Julian Byrd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 21, 2018
• Docket: 71A04-1709-CR-2209
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 21 2018, 6:25 am Pursuant to Ind. Appellate Rule 65(D), 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 Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Julian Byrd, May 21, 2018 Appellant-Defendant, Court of Appeals Case No. 71A04-1709-CR-2209 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1704-F1-5

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018 Page 1 of 4 Case Summary [1] Following a jury trial, Julian Byrd was convicted of Level 3 felony armed

robbery and Level 5 felony battery with a deadly weapon. The trial court

sentence Byrd to concurrent sentences of sixteen years for armed robbery and

six years for battery. On appeal, Byrd argues that the trial court abused its

discretion in lending considerable weight to his prior criminal history, which

included more than twenty misdemeanors and five juvenile adjudications.

Because the trial court did not abuse its discretion when it considered Byrd’s

criminal history during sentencing, we affirm.

Facts and Procedural History [2] On April 15, 2017, Byrd arrived at the home of Daniyell Franklin in South

Bend armed with a gun. Byrd was looking for Darcy Neilly. After knocking,

someone cracked the door to see who was there. Byrd pushed the door open

and entered the home. Byrd went to the bedroom where Franklin and Neilly

were sleeping and fired his gun into the air. Byrd pointed his gun at Neilly and

fired it, hitting him in the upper-left side of his chest. After shooting Neilly,

Byrd took $30 from Neilly’s pocket and fled the scene.

[3] On April 18, 2017, Byrd was charged with Level 1 felony burglary, Level 3

felony armed robbery, and Level 5 felony battery with a deadly weapon. A jury

trial was held on August 1 and 2, 2017. On August 2, 2017, the jury found

Byrd guilty of armed robbery and battery and acquitted him of the burglary

Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018 Page 2 of 4 charge. A sentencing hearing was held on August 30, 2017. During the

hearing, the trial court was presented with evidence of Byrd’s extensive criminal

history. In total, Byrd had been convicted of twenty-five misdemeanors and

had received five juvenile adjudications. The trial court sentenced Byrd to

sixteen years for Count II with a concurrent six-year sentence for Count III.

Discussion and Decision [4] We begin by noting that sentencing decisions rest within the sound discretion of

the trial court and are reviewed on appeal only for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds 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 to be drawn

therefrom.” 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 trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.

Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018 Page 3 of 4 Id. at 490–91. In claiming that the trial court abused its discretion in sentencing

him, Byrd argues that the trial court improperly balanced the aggravating and

mitigating circumstances. However, “[a] trial court cannot […] be said to have

abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, at

491. This is a request for us to reweigh the aggravators and mitigators which

we will not do. See id. Based upon a review of the record, there was ample

evidence to support Byrd’s sentence.

[5] The trial court found that Byrd’s extensive criminal history was an aggravating

circumstance, which justified giving him the maximum possible sentences for

armed robbery and battery. Specifically, the trial court said that Byrd’s “25

adult criminal convictions and 5 juvenile adjudications … say it all.” Tr. Vol.

IV, p. 4. The trial court also characterized his most recent offense as “by far the

most serious [thing] that you’ve been involved with.” Tr. Vol. IV, p. 4.

[6] Byrd’s only argument is that the trial court gave too much weight to his

criminal history during sentencing. He does not claim that his sentence is

inappropriate in light of the nature of his offense or character. Because the trial

court did not abuse its discretion considering Byrd’s criminal history during

sentencing and Byrd has failed to raise a cognizable claim for relief, we affirm

the trial court’s sentence.

[7] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A04-1709-CR-2209| May 21, 2018 Page 4 of 4