MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 09 2017, 9:10 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Juma Haywood, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1701-CR-165 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1610-F6-1147
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 1 of 6 Case Summary
[1] Juma Haywood pled guilty to four counts of Level 6 felony invasion of privacy
and was sentenced to two years imprisonment on each count, to be served
concurrently. Haywood now appeals his sentence. We affirm.
Issues
[2] Haywood raises one issue on appeal, which we restate as whether the trial court
imposed an inappropriate sentence in light of the nature of the offense and
Haywood’s character.
Facts
[3] On October 14, 2016, Haywood was charged with four counts of Level 6 felony
invasion of privacy. On October 18, 2016, a no contact order was issued,
barring Haywood from contacting the victim, H. H. On October 24, 2016,
H.H. wrote a letter to the court expressing her intentions to continue a
relationship between herself and Haywood, further stating that Haywood was
no longer a threat to her or her children. H.H. also requested that the no
contact order be terminated. On December 14, 2016, without the benefit of a
plea agreement, Haywood pled guilty to all four counts. During the sentencing
hearing, on January 12, 2017, H.H. stated that she “made it possible for Mr.
Haywood to call [her] and that, when all this is said and done, that [she] still
[planned] on pursuing a relationship.” Tr. p. 5. Also during the hearing,
Haywood apologized to the court for violating the no contact order and stated
that “it’s kind of hard to not contact the person when you’re in love with the
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 2 of 6 person.” Id. at 6. Haywood also stated that “she [H.H.] helps me get myself
together since my mother died and everything.” Id. After evidence and
arguments were presented, the trial court concluded that Haywood’s criminal
history, consisting of four juvenile adjudications, thirteen misdemeanors, and
eight prior felony convictions, along with the fact that he was on probation
when the current offenses were committed, were all aggravating circumstances.
The court also stated that it found Haywood’s guilty plea, expression of
remorse, and the victim’s statements to be mitigating circumstances. Given the
aggravating circumstances, the trial court sentenced Haywood to two years
imprisonment on each count, to be served concurrently. The trial court also
ordered that the no contact order be terminated.
Analysis
[4] Haywood contends that the trial court erred when it “handed down an
aggravated sentence where the entirety of the [offensive] conduct was
consensual telephone conversations.” Appellant’s Br. p. 5. We will assess
whether Haywood’s sentence is inappropriate under Indiana Appellate Rule
7(B) in light of his character and the nature of the offense. See Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require us
to be “extremely” deferential to a trial court’s sentencing decision, we still must
give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 3 of 6 bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[5] The principal role of Rule 7(B) review “should be 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). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[6] Haywood argues that “the nature and circumstances surrounding the offense in
this case shows that an enhanced and executed sentence of four years is
inappropriate.” Appellant’s Br. p. 9. When considering the nature of the
offense, the advisory sentence is the starting point to determine the
appropriateness of a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.
App. 2013). Haywood pled guilty to four counts of Level 6 felony invasion of
privacy. The sentencing range for a Level 6 felony is between six months and
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 4 of 6 two-and-a-half years’ imprisonment, with one year being the advisory sentence.
Indiana Code Section 35-50-2-7(b). The trial court sentenced Haywood to two
years imprisonment for each count to be served concurrently, rather than
consecutively. The trial court’s sentence was entirely within the range allowed
by the statute.
[7] Regarding the nature of Haywood’s offense, although contact with the victim
may have been consensual, his arguments disregard the fact that he expressly
violated a court order on multiple occasions. To the extent Haywood argues
that H.H.’s actions invited his violation of the protective order, this court has
held that an invitation by the victim does not waive or nullify an order for
protection. Smith v. State, 999 N.E.2d 914, 918 (Ind. Ct. App. 2013) trans.
denied.
[8] When considering Haywood’s character, we cannot say that the sentence
imposed by the trial court was inappropriate. Haywood has four adjudications
as a juvenile, thirteen misdemeanor convictions, and eight prior felony
convictions.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jun 09 2017, 9:10 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Juma Haywood, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1701-CR-165 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1610-F6-1147
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 1 of 6 Case Summary
[1] Juma Haywood pled guilty to four counts of Level 6 felony invasion of privacy
and was sentenced to two years imprisonment on each count, to be served
concurrently. Haywood now appeals his sentence. We affirm.
Issues
[2] Haywood raises one issue on appeal, which we restate as whether the trial court
imposed an inappropriate sentence in light of the nature of the offense and
Haywood’s character.
Facts
[3] On October 14, 2016, Haywood was charged with four counts of Level 6 felony
invasion of privacy. On October 18, 2016, a no contact order was issued,
barring Haywood from contacting the victim, H. H. On October 24, 2016,
H.H. wrote a letter to the court expressing her intentions to continue a
relationship between herself and Haywood, further stating that Haywood was
no longer a threat to her or her children. H.H. also requested that the no
contact order be terminated. On December 14, 2016, without the benefit of a
plea agreement, Haywood pled guilty to all four counts. During the sentencing
hearing, on January 12, 2017, H.H. stated that she “made it possible for Mr.
Haywood to call [her] and that, when all this is said and done, that [she] still
[planned] on pursuing a relationship.” Tr. p. 5. Also during the hearing,
Haywood apologized to the court for violating the no contact order and stated
that “it’s kind of hard to not contact the person when you’re in love with the
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 2 of 6 person.” Id. at 6. Haywood also stated that “she [H.H.] helps me get myself
together since my mother died and everything.” Id. After evidence and
arguments were presented, the trial court concluded that Haywood’s criminal
history, consisting of four juvenile adjudications, thirteen misdemeanors, and
eight prior felony convictions, along with the fact that he was on probation
when the current offenses were committed, were all aggravating circumstances.
The court also stated that it found Haywood’s guilty plea, expression of
remorse, and the victim’s statements to be mitigating circumstances. Given the
aggravating circumstances, the trial court sentenced Haywood to two years
imprisonment on each count, to be served concurrently. The trial court also
ordered that the no contact order be terminated.
Analysis
[4] Haywood contends that the trial court erred when it “handed down an
aggravated sentence where the entirety of the [offensive] conduct was
consensual telephone conversations.” Appellant’s Br. p. 5. We will assess
whether Haywood’s sentence is inappropriate under Indiana Appellate Rule
7(B) in light of his character and the nature of the offense. See Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007). Although Rule 7(B) does not require us
to be “extremely” deferential to a trial court’s sentencing decision, we still must
give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective
a trial court brings to its sentencing decisions. Id. “Additionally, a defendant
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 3 of 6 bears the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[5] The principal role of Rule 7(B) review “should be 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). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010).
[6] Haywood argues that “the nature and circumstances surrounding the offense in
this case shows that an enhanced and executed sentence of four years is
inappropriate.” Appellant’s Br. p. 9. When considering the nature of the
offense, the advisory sentence is the starting point to determine the
appropriateness of a sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct.
App. 2013). Haywood pled guilty to four counts of Level 6 felony invasion of
privacy. The sentencing range for a Level 6 felony is between six months and
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 4 of 6 two-and-a-half years’ imprisonment, with one year being the advisory sentence.
Indiana Code Section 35-50-2-7(b). The trial court sentenced Haywood to two
years imprisonment for each count to be served concurrently, rather than
consecutively. The trial court’s sentence was entirely within the range allowed
by the statute.
[7] Regarding the nature of Haywood’s offense, although contact with the victim
may have been consensual, his arguments disregard the fact that he expressly
violated a court order on multiple occasions. To the extent Haywood argues
that H.H.’s actions invited his violation of the protective order, this court has
held that an invitation by the victim does not waive or nullify an order for
protection. Smith v. State, 999 N.E.2d 914, 918 (Ind. Ct. App. 2013) trans.
denied.
[8] When considering Haywood’s character, we cannot say that the sentence
imposed by the trial court was inappropriate. Haywood has four adjudications
as a juvenile, thirteen misdemeanor convictions, and eight prior felony
convictions. He was also on probation at the time of these offenses. The
significance of a criminal history in assessing a defendant’s character and an
appropriate sentence varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Rutherford, 866 N.E.2d at 874.
Haywood contends that “the more recent convictions are far less severe than his
early-life conduct; [and that] from 2007 on, Haywood has no conviction or
charge above a Level 6 felony. Of those, all but two are either driving offenses
or drug charges, which bear no similarity to the current conviction.”
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 5 of 6 Appellant’s Br. p. 11. Although it is true that Haywood has not received a
conviction above a Level 6 felony since 2007, and that his recent offenses have
been “less severe,” Haywood’s frequent contacts with the criminal justice
system show that he has not been deterred or rehabilitated from breaking the
law. See Garcia v. State, 47 N.E.3d 1249, 1251-1252 (Ind. Ct. App. 2015)
(defendant’s sixty-six month sentence was not inappropriate in light of his
character and his failure to reform himself). Haywood has not met his burden
of persuading us that his sentence is inappropriate in light of the nature of the
offenses and his character.
Conclusion
[9] The sentence imposed by the trial court was not inappropriate in light of the
nature of the offense and Haywood’s character. We affirm the decision of the
trial court.
[10] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-CR-165 | June 9, 2017 Page 6 of 6