Julius Q. Armstead v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 21, 2015
• Docket: 79A02-1403-CR-137
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 21 2015, 6:31 am

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:

DAVID T.A. MATTINGLY GREGORY F. ZOELLER Lafayette, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JULIUS Q. ARMSTEAD, ) ) Appellant-Defendant, ) ) vs. ) No. 79A02-1403-CR-137 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Randy J. Williams, Judge Cause No. 79D01-1211-FB-21

January 21, 2015

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge STATEMENT OF THE CASE

Julius Armstead (“Armstead”) appeals his sentence for Class B felony robbery.1 On

appeal, Armstead claims that the trial court abused its discretion by not considering his

young age and the undue hardship his incarceration would cause his daughter as mitigating

circumstances. In addition, he argues that his sentence is inappropriate in light of the nature

of the offense and his character. Concluding that Armstead’s proposed mitigating

circumstances are neither significant nor clearly supported by the record, and that his

sentence is appropriate in light of the nature of the offense and his character, we affirm

Armstead’s sentence.

We affirm.

ISSUES

1. Whether the trial court abused its discretion in sentencing Armstead.

2. Whether Armstead’s sentence is inappropriate under Indiana Appellate Rule 7(B).

FACTS

In October of 2012, Armstead and three other men agreed to rob students at Purdue

University. On October 26, 2012, Armstead and the other men went to campus and

approached Yi Wang (“Wang”) while he was texting and walking on a sidewalk. They

shoved Wang to the sidewalk, and he dropped his cell phone. One of the men took the

1 IND. CODE § 35-42-5-1. We note that, effective July 1, 2014, a new version of this robbery statute was enacted and that Class B felony robbery is now a Level 3 felony. Because Armstead committed his crimes in 2012, we will apply the statute in effect at that time. 2 phone, and then all of them ran away. As a result of the robbery, Wang sustained a cut to

his chin and scrapes and lacerations to his hands.

Two days later, Armstead and the other men returned to campus and robbed Kyung

Pae (“Pae”) by pushing him down and striking him on the head, eye, and mouth. The men

then stole Pae’s cell phone. As a result of the robbery, Pae suffered a swollen left eye, a

chipped tooth, a bloodied head, and scratches to his hands.

On October 29, 2012, Armstead and the other men returned to the Purdue campus,

where they robbed two students, Jiaqi Hao (“Hao”) and Yanze Li (“Li”). They pushed

them down, kicked the students in their heads, and stole their backpacks and laptop

computers. Both Hao and Li suffered abrasions to their hands resulting from the robbery,

and Hao suffered a cut under his eye from being kicked in the face.

Police began to investigate Armstead’s involvement after a manager of a local pawn

shop identified Armstead’s cousin as the seller of some of the stolen items. The police

eventually interviewed the other men, all of whom confessed to their involvement and

implicated Armstead in the robberies.

On November 16, 2012, the State charged Armstead and each of the three other men

with one count of Class B felony conspiracy to commit robbery, four counts of Class B

felony robbery resulting in bodily injury, and four counts of Class D felony theft. Armstead

entered an open plea of guilty to all nine counts, giving the trial court complete discretion

at sentencing.2

2 Armstead’s codefendants pled guilty and, as part of their plea agreements, agreed to testify against Armstead at trial. 3 At the sentencing hearing, the trial court found the following aggravating factors:

(1) Armstead’s criminal history; (2) the fact that he was on bond for a charge of theft at the

time he committed the robberies and violated the conditions of bond by consuming alcohol

and drugs; (3) his history of substance abuse; (4) his past failed attempts at rehabilitation;

and (5) that there were multiple robbery victims and the repetitive nature of the crime. The

trial court found Armstead’s guilty plea, troubled childhood, family support, and the fact

that he had been a high school athlete who had finished high school as mitigating

circumstances. The trial court sentenced Armstead to (18) years on each robbery count

with sixteen (16) years executed. The trial court ordered fourteen (14) years to be served

in the Department of Correction and two (2) years to be served on Community Corrections.

The trial court further suspended two (2) years to probation, and ordered the robbery counts

to be served concurrently. The remaining counts were merged. Armstead now appeals.

We will provide additional facts as necessary.

DECISION

Armstead argues that the trial court abused its discretion in sentencing him.

Specifically, he claims that the trial court did not consider his young age and the undue

hardship his incarceration would cause his daughter as mitigating circumstances. In

addition, he claims that his sentence is inappropriate under Ind. Appellate Rule 7(B). We

address each argument in turn.

1. Abuse of Discretion

Notwithstanding the authority afforded to appellate courts by Indiana Appellate

Rule 7(B), “sentencing decisions rest within the sound discretion of the trial court and are

4 reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified 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.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,

473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in

sentencing a defendant by: (1) failing to enter a sentencing statement; (2) entering a

sentencing statement that explains reasons for imposing the sentence but the record does

not support the reasons; (3) omitting reasons that are clearly supported by the record and

advanced for consideration; or (4) imposing a sentence for reasons that are improper as a

matter of law. Anglemyer, 868 N.E.2d at 490. An allegation that the trial court failed to

identify or find a mitigating factor requires the defendant to establish that the mitigating

evidence is both significant and clearly supported by the record. Carter v. State, 711

N.E.2d 835, 838 (Ind. 1999).

Regarding age as a mitigating factor, our Indiana Supreme Court has stated that,

“[a]ge is neither a statutory nor a per se mitigating factor. There are cunning children and

there are naïve adults.” Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001) (quoting

Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999)). A sentencing inquiry for people in

their teens and early twenties does not always begin and end with chronological age.

Monegan, 756 N.E.2d at 504.

We first note that Armstead was eighteen when he committed this offense and

nineteen at the time of sentencing, which is beyond the age at which the law commands

5 special treatment. Id. Nevertheless, Armstead, relying on the answers he gave in his

presentence investigation, claims that his “youth and immaturity is self-evident in the

record.” (Armstead’s Br. 8).3 Absent, however, from his argument is how his youth and

immaturity contributed to the commission of his offenses. Our review of the record shows

no significant evidence clearly supported by the record in this regard. Accordingly, the

trial court did not abuse its discretion in not considering Armstead’s age as a mitigating

circumstance.

Turning to Armstead’s second claim of error, INDIANA CODE § 35-38-1-7.1(b)(10)

allows a trial court to consider whether incarceration “will result in an undue hardship to

the person or the dependents of the person.” (emphasis added). Our supreme court has

stated that, “[m]any persons convicted of serious crimes have one or more children and,

absent special circumstances, trial courts are not required to find that imprisonment will

result in undue hardship.” Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). At

sentencing, Armstead testified that he has a daughter that is depending on him, and that he

does not want to abandon her like his father abandoned him. Well-intentioned as

Armstead’s sentiments may be, they simply do not amount to special circumstances that

would have mandated the trial court’s consideration. Id. Accordingly, no abuse of

discretion took place regarding Armstead’s sentence.

2. Inappropriate Sentence

3 We note that Armstead included his PSI in the Appellate Appendix and did not print it on green paper per Indiana Administrative Rule 9(G)(5)(b). Contemporaneously with the issuing of this opinion, we order Armstead’s appellate counsel to file an amended appendix wherein the PSI is printed on green paper. 6 Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the power

to revise an inappropriate sentence in light of the nature of the offense and character of the

offender, giving due consideration to the trial court’s decision. The defendant must

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Under Rule 7(B), we seek “to attempt to leaven the outliers, and identify some

guiding principles for trial courts and those charged with improvement of the sentencing

statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State,

895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate ultimately

depends upon “the culpability of the defendant, the severity of the crime, the damage done

to others, and a myriad of other factors that come to light in a given case.” Id. at 1224.

In determining whether a sentence is inappropriate, we first look to the advisory

sentence provided by statute. Childress, 848 N.E.2d at 1081. Class B felony robbery has

a sentencing range between six (6) and twenty (20) years, with an advisory sentence of ten

(10) years. I.C. § 35-50-2-5(a).

As to the nature of the offense and his character, Armstead claims that, “[i]n short,

these crimes were more akin to a display of young people acting as hooligans, despite

meeting the statutory definition of robbery causing bodily injury.” (Armstead Br. 12). We

fail to see how acting as a hooligan bodes well for his hopes that we revise his sentence.4

Armstead and his codefendants went to Purdue on three separate occasions, threatened,

battered, and injured four students, and then took their property. Furthermore, the evidence

4 Merriam-Webster’s Online Dictionary defines hooligan as a “young man who does noisy and violent things as part of a group or gang.” MERRIAM-WEBSTER ONLINE DICTIONARY, available at http://www.merriam-webster.com/dictionary/hooligan (last visited January 7, 2014). 7 strongly suggests that on each occasion, the men specifically targeted students of Asian

descent.

In addition, Armstead’s criminal history is troubling. He has adjudications for the

following juvenile offenses: Class D felony resisting law enforcement; Class D felony

theft; and criminal trespass as a Class A misdemeanor. Less than two weeks after being

released from probation in juvenile court, Armstead committed an act of theft for which he

was later charged and convicted of as a Class D felony. Armstead committed the robberies

at Purdue while he was on bond for that theft charge. Finally, when officers tried to serve

the arrest warrant for his bond violation, he resisted and battered two officers, resulting in

more charges and a subsequent conviction.

Given the above-mentioned facts, Armstead has failed to persuade us that his

sentence is inappropriate in light of the nature of these offenses or his character.

Affirmed.

NAJAM, J., and BAILEY, J., concur.