocations of her

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 5 of 6 probation. Further, she pleaded guilty only after the court had already

empaneled a jury, which did not spare the State the time and expense of

preparing for trial. Accordingly, we cannot say that the evidence of her

character justifies overcoming our usual deference to the trial court on

sentencing. See Stephenson, 22 N.E.3d at 122.

[11] In sum, we affirm Jackson’s sentence.

[12] Affirmed.

Vaidik, C.J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 6 of 6