Justin Bowling v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 7, 2018
• Docket: 15A05-1710-CR-2271
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 07 2018, 9:38 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Bowling, May 7, 2018 Appellant-Defendant, Court of Appeals Case No. 15A05-1710-CR-2271 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff. McLaughlin, Judge Trial Court Cause No. 15D02-1703-F6-81

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 1 of 6 Case Summary and Issue [1] Following a guilty plea, Justin Bowling was convicted of domestic battery and

intimidation, both Level 6 felonies. The trial court sentenced Bowling to an

aggregate term of four years in the Indiana Department of Correction. He now

appeals, raising for our review the sole issue of whether his sentence is

inappropriate in light of his character and the nature of his offense. Concluding

his sentence is not inappropriate, we affirm.

Facts and Procedural History [2] On March 18, 2017, an intoxicated Bowling returned home and began arguing

with his girlfriend, Rhonda Hoffman. The argument soon turned physical

when Bowling grabbed Hoffman by the throat and threw her to the ground.

While on the ground, Bowling used his elbow to strike Hoffman in her face and

body. Bowling then stood up and kicked Hoffman in her stomach. Hoffman’s

six-year-old son watched as Bowling kicked Hoffman. Hoffman was then able

to stand up and run to a neighbor’s house for help, but her neighbors did not

answer their door. As she tried to call 911, Bowling grabbed her cell phone and

stated, “I’ll f****** kill you!” Appellant’s Appendix, Volume 2 at 16.

Eventually, Hoffman was able to reach law enforcement. Hoffman suffered

multiple nasal bone fractures, an abdominal muscle strain, and contusions and

abrasions on her head and face.

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 2 of 6 [3] The State charged Bowling with battery resulting in moderate bodily injury, a

Level 6 felony; domestic battery committed in the presence of a child less than

sixteen years of age, a Level 6 felony; domestic battery, a Level 6 felony;

intimidation, a Level 6 felony; interference with the reporting of a crime, a

Class A misdemeanor; and domestic battery, a Class A misdemeanor. On

August 16, 2017, Bowling pleaded guilty to domestic battery and intimidation,

both Level 6 felonies. The trial court sentenced Bowling to two years in the

Department of Correction on each conviction with the sentences to be served

consecutively. Bowling now appeals his sentence.

Discussion and Decision I. Standard of Review [4] Indiana Appellate Rule 7(B) permits this court to “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.” In reviewing a sentence, we defer to the trial court’s

decision, and our goal is to determine whether the defendant’s sentence is

inappropriate, not whether some other sentence would be more appropriate.

Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Bowling, as the appellant,

bears the burden of demonstrating his sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 3 of 6 II. Inappropriate Sentence [5] The trial court sentenced Bowling to an aggregate sentence of four years for his

two convictions. It further appears the trial court concluded Bowling’s crimes

constituted an “episode of criminal conduct” thus limiting the court’s

sentencing discretion to a total of four years. See Ind. Code § 35-50-1-2(b); Ind.

Code § 35-50-1-2(d) (stating consecutive terms may not exceed four years if the

most serious crime for which a defendant is convicted is a Level 6 felony).

Thus, Bowling has been given the maximum sentence permitted under this

statute. Bowling contends his sentence is inappropriate because maximum

sentences are “reserved for the very worst offenses and offenders.” Amended

Appellant’s Brief at 10.

[6] In Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2007), trans. denied, with

respect to the argument the maximum sentence is reserved for the worst

offenders, this court stated,

There is a danger in applying this principle [because] [i]f we were to take this language literally, we would reserve the maximum punishment for only the single most heinous offense. In order to determine whether an offense fits that description, we would be required to compare the facts of the case before us with either those of other cases that have been previously decided, or—more problematically—with hypothetical facts calculated to provide a “worst-case scenario” template against which the instant facts can be measured. If the latter were done, one could always envision a way in which the instant facts could be worse. In such case, the worst manifestation of any offense would be hypothetical, not real, and the maximum sentence would never be justified.

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 4 of 6 This leads us to conclude the following with respect to deciding whether a case is among the very worst offenses and a defendant among the very worst offenders, thus justifying the maximum sentence: We should concentrate less on comparing the facts of this case to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant’s character.

[7] Regarding the nature of the offense, Bowling returned home intoxicated and

battered his girlfriend in the presence of her son. Bowling’s actions caused

serious injury to Hoffman including nasal bone fractures, a muscle strain, and

abrasions and contusions on her head and face. When she attempted to find

help, Bowling took her phone so she could not do so and threatened her life.

The nature of Bowling’s offenses are violent and despicable, and justify his four-

year sentence.

[8] Regarding his character, Bowling has around forty prior misdemeanors and

felonies in Ohio and Indiana beginning in 1997, including prior convictions for

intimidation, battery, and domestic violence. See Rutherford v. State, 866 N.E.2d

867, 874 (Ind. Ct. App. 2007) (noting 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.). Additionally, a high number of Bowling’s offenses relate to the use of

alcohol such as possession of an open flask, public intoxication, and driving

under the influence. Bowling’s twenty years of criminal behavior, and failure to

remedy that behavior, does not reflect well on his character and we are not

persuaded his four-year sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 5 of 6 Conclusion [9] Bowling’s four-year sentence is not inappropriate. Accordingly, we affirm his

sentence.

[10] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2271 | May 7, 2018 Page 6 of 6