Justin Thomas Bower v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 29, 2019
• Docket: 18A-CR-2283
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be Mar 29 2019, 7:02 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Thomas Bower, March 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2283 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Vicki Carmichael, Appellee-Plaintiff. Judge Trial Court Cause No. 10C04-1709-F1-5

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 1 of 9 Statement of the Case [1] Justin Bower (“Bower”) appeals the twenty-five year aggregate sentence

imposed after he pleaded guilty to Level 2 felony attempted robbery resulting in

serious bodily injury1 and Level 6 felony obstruction of justice.2 He argues that

the trial court abused its discretion in sentencing him and that his sentence is

inappropriate in light of his character and the nature of his offenses.

Concluding that the trial court did not abuse its discretion and that the sentence

is not inappropriate, we affirm Bower’s sentence.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion in sentencing Bower.

2. Whether Bower’s sentence is inappropriate in light of the nature of his offense and his character.

Facts [3] In September 2017, Bower went to Jack Blanton’s (“Blanton”) house intending

to steal pills, cash, and a gun. Bower knocked on Blanton’s front door and told

Blanton that he was interested in purchasing an engine lift. Blanton invited

1 IND. CODE §§ 35-42-5-1 and 35-41-5-1. 2 IND. CODE § 35-44.1-2-2.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 2 of 9 Bower into his home and made a phone call about the lift. Bower pulled a knife

out of his pocket and stabbed Blanton in the back, neck, and shoulder between

eight and fifteen times. Bower then ran out of Blanton’s house with the knife,

got into his vehicle, and left the knife along the side of the road. As a result of

the stabbing, Blanton was hospitalized for several months with extensive

injuries.

[4] The State charged Bower with: (1) Level 1 felony attempted murder, (2) Level

2 felony attempted robbery resulting in serious bodily injury, (3) Level 2 felony

conspiracy to commit robbery resulting in serious bodily injury, and (4) Level 6

felony obstruction of justice. In August 2018, pursuant to the terms of a plea

agreement, Bower pleaded guilty to attempted robbery and obstruction of

justice in exchange for the dismissal of the remaining charges. The agreement

left sentencing to the trial court’s discretion with the limitations that the

aggregate sentence was capped at thirty (30) years, the executed sentence was

capped at seventeen and one-half (17.5) years, and the sentences would run

concurrent with each other.

[5] The trial court held a sentencing hearing in September 2018. Blanton testified

that Bower had stabbed him in the back, shoulders, and neck. According to

Blanton, he had lost fifteen to eighteen units of blood and had “none of [his]

own blood.” (Tr. 28). Blanton further testified that he had spent “several

months” in the hospital and was “still going through treatments.” (Tr. 27).

According to Blanton, he suffers from brain damage and significant memory

loss because of the blood loss. In addition, Blanton testified that he had sold his

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 3 of 9 house because he did not “want to be around there no more.” (Tr. 28). He

moved one hundred miles away to be near his sister but had to leave his friends.

[6] The Presentence Investigation Report revealed that Bower had two prior

misdemeanor convictions for theft and failing to possess a driver’s license. In

addition, Bower’s blind fiancé testified that Bower was her primary caregiver.

[7] The trial court found as aggravating circumstances Bower’s prior criminal

history as well as the serious nature of Blanton’s injuries that was “greater than

the serious bodily injury required under the Level 2 felony[.]” (Tr. 31). The

trial court further found as a mitigating factor the loss that Bower’s dependents

and fiancé would suffer based upon the long term of incarceration. The trial

court sentenced Bower to: (1) twenty-five (25) years for the Level 2 felony, with

seventeen and one-half (17.5) years executed and seven and one-half years (7.5)

suspended and (2) two and one-half (2.5) years for the Level 6 felony. The trial

court further ordered the sentences to run concurrent with each other.

[8] Bower now appeals his sentence.

Decision [9] Bower argues that: (1) the trial court abused its discretion in determining the

aggravating factors used to sentence him; and (2) his sentence is inappropriate

in light of his character and the nature of his offenses. We address each of his

arguments in turn.

1. Abuse of Discretion in Sentencing

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 4 of 9 [10] Bower contends that the trial court abused its discretion in sentencing him.

Sentencing decisions rest within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

within the statutory range, it is subject to review only for an abuse of discretion.

Id. 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. at 491. A trial

court may abuse its discretion in a number of ways, including: (1) failing to

enter a sentencing statement at all; (2) entering a sentencing statement that

includes aggravating and mitigating factors that are unsupported by the record;

(3) entering a sentencing statement that omits reasons that are clearly supported

by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91.

[11] Here, Bower contends that the trial court abused its discretion by including

improper aggravating factors that were unsupported by the record. Our review

of the evidence reveals otherwise.

[12] The trial court’s first aggravating factor took note of the serious nature of

Blanton’s injuries. Bower argues that the trial court abused its discretion when

it determined that the serious nature of Blanton’s injury was “greater than the

serious bodily injury required under the Level 2 felony[.]” (Tr. 31). See IND.

CODE § 35-42-5-1. However, “[e]ven when serious bodily injury is an element

of the crime charged, the severity of the injury may serve as a valid aggravating

circumstance.” Patterson v. State, 846 N.E.2d 723, 731 (Ind. Ct. App. 2006)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 5 of 9 (relying on Lang v. State, 461 N.E.2d 1110 (Ind. 1984) and finding it was not an

abuse of discretion to use the serious nature of the victim’s injury as an

aggravating circumstance to enhance the sentence). This is no different than

the trial court considering the particularized circumstances of the factual

elements as aggravating factors when evaluating the nature of the offense. See

McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (explaining that when

evaluating the nature of the offense, the trial court may properly consider the

particularized circumstances of the factual elements as aggravating factors). See

also IND. CODE § 35-38-1-7.1 (“In determining what sentence to impose for a

crime, the court may consider the following aggravating circumstances . . . the

harm, injury, loss, or damage suffered by the victim of an offense was . . .

significant; and . . . greater than the elements necessary to prove the

commission of the offense.”). Here, our review of the record reveals that Bower

stabbed Blanton eight to fifteen times, Blanton lost copious amounts of blood,

Blanton was hospitalized for several months, and Blanton suffers from brain

damage and significant memory loss because of the blood loss. As a result, the

trial court did not abuse its discretion by considering these facts as aggravating

factors in support of its sentence.

[13] The second challenged aggravating factor is Bower’s criminal history. Bower

specifically argues that his two misdemeanor convictions are too “insignificant”

to constitute an aggravating factor. (Bower’s Br. at 12). However, INDIANA

CODE § 35-38-1-7.1(a) provides that “[i]n determining what sentence to impose

for a crime, the court may consider the following aggravating circumstances: . .

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 6 of 9 . (2) The person has a history of criminal or delinquent behavior.” At

sentencing, the significance of a criminal history varies based on the gravity,

nature and number of prior offenses as they relate to the current offense.

McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). Thus, the weight of criminal

history may vary, but consideration of it is not an abuse of discretion. Id. The

trial court did not abuse its discretion in considering Bower’s criminal history to

be an aggravating factor.

2. Inappropriate Sentence

[14] Bower also argues that his sentence is inappropriate. Indiana Appellate Rule

7(B) provides that we may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, we find that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. The defendant bears the burden of persuading this Court that his

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

Whether we regard a sentence as inappropriate 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.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008).

[15] The Indiana Supreme Court has further explained that “[s]entencing is

principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Id. at 1222. “Such deference should prevail

unless overcome by compelling evidence portraying in a positive light the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 7 of 9 nature of the offense (such as accompanied by restraint, regard, and lack of

brutality) and the defendant’s character (such as substantial virtuous traits or

persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

(Ind. 2015).

[16] When determining whether a sentence is inappropriate, the advisory sentence is

the starting point the legislature has selected as an appropriate sentence for the

crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for a

Level 2 felony is ten (10) to thirty (30) years, and the advisory sentence is

seventeen and one-half (17.5) years. IND. CODE § 35-50-2-4.5. The sentencing

range for a Level 6 felony is between six (6) months and two and one-half (2.5)

years, and the advisory sentence is one (1) year. IND. CODE § 35-50-2-7. Here,

Bower was sentenced to twenty-five years for the Level 2 felony, with seventeen

and one-half years executed and seven and one-half years suspended, and to

two and one-half years for the Level 6 felony. The trial court further ordered

the sentences to run concurrently to each other.

[17] Regarding Bower’s character, we note that this was not Bower’s first contact

with the criminal justice system. Bower has prior misdemeanor convictions for

theft and failing to be in possession of a driver’s license. Even a minor criminal

history is a poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d

440, 448 (Ind Ct. App. 2014), trans. denied.

[18] Regarding the nature of the offense, we note that after having been invited into

Blanton’s home, Bower stabbed Blanton in the back, neck, and shoulder

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 8 of 9 between eight and fifteen times. The attack was unprovoked, and Blanton had

no opportunity to defend himself. As a result of the stabbing, Blanton was

hospitalized for several months with extensive injuries. Specifically, Blanton

lost copious amounts of blood from his body and he suffers from brain damage

and has significant memory loss due to the blood loss. In addition, Blanton

sold his house because he no longer felt comfortable living there following the

attack.

[19] Bower has failed to meet his burden to persuade this Court that his aggregate

twenty-five year sentence, which includes an executed sentence of seventeen

and one-half years, is inappropriate.

[20] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2283 | March 29, 2019 Page 9 of 9