MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 9:52 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Derick W. Steele Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Burns, August 7, 2015
Appellant-Defendant, Court of Appeals Case No. 34A02-1501-CR-11 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Judge Appellee-Plaintiff Case No. 34C01-1404-MR-89
Crone, Judge.
Case Summary [1] Jeffrey Burns appeals his twenty-year sentence for class B felony aggravated
battery. The dispositive issue presented for our review is whether the sentence is
inappropriate in light of the nature of the offense and the character of the
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 1 of 6 offender. Finding that Burns has failed to show that his sentence is
inappropriate, we affirm.
Facts and Procedural History [2] One afternoon in March 2014, Burns received a telephone call from
Christopher Arnold. The previous night, Arnold was with Burns at Burns’s
mother’s house and the two had an argument over a girl. Arnold was still angry
and told Burns over the phone that he was coming to Burns’s house to fight.
[3] Arnold arrived at Burns’s house with Devin Toole and Olivia Wenisch. Toole
and Wenisch stood out on the sidewalk while Arnold pounded on the front
door, yelling for Burns to come out and fight. Burns’s mother opened the door
and told Arnold that he needed to leave. Arnold and Toole observed Burns
standing inside the house holding a shotgun, which he had stolen during a
burglary. Burns’s mother shut the door, but Arnold continued to yell and kick
at the door until it broke. Arnold then threw a large trash tote through a
window and into the house. Burns fired the shotgun into the family room floor,
and Arnold, Toole, and Wenisch fled. As they ran, Burns fired two shots at
Toole, hitting him in the right side and arm.
[4] The State charged seventeen-year-old Burns as an adult with class A felony
attempted murder, class B felony burglary, class B felony aggravated battery,
and class C felony criminal recklessness. Burns agreed to plead guilty to the
aggravated battery in exchange for the dismissal of the remaining charges.
Sentencing was left to the trial court’s discretion, but any executed term was
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 2 of 6 capped at fourteen years. The trial court sentenced Burns to twenty years of
incarceration at the Department of Correction, with fourteen years executed
and six years suspended to supervised probation. This appeal ensued.
Discussion and Decision [5] Burns contends that his sentence is inappropriate and seeks resentencing. This
“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.” Ind.
Appellate Rule 7(B). Whether the reviewing court regards a sentence as
inappropriate turns on “a sense of the culpability of the defendant, the severity
of the crime, the damage 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). This
court “must give ‘deference to a trial court’s sentencing decision, both because
Rule 7(B) requires us to give due consideration to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013)
(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). Upon the
review of sentence appropriateness, “appellate courts may consider all aspects
of the penal consequences imposed by the trial judge,” including suspension of
the sentence and probation. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010). The defendant bears the burden of persuading the Court that his sentence
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The
defendant bears the burden of showing both prongs of the inquiry—the nature
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 3 of 6 of the offense and the character of the defendant—favor revision of his
sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.
denied.
[6] Regarding the nature of the offense, Burns argues that the sentence is
inappropriate because he acted to some degree in the defense of himself, his
home, and his mother. In assessing the nature of the offense, this Court
examines the defendant’s actions in comparison to the statutory requirements of
the crime. Id. A person who knowingly or intentionally inflicts injury on a
person that creates a substantial risk of death commits class B felony aggravated
battery. Ind. Code § 35-42-2-1.5. A class B felony is punishable by
imprisonment for a fixed term of between six and twenty years, with the
advisory sentence being ten years. Ind. Code § 35-50-2-5. The advisory sentence
is “the starting point the Legislature has selected as an appropriate sentence for
the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218.
[7] Burns knowingly or intentionally inflicted injury upon Toole when he shot him
twice with a shotgun. While Arnold did instigate the event and provoke Burns,
Burns escalated the violence substantially by bringing out the stolen shotgun.
There is no evidence in the record that Arnold, Toole, or Wenisch were armed.
Further, the trio fled as soon as Burns fired the first shot into the floor, yet
Burns continued to shoot and struck Toole as he ran away. Thus, even
considering that Arnold instigated the event, the nature of the offense supports
a sentence in excess of the advisory.
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 4 of 6 [8] Regarding his character, Burns argues that the sentence is inappropriate because
of his drug dependency. Specifically, he argues that a more appropriate
sentence would have been to place him in the Department of Correction for a
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 07 2015, 9:52 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Derick W. Steele Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffrey Burns, August 7, 2015
Appellant-Defendant, Court of Appeals Case No. 34A02-1501-CR-11 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Judge Appellee-Plaintiff Case No. 34C01-1404-MR-89
Crone, Judge.
Case Summary [1] Jeffrey Burns appeals his twenty-year sentence for class B felony aggravated
battery. The dispositive issue presented for our review is whether the sentence is
inappropriate in light of the nature of the offense and the character of the
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 1 of 6 offender. Finding that Burns has failed to show that his sentence is
inappropriate, we affirm.
Facts and Procedural History [2] One afternoon in March 2014, Burns received a telephone call from
Christopher Arnold. The previous night, Arnold was with Burns at Burns’s
mother’s house and the two had an argument over a girl. Arnold was still angry
and told Burns over the phone that he was coming to Burns’s house to fight.
[3] Arnold arrived at Burns’s house with Devin Toole and Olivia Wenisch. Toole
and Wenisch stood out on the sidewalk while Arnold pounded on the front
door, yelling for Burns to come out and fight. Burns’s mother opened the door
and told Arnold that he needed to leave. Arnold and Toole observed Burns
standing inside the house holding a shotgun, which he had stolen during a
burglary. Burns’s mother shut the door, but Arnold continued to yell and kick
at the door until it broke. Arnold then threw a large trash tote through a
window and into the house. Burns fired the shotgun into the family room floor,
and Arnold, Toole, and Wenisch fled. As they ran, Burns fired two shots at
Toole, hitting him in the right side and arm.
[4] The State charged seventeen-year-old Burns as an adult with class A felony
attempted murder, class B felony burglary, class B felony aggravated battery,
and class C felony criminal recklessness. Burns agreed to plead guilty to the
aggravated battery in exchange for the dismissal of the remaining charges.
Sentencing was left to the trial court’s discretion, but any executed term was
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 2 of 6 capped at fourteen years. The trial court sentenced Burns to twenty years of
incarceration at the Department of Correction, with fourteen years executed
and six years suspended to supervised probation. This appeal ensued.
Discussion and Decision [5] Burns contends that his sentence is inappropriate and seeks resentencing. This
“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.” Ind.
Appellate Rule 7(B). Whether the reviewing court regards a sentence as
inappropriate turns on “a sense of the culpability of the defendant, the severity
of the crime, the damage 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). This
court “must give ‘deference to a trial court’s sentencing decision, both because
Rule 7(B) requires us to give due consideration to that decision and because we
understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013)
(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)). Upon the
review of sentence appropriateness, “appellate courts may consider all aspects
of the penal consequences imposed by the trial judge,” including suspension of
the sentence and probation. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010). The defendant bears the burden of persuading the Court that his sentence
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The
defendant bears the burden of showing both prongs of the inquiry—the nature
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 3 of 6 of the offense and the character of the defendant—favor revision of his
sentence. Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013), trans.
denied.
[6] Regarding the nature of the offense, Burns argues that the sentence is
inappropriate because he acted to some degree in the defense of himself, his
home, and his mother. In assessing the nature of the offense, this Court
examines the defendant’s actions in comparison to the statutory requirements of
the crime. Id. A person who knowingly or intentionally inflicts injury on a
person that creates a substantial risk of death commits class B felony aggravated
battery. Ind. Code § 35-42-2-1.5. A class B felony is punishable by
imprisonment for a fixed term of between six and twenty years, with the
advisory sentence being ten years. Ind. Code § 35-50-2-5. The advisory sentence
is “the starting point the Legislature has selected as an appropriate sentence for
the crime committed.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218.
[7] Burns knowingly or intentionally inflicted injury upon Toole when he shot him
twice with a shotgun. While Arnold did instigate the event and provoke Burns,
Burns escalated the violence substantially by bringing out the stolen shotgun.
There is no evidence in the record that Arnold, Toole, or Wenisch were armed.
Further, the trio fled as soon as Burns fired the first shot into the floor, yet
Burns continued to shoot and struck Toole as he ran away. Thus, even
considering that Arnold instigated the event, the nature of the offense supports
a sentence in excess of the advisory.
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 4 of 6 [8] Regarding his character, Burns argues that the sentence is inappropriate because
of his drug dependency. Specifically, he argues that a more appropriate
sentence would have been to place him in the Department of Correction for a
period of ten years, with ten years on supervised probation because this would
better provide him with resources to conquer his substance abuse and mental
health issues. We first observe that our inquiry is whether the sentence imposed
is inappropriate, “not whether another sentence is more appropriate.” King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Thus, Burns’s argument for an
alternative sentence is not within the scope of appellate review.
[9] We further observe that while a person’s drug dependency may be considered in
determining the appropriateness of his sentence, one’s criminal history may also
be considered in assessing a defendant’s character. Rutherford v. State, 866
N.E.2d 867, 874 (Ind. Ct. App. 2007). It is proper to consider one’s criminal
history “as a poor reflection on the defendant’s character because it may reveal
that he or she has not been deterred even after having been subjected to the
police authority of the State.” Id.
[10] Burns’s criminal history began as a juvenile when he committed battery at six
years old. Since then, Burns has had sixteen known contacts with the juvenile
justice system, including an adjudication for battery. His extensive contacts
with the juvenile justice system have failed to rehabilitate him. Burns also has a
prior adult conviction for class D felony auto theft and had been released on
probation from that conviction for just two months before he committed the
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 5 of 6 aggravated battery in this case. His guilty plea resulted in his second adult
felony conviction in less than a year.
[11] Burns’s criminal history shows his disregard for the criminal justice system and
the authority of the court. There were multiple attempts through several
programs to rehabilitate and treat Burns’s mental and emotional problems,
none of which were ever completed. After he was convicted of auto theft, he
was ordered to complete the court’s drug and alcohol abuse program, but he
was arrested on the charges in this case before he could begin the program. We
agree with the State’s classification of Burns’s character as that of a career
criminal. As such, a sentence in excess of the advisory is warranted. Thus,
Burns has failed to show that both the nature of the offense and his character
render his twenty-year sentence inappropriate.
[12] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015 Page 6 of 6