Jermiane A. Broussard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 10, 2017
• Docket: 79A04-1611-CR-2636
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 10 2017, 10:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jermaine A. Broussard, May 10, 2017 Appellant-Defendant, Court of Appeals Case No. 79A04-1611-CR-2636 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause No. 79D02-1510-F4-12

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Defendant, Jermaine A. Broussard (Broussard), appeals his sentence

following an open guilty plea to unlawful possession of a firearm by a serious

violent felon, a Level 4 felony, Ind. Code § 35-47-4-5(c); operating while

intoxicated with a prior conviction, a Level 6 felony, I.C. § 9-30-5-2(a); and

being a habitual offender, I.C. § 35-50-2-8(a).

[2] We affirm.

ISSUES [3] Broussard presents us with two issues on appeal, which we restate as:

(1) Whether the trial court abused its sentencing discretion by imposing

consecutive sentences; and

(2) Whether Broussard’s sentence is inappropriate in light of the nature of

the offense and his character.

FACTS AND PROCEDURAL HISTORY [4] In the early morning hours of October 11, 2015, thirty-seven-year-old

Broussard, who had been drinking alcoholic beverages, lost control of his

vehicle and ran off the road in Tippecanoe County, Indiana. After concerned

citizens notified the police, police officers found Broussard unresponsive behind

the wheel of his vehicle, with a loaded .38 caliber revolver tucked in the

waistband of his pants. After medics awakened Broussard, he admitted that the

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 2 of 11 possession of the handgun was unlawful due to a prior felony conviction. Later

testing verified that Broussard’s blood alcohol level was .194.

[5] On October 15, 2015, the State filed an Information, charging Broussard with

Count I, unlawful possession of a firearm by a serious violent felon, a Level 4

felony; Count II, carrying a handgun without a license, a Class A

misdemeanor; Count III, carrying a handgun by a convicted felon, a Level 5

felony; Count IV, operating a vehicle while intoxicated, a Class C

misdemeanor; Count V, operating a vehicle with at least 0.15 gram of alcohol, a

Class A misdemeanor; Count VI, operating a vehicle while intoxicated with a

prior conviction, a Level 6 felony; Count VII, operating a vehicle with at least

0.15 gram of alcohol with a prior conviction, a Level 6 felony. On January 8,

2016, the State amended the Information to include Count VIII, which alleged

Broussard to be a habitual offender.

[6] On September 16, 2016, Broussard entered an open guilty plea to Counts I and

VI, and admitted to being a habitual offender, with all other Counts being

dismissed. On October 20, 2016, the trial court conducted a sentencing

hearing. During the hearing, the trial court took note of Broussard’s criminal

history, which began in 1995 when he was convicted of two felonies in Illinois,

i.e., aggravated vehicle hijacking/dangerous weapon and aggravated

battery/public place. He received seven years of incarceration. Charges of

disorderly conduct and burglary were later filed in Cook County, Illinois, but

were dismissed. Broussard admitted that during this time he was a member of

the Gangster Disciples, which he claimed was disbanded in 1997. In 2001 and

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 3 of 11 2005 respectively, he was sentenced for two instances of felony aggravated

unlawful use of a weapon with a previous conviction in Cook County. In 2006,

Broussard moved to Tippecanoe County, Indiana, where he was convicted of

resisting law enforcement as a Class A misdemeanor and for which he received

probation. In 2009, he was arrested for public intoxication as a Class B

misdemeanor, but the case was later dismissed. Also in 2009, he was arrested

for domestic battery, which was dismissed as part of a plea agreement in

another cause where he was convicted of dealing cocaine. Pursuant to this plea

agreement, Broussard received twelve years’ imprisonment, with two years to

be served through community corrections. Within a year of this sentence, the

trial court granted Broussard’s request for a modification and commuted one

year to placement at Home for Hope. Upon his release from incarceration,

Broussard committed operating with a blood alcohol content of .08% or more.

In April 2014, Broussard’s two-year placement for the dealing cocaine charge

was revoked and the court imposed sixty days executed to be served

consecutively to the operating charge. Eighteen months after his release,

Broussard committed the present offenses.

[7] During the hearing, Broussard offered his version of the offense and claimed

that he had been at a party that evening where a shooting had taken place. An

unidentified man carrying a handgun approached Broussard and requested a

ride to the hospital because he had been shot. Broussard claimed to have taken

the man for medical help since his designated driver—who had driven

Broussard’s car to the party because Broussard was already intoxicated—could

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 4 of 11 not be found. Prior to seeking medical attention, Broussard insisted that the

man handed him his handgun. After dropping off the injured man at the

hospital, he took some other guests from the party home. While returning to

his residence, Broussard admittedly passed out behind the wheel and drove off

the road. He claimed to be “shocked” to find the handgun in his waistband

when the police woke him up in his car. (Tr. p. 39).

[8] At the close of the evidence, the trial court found as aggravating factors: the

nature and seriousness of the offense; Broussard’s high level of intoxication

while possessing a loaded gun during the commission of the offense;

Broussard’s criminal history; his failed prior attempts at rehabilitation and

community corrections; and the repetitive nature of the crime. As a mitigating

circumstance, the trial court noted Broussard’s guilty plea, he took

responsibility for his actions, and Broussard’s “alcohol and drug problems

however diminished by failed attempts at rehabilitation.” (Appellant’s App.

Vol. II, p. 11). The trial court imposed a sentence of eleven years for the serious

violent felon charge, enhanced by seven years for his habitual offender

adjudication, and two years for his repeat operating while intoxicated offense.

The trial court ordered the sentences to run consecutively

[b]ased on the nature of the [operating while intoxicated charge] and the fact that he ran off the road while intoxicated with a loaded gun, causing, creating a very serious situation that could have caused injury to others. I know that the element of the [operating while intoxicated charge] is endangerment. However, in this particular case, he ran off the road while in possession of a

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 5 of 11 loaded gun, and I think that, that’s enough of an aggravator to cause those two to run consecutive.

(Tr. pp. 64-65). Broussard’s aggregate sentence was twenty years, of which the

trial court ordered eighteen years executed with two years suspended to

supervised probation.

[9] Broussard now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Consecutive Sentences

[10] Broussard contends that the trial court abused its discretion by ordering his

sentences to run consecutively as “it essentially does nothing more than cite the

statutory elements of the offenses to which Broussard pled guilty.” (Appellant’s

Br. p. 7).

[11] Sentencing decisions rest within the sound decision of the trial court and we

review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of

discretion occurs if the decision is clearly against the logic and effect of the facts

and circumstances before the court or the reasonable, probable, and actual

deductions drawn therefrom. Id. We review for an abuse of discretion the

court’s finding of aggravators and mitigators to justify a sentence, but we

cannot review the relative weight assigned to those factors. Id. at 490-91.

When reviewing the aggravating and mitigating circumstances identified by the

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 6 of 11 trial court in its sentencing statement, we will remand only if “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.” Id.

[12] In order to impose consecutive sentences, a trial court must find at least one

aggravating circumstance. Sanquenetti v. State, 727 N.E.2d 437, 442 (Ind. 2000).

Aggravating circumstances may include, but are not limited to, any of several

statutorily enumerated factors. I.C. § 35-38-1-7.1. A single aggravating

circumstance may support the imposition of consecutive sentences. Lavoie v.

State, 903 N.E.2d 135, 140 (Ind. Ct. App. 2009). Although a trial court is

required to state its reasons for imposing consecutive sentences, it may rely on

the same reasons to impose a maximum sentence and also impose consecutive

sentences. Id.

[13] Here, in explaining its reasons for imposing consecutive sentences, the trial

court referred to the extenuating circumstance of Broussard’s possession of a

loaded gun while inebriated to the point of passing out. Although the trial

court acknowledged that the charge of operating a vehicle while intoxicated

included an element of endangerment, here, the surrounding circumstances of

the charge alluded to more than merely an element of the offense. To be

convicted of a serious violent felon, Broussard was only required to possess a

firearm. I.C. § 35-47-4-5(c). To be convicted of an operating while intoxicated

charge, Broussard was required to operate a motor vehicle while intoxicated in

a manner that endangered a person. I.C. § 9-30-5-2(b). In fashioning its

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 7 of 11 consecutive sentence, the trial court was clearly referencing the danger

component surrounding the nature of the charge, i.e., the carrying of a loaded

handgun while driving a car and passing out from an overindulgence in alcohol

with a blood alcohol content well over twice the allowable limit. His conduct

clearly exceeded the elements of the offense and posed a significant danger to

the general public. “Generally, the nature and circumstances of a crime is a

proper aggravating circumstance.” Gomillia v. State, 13 N.E.3d 846, 853 (Ind.

2014). Accordingly, we find that the trial court properly explained and

supported the imposition of consecutive sentences.

II. Appropriate Sentence

[14] Pursuant to Indiana Appellate Rule 7(B), we 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.” Under this rule, the question is not whether another

sentence is more appropriate, but whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The

principal role of appellate review is to “leaven the outliers;” it is “not to achieve

a perceived correct result in each case.” Cardwell v. State, 895 N.E.2d 1219,

1225 (Ind. 2008). The appropriateness of the sentence turns on this court’s

“sense of the culpability of the defendant, the severity of the crime, the damage

done to others, and a myriad other factors that come to light in a given case.”

Id. at 1224. The defendant carries the burden of persuading this court that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 8 of 11 The defendant must show that his sentence is inappropriate in light of both his

character and the nature of the offense. Williams v. State, 891 N.E.2d 621, 633

(Ind. 2006).

[15] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

494. The sentencing range for a Level 4 felony is between two and twelve

years, with the advisory sentence being six years; while the sentencing range for

a level 6 felony is between six months and two and one half years, with the

advisory sentence being one year. See I.C. §§ 35-50-2-5.5; -7. The sentence for

an habitual offender charge for a person convicted of a Level 1 through Level 4

felony is an additional fixed term of between six and twenty years. See I.C. §

35-50-2-8(i). Here, the trial court sentenced Broussard to a sentence of eleven

years for the serious violent felon charge, enhanced by seven years for his

habitual offender adjudication, and two years for his operating while

intoxicated offense. With respect to the nature of these offenses, we reiterate

that Broussard carried a loaded handgun while heavily intoxicated and barely

able to drive a vehicle.

[16] Turning to Broussard’s character, we echo the trial court’s disbelief in

Broussard’s explanation of the circumstances put forward during the sentencing

hearing.

Your attorney indicated that the nature of this offense was not that bad if you consider the fact that you were trying to assist and take someone to the hospital and that this guy just handed the

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 9 of 11 gun to you. This is the first time that I’ve heard that story. You didn’t offer up that story at the time of your arrest. You didn’t offer up that story to the probation, when you were given an opportunity to give a statement to the [c]ourt and this is the first time it’s been offered. There’s been no collaborating evidence presented to support that. What I do see here, by your own admission, is someone who [is] extremely intoxicated, who has prior related offenses of [] unlawfully carrying a gun. You’re driving the streets of this community extremely intoxicated and you’re caught with a loaded gun in your possession after you drove the car off the road.

(Tr. p. 61).

[17] Broussard’s criminal history is lengthy. The instant offense is “the third time”

in the last twelve years that Broussard has been caught unlawfully carrying a

gun. (Tr. p. 50). He continued committing crimes despite repeated displays of

lenient sentencing and correctional alternatives by Indiana courts. Although he

has amassed numerous convictions, Broussard habitually minimizes his own

culpability. He blamed his Illinois weapons convictions in 1994, 2000, and

2004 on his gang membership. Broussard elaborated that his dealing cocaine

conviction resulted from an attempt “to protect” his spouse. (Tr. p. 36). Even

before the trial court pronounced sentence, he was placing blame on everyone

except on himself. He blamed heavy drinking and “some bad decisions” he had

made in “hanging around with the wrong people.” (Tr. p. 51). The trial court

found that Broussard had failed alternative sentencing in the past: he had been

involved in community corrections on “four different occasions” and was now

back again before the court. (Tr. p. 64). As such, the trial court was “not that

Court of Appeals of Indiana | Memorandum Decision 79A04-1611-CR-2636 | May 10, 2017 Page 10 of 11 convinced that community corrections would be helpful or successful[.]” (Tr.

p. 64). In light of the evidence before us, we conclude that Broussard failed to

persuade us that the nature of the crime and his character provide a reason to

revise his sentence.

CONCLUSION [18] Based on the foregoing, we conclude that the trial court properly sentenced

Broussard.

[19] Affirmed.

[20] Najam, J. and Bradford, J. concur

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