MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 27 2017, 10:15 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James D. Smith, February 27, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1609-CR-2149 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1601-F5-5
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 1 of 7 Statement of the Case [1] James D. Smith appeals his sentence following his conviction for battery, as a
Level 5 felony. Smith presents two issues for our review, namely, whether the
trial court abused its discretion when it sentenced him and whether his sentence
is inappropriate in light of the nature of the offense and his character. We
affirm.
Facts and Procedural History [2] On December 21, 2015, Smith went to see his ex-girlfriend, Annie Carter, at her
house in Lafayette. Smith began to argue with Carter, and he threw her to the
floor and hit her in the face with a liquor bottle. At some point, Carter’s
boyfriend, Zaccheues Ward, arrived at the house, and Smith physically
attacked him. Smith struck Ward in the head with an empty liquor bottle,
which caused Ward to fall down the basement stairs. Smith then went down to
the basement and struck Ward in the head multiple times with the bottle.
Smith left Ward lying on the basement floor and left the house. Smith did not
call for emergency medical help for Ward, who had sustained a skull fracture,
and Smith fled to Chicago in an attempt to avoid arrest for the battery.
[3] The State charged Smith with two counts of battery, as Level 5 felonies, and
one count of battery, as a Level 6 felony. The day before trial, Smith pleaded
guilty to one count of battery, as a Level 5 felony, and, in exchange for that
plea, the State dismissed the other two charges. The trial court accepted
Smith’s guilty plea and, following a sentencing hearing, sentenced Smith to five
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 2 of 7 years executed. In its sentencing statement, the trial court identified the
following mitigators: Smith’s guilty plea without the benefit of a plea
agreement and his acceptance of responsibility; his participation in
rehabilitative programs in jail; his difficult childhood. And the trial court
identified the following aggravators: his serious criminal history; his violation
of pre-trial release; prior petitions to revoke probation; failures to appear in
court; his flight to avoid arrest after committing the crime; and his high risk to
reoffend. This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion
[4] Smith first contends that the trial court abused its discretion when it sentenced
him. Generally, sentencing decisions are left to the sound discretion of the trial
court, and we review its decision only for an abuse of that discretion. Singh v.
State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the trial court.” Id.
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 3 of 7 trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal
quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218
(“Anglemyer II”).
[5] Smith maintains that the trial court abused its discretion when it identified as an
aggravating factor the probation department’s assessment that he was at a high
risk to reoffend. In support of that contention, Smith cites our supreme court’s
opinion in J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010), where the court held
that “the scores produced by . . . offender recidivism risk assessment
instruments do not function as aggravating or mitigating circumstances for the
purpose of determining the length of sentence appropriate for each defendant.”
But, as the State points out, our supreme court in J.S. also held that risk
assessment scores “may be considered to ‘supplement and enhance a judge’s
evaluation, weighing, and application of the other sentencing evidence in the
formulation of an individualized sentencing program appropriate for each
defendant.’” Id.
[6] We need not decide whether the trial court properly considered Smith’s high
risk to reoffend because, even if such consideration was improper, “‘when a
trial court improperly applies an aggravator but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld.’” Baumholser
v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716
N.E.2d 1273, 1278 (Ind. 1999) (internal citations omitted)). Smith does not Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 4 of 7 challenge the other aggravators identified by the trial court in support of his
five-year sentence, which is two years more than the advisory sentence for a
Level 5 felony. Ind. Code § 35-50-2-6(b) (2017). Again, the trial court also
identified as aggravating: Smith’s criminal history, which includes two felony
convictions, namely, conspiracy to distribute crack cocaine and criminal
recklessness, and nine misdemeanor convictions; his multiple failures to appear;
his multiple probation revocations; his violation of pre-trial release; and the fact
that he fled to avoid arrest after committing the instant offense. We are
confident that, had the trial court considered only those proper aggravators, it
would have sentenced Smith to five years executed. See Anglemyer I, 868
N.E.2d at 491 (holding remand for resentencing appropriate if we cannot say
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 27 2017, 10:15 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James D. Smith, February 27, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1609-CR-2149 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1601-F5-5
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 1 of 7 Statement of the Case [1] James D. Smith appeals his sentence following his conviction for battery, as a
Level 5 felony. Smith presents two issues for our review, namely, whether the
trial court abused its discretion when it sentenced him and whether his sentence
is inappropriate in light of the nature of the offense and his character. We
affirm.
Facts and Procedural History [2] On December 21, 2015, Smith went to see his ex-girlfriend, Annie Carter, at her
house in Lafayette. Smith began to argue with Carter, and he threw her to the
floor and hit her in the face with a liquor bottle. At some point, Carter’s
boyfriend, Zaccheues Ward, arrived at the house, and Smith physically
attacked him. Smith struck Ward in the head with an empty liquor bottle,
which caused Ward to fall down the basement stairs. Smith then went down to
the basement and struck Ward in the head multiple times with the bottle.
Smith left Ward lying on the basement floor and left the house. Smith did not
call for emergency medical help for Ward, who had sustained a skull fracture,
and Smith fled to Chicago in an attempt to avoid arrest for the battery.
[3] The State charged Smith with two counts of battery, as Level 5 felonies, and
one count of battery, as a Level 6 felony. The day before trial, Smith pleaded
guilty to one count of battery, as a Level 5 felony, and, in exchange for that
plea, the State dismissed the other two charges. The trial court accepted
Smith’s guilty plea and, following a sentencing hearing, sentenced Smith to five
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 2 of 7 years executed. In its sentencing statement, the trial court identified the
following mitigators: Smith’s guilty plea without the benefit of a plea
agreement and his acceptance of responsibility; his participation in
rehabilitative programs in jail; his difficult childhood. And the trial court
identified the following aggravators: his serious criminal history; his violation
of pre-trial release; prior petitions to revoke probation; failures to appear in
court; his flight to avoid arrest after committing the crime; and his high risk to
reoffend. This appeal ensued.
Discussion and Decision Issue One: Abuse of Discretion
[4] Smith first contends that the trial court abused its discretion when it sentenced
him. Generally, sentencing decisions are left to the sound discretion of the trial
court, and we review its decision only for an abuse of that discretion. Singh v.
State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the trial court.” Id.
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any—but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 3 of 7 trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (“Anglemyer I”) (internal
quotation marks and citations omitted), clarified on reh’g, 875 N.E.2d 218
(“Anglemyer II”).
[5] Smith maintains that the trial court abused its discretion when it identified as an
aggravating factor the probation department’s assessment that he was at a high
risk to reoffend. In support of that contention, Smith cites our supreme court’s
opinion in J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010), where the court held
that “the scores produced by . . . offender recidivism risk assessment
instruments do not function as aggravating or mitigating circumstances for the
purpose of determining the length of sentence appropriate for each defendant.”
But, as the State points out, our supreme court in J.S. also held that risk
assessment scores “may be considered to ‘supplement and enhance a judge’s
evaluation, weighing, and application of the other sentencing evidence in the
formulation of an individualized sentencing program appropriate for each
defendant.’” Id.
[6] We need not decide whether the trial court properly considered Smith’s high
risk to reoffend because, even if such consideration was improper, “‘when a
trial court improperly applies an aggravator but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld.’” Baumholser
v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716
N.E.2d 1273, 1278 (Ind. 1999) (internal citations omitted)). Smith does not Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 4 of 7 challenge the other aggravators identified by the trial court in support of his
five-year sentence, which is two years more than the advisory sentence for a
Level 5 felony. Ind. Code § 35-50-2-6(b) (2017). Again, the trial court also
identified as aggravating: Smith’s criminal history, which includes two felony
convictions, namely, conspiracy to distribute crack cocaine and criminal
recklessness, and nine misdemeanor convictions; his multiple failures to appear;
his multiple probation revocations; his violation of pre-trial release; and the fact
that he fled to avoid arrest after committing the instant offense. We are
confident that, had the trial court considered only those proper aggravators, it
would have sentenced Smith to five years executed. See Anglemyer I, 868
N.E.2d at 491 (holding remand for resentencing appropriate if we cannot say
with confidence that the trial court would have imposed the same sentence had
it properly considered reasons that enjoy support in the record). Accordingly,
the trial court did not abuse its discretion when it sentenced Smith.
Issue Two: Appellate Rule 7(B)
[7] Smith contends that his five-year sentence is inappropriate in light of the nature
of the offense and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 5 of 7 the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[8] Smith asserts that the battery against Ward “is a ‘typical’ offense of battery
resulting in serious bodily injury” and, thus, the nature of the offense does not
support an enhanced sentence. Appellant’s Br. at 10. We cannot agree. Smith,
with no apparent provocation, struck Ward in the head with a liquor bottle,
which caused Ward to fall down a flight of stairs. Smith then went down stairs
and struck Ward in the head with the bottle multiple times, fracturing his skull,
and Smith left the scene without calling 9-1-1. Had Smith merely struck Ward
in the head once and knocked him down the stairs, that would have been
sufficient to support the seriously bodily injury enhancement. But Smith did
not stop there. He continued his battery on Ward. We cannot say that Smith’s
five-year sentence is inappropriate in light of the nature of the offense.
[9] Smith also maintains that his sentence is inappropriate in light of his character.
In support of that contention, Smith points out that he pleaded guilty without
the benefit of an agreement and took responsibility for his actions. And Smith
cites the evidence that, while he was in jail, he: obtained a certificate of work
readiness and a certificate of college readiness; attended alcohol abuse classes;
attended church and bible study classes; and obtained an academic achievement
award for math and language studies. But, again, as the trial court found,
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 6 of 7 Smith’s criminal history is significant. Smith has two prior felony convictions
and nine misdemeanor convictions. He has failed to appear for court hearings
on multiple occasions over many years, and he has had his probation revoked
many times. In addition, Smith fled Lafayette and went to Chicago in an
attempt to avoid arrest after severely battering Ward. While Smith has
demonstrated a willingness to better himself while in jail for this offense, his
criminal history, lack of respect for court orders, and inability to successfully
complete probation support an enhanced sentence. We cannot say that Smith’s
sentence is inappropriate in light of his character.
[10] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2149 | February 27, 2017 Page 7 of 7