Lavon Washington v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 13, 2017
• Docket: 27A05-1604-CR-749
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 13 2017, 8:16 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 Evan K. Hammond Curtis T. Hill, Jr. Grant County Public Defender Attorney General of Indiana Marion, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lavon Washington, January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 27A05-1604-CR-749 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey Todd, Appellee-Plaintiff. Judge Trial Court Cause Nos. 27D01-1511-F5-132 27D01-1411-F6-127 27D01-0611-FA-224

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 1 of 9 [1] The trial court found Lavon Washington guilty of one count of Level 5 felony

battery, 1 one count of Level 6 felony residential entry, 2 and twenty-six counts of

Level 6 felony invasion of privacy. 3 In addition, the court found Washington

violated the conditions of two probation terms he was serving when he

committed those new crimes. Washington appeals his sentence, claiming the

trial court abused its discretion by declining to find any mitigating

circumstances. We affirm.

Facts and Procedural History [2] Washington and C.W. were married in November 2011 and have a son, L.W.,

who was born March 7, 2013. Washington’s relationship with C.W. was

tumultuous. In January 2015, they began living separately, and in July 2015,

C.W. filed for divorce. 4

[3] On the evening of October 12, 2015, a guest stayed overnight at C.W.’s home.

Washington came to C.W.’s house twice, knocked on her door, and sent C.W.

text messages, but C.W. did not let Washington in the house. The next day, on

October 13, 2015, Washington returned to C.W.’s home, forced his way inside

1 Ind. Code § 35-42-2-1(b)(1) (2014). 2 Ind. Code § 35-43-2-1.5 (2014). 3 Ind. Code § 35-46-1-15.1 (2014). 4 The court dissolved the marriage on November 13, 2015.

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 2 of 9 the house, and battered C.W. while L.W. was present. C.W. sustained bruises

and other marks from the attack.

[4] Shortly after Washington left, C.W. called the police. Washington was

arrested, charged with Level 5 felony battery and Level 6 felony residential

entry, and placed in jail. The court ordered Washington to have no contact

with C.W. or L.W., but Washington continued to call C.W. from jail. 5 Based

on those calls, the State subsequently charged Washington with twenty-six

counts of Level 6 felony invasion of privacy. The State also filed two petitions

to revoke the probation Washington was serving for convictions of domestic

battery and invasion of privacy against C.W. under Cause Number 27D01-

1411-F6-127 and of dealing in cocaine under Cause Number 27D01-0611-FA-

224.

[5] On February 3, 2016, the court held a bench trial. The court found Washington

guilty as charged. The court also found Washington’s commission of the

present crimes violated the two terms of probation he was serving. After trial,

Washington reported to jail while he awaited sentencing. In further violation of

the trial court’s no-contact order, Washington continued to call C.W. from jail.

He also mailed C.W. a letter, addressing it to a code name to conceal the fact

that he was contacting her.

5 At the bench trial, C.W. admitted setting up a Google phone number in December 2015 in order for Washington to contact her from jail.

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 3 of 9 [6] At sentencing, on March 14, 2016, the court found an aggravating factor in

Washington’s prior criminal history, which included convictions of battery in

2002, 2003, and 2014; battery resulting in bodily injury in 2005; dealing in

cocaine in 2006; and invasion of privacy in 2014. The court also found an

aggravating factor in Washington’s continued contact with C.W. after he was

convicted on February 3, 2016. The court found no mitigating factors. Because

the aggravating factors outweighed the mitigating factors, the court found it was

appropriate to impose sentences above the advisory sentences. The court

sentenced Washington to four years for battery as a Level 5 felony; one and a

half years for residential entry as a Level 6 felony, to be served concurrent with

the battery sentence; and two and a half years each for the twenty-six counts of

invasion of privacy, with each of those sentences to be served concurrent with

each other but consecutive to the other two counts. Thus, the aggregate

sentence imposed for the current crimes was six and a half years.

[7] At the same hearing, the court revoked Washington’s probation in Cause

Number 27D01-1411-F6-127 and ordered Washington to serve the remaining

two years of that sentence consecutive to all his other sentences. The court also

revoked Washington’s probation in Cause Number 27D01-0611-FA-224 and

ordered him to serve five years of that sentence consecutive to all other

sentences. Thus, the court ordered Washington to serve, in total, thirteen and a

half years, with credit for 104 days served.

Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 4 of 9 [8] Washington argues the trial court abused its discretion in declining to find any

mitigating factors. 6 Sentencing decisions rest within the sound discretion of the

trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

875 N.E.2d 218 (Ind. 2007). As long as a sentence is within the statutory range,

we review only for an abuse of discretion. Id. “An abuse of discretion occurs if

the sentencing 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. A trial court is not required to accept a

defendant’s argument as to what is a mitigating factor or to provide mitigating

factors the same weight as does a defendant. Conley v. State, 972 N.E.2d 864,

873 (Ind. 2012), reh’g denied. “If the trial court does not find the existence of a

mitigating factor after it has been argued by counsel, the trial court is not

obligated to explain why it has found that the factor does not exist.” Anglemyer,

868 N.E.2d at 493. However, a court abuses its discretion if it does not

6 Prior to addressing the court’s rejection of alleged mitigators, we deal with Washington’s misconceptions about his sentence. In his Appellant’s Brief, Washington states repeatedly his sentence is nineteen years. As we explained in the facts, the court ordered Washington to serve thirteen and a half years, not nineteen years. Of those thirteen and a half years, only six and a half years were imposed for Washington’s new convictions under Cause Number 27D01-1511-F5-132 of battery, residential entry, and invasion of privacy. The other seven of the thirteen and a half years the court ordered Washington to serve were execution of the suspended sentences in Cause Numbers 27D01-1411-F6-127 and 27D01-0611-FA-224 based on Washington’s violation of the terms of his probation in both of those causes. Washington does not argue the court abused its discretion by revoking his probation terms or by ordering execution of those suspended sentences pursuant to its authority under Indiana Code § 35-38-2-3. Nor has he provided any cogent argument suggesting how the court’s finding of aggravators or mitigators is relevant to the court’s ordering those suspended sentences to be executed. Nevertheless, we note the court was required, pursuant to Indiana Code 35-50-1-2(e) (2015), to order the two-year and five-year executed sentences for probation violations be served consecutive to Washington’s new sentences.

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 5 of 9 consider significant mitigators advanced by the defendant and clearly supported

by the record. Id. at 490.

[9] Washington argues the trial court should have found as mitigators: (1) the

undue hardship Washington’s imprisonment would cause L.W.; and (2) C.W.’s

inducement and facilitation of the offenses. 7 We disagree.

[10] The trial court did not abuse its discretion in declining to find Washington’s

imprisonment would result in undue hardship for L.W. An allegation that the

trial court failed to find a mitigating circumstance requires Washington to show

the mitigating circumstance is “both significant and clearly supported by the

record.” Id. at 493. Washington argues L.W., who has Down’s Syndrome,

would “significantly suffer an undue burden.” (Appellant’s Br. at 9.) While we

acknowledge L.W.’s Down’s Syndrome may present a “special circumstance”

that would justify a finding of “undue hardship,” see Dowdell v. State, 720

N.E.2d 1146, 1154 (Ind. 1999) (“absent special circumstances, trial courts are

not required to find that imprisonment will result in an undue hardship”), this

alone does not satisfy Washington’s burden.

[11] The record demonstrates prior to his incarceration Washington was not living

with L.W., paying child support, or supporting him in any other manner. C.W.

7 Washington also claims the court should have found a third mitigator: C.W.’s statement at sentencing that she did not agree Washington should receive a nineteen-year sentence. Because the trial court ordered Washington to serve thirteen and a half years, not nineteen years, we cannot say the court overlooked C.W.’s statement at the sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 6 of 9 testified that because of L.W.’s Down’s Syndrome, L.W. receives Social

Security Disability income and Washington was not court-ordered to pay child

support. C.W. further acknowledged “with [her] son having Down’s

Syndrome, everything is twice as hard,” (Tr. at 190), and that “[L.W.] does

need both parents, but even when [Washington] was free, he didn’t wanna [sic]

be a parent.” (Id.) We therefore cannot say L.W. will experience a hardship

because of Washington’s imprisonment, and thus Washington has not met his

burden of demonstrating the trial court abused its discretion by failing to

recognize a significant mitigator clearly supported by the record.

[12] We likewise disagree the court abused its discretion in declining to find C.W.’s

alleged inducement or facilitation of the crimes as a mitigator. We note at

sentencing Washington’s counsel described Washington and C.W.’s

relationship as “a dangerous game.” (Id. at 205.) Defense counsel noted

C.W.’s creation of the Google phone number for purposes of contact with

Washington, and argued, “it’s their relationship and it’s how it worked,” and

“[C.W.] was getting something out of those phone calls.” (Id. at 204-205.) We

note the trial court did not find this as a mitigator and was under no obligation

to explain why. See Anglemyer, 868 N.E.2d at 493 (“the trial court is not

obligated to explain why it has found that the factor does not exist”).

Nonetheless, the record demonstrates that while C.W. set up the Google

account in order to answer phone calls from Washington, Washington initiated

the calls in direct violation of the no-contact order, and he continued to do so

even after the court convicted him of twenty-six counts of invasion of privacy

Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 7 of 9 for the same behavior. See Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App.

2007) (“When determining whether a party committed the act of invasion of

privacy identified in Indiana Code § 35-46-1-15.1, we do not consider whether

the victim knowingly ignored the protective order but, rather, whether the

defendant knowingly violated the protective order.”). We therefore cannot say

this circumstance is significantly mitigating or clearly supported by the record.

[13] The trial court properly considered all of the circumstances. The undisputed

facts show Washington battered C.W. while L.W. was present. This is not

Washington’s first offense of this kind or his first offense against C.W. The trial

court noted the “troubling pattern” presented by Washington’s previous

convictions of battery. (Tr. at 207.) Indeed, Washington received a suspended

sentence for his conviction of dealing cocaine and probation for his most recent

battery conviction. The trial court had given Washington many chances to

correct his behavior, but Washington continued to offend. The court explicitly

noted its disappointment with Washington:

I disagree that [Washington] responded well to Reentry Court. Reentry Court - its whole purpose is to reduce recidivism and yet here we have recidivism in 2014 through the invasion of privacy and domestic battery convictions and then these counts before the Court, so I’m saddened in that respect.

(Id. at 207-208.) The court concluded, “because the aggravating circumstances

outweigh any mitigating circumstances, the sentences, appropriately, should be

above the advisory sentence.” (Id. at 208.) The court’s statements demonstrate

the court considered and balanced the facts before it. It was well within the Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-749 | January 13, 2017 Page 8 of 9 court’s purview to find no mitigators. As Washington has not demonstrated the

trial court overlooked any significant mitigators that were clearly supported by

the record, we find no abuse of discretion.

Conclusion [14] The trial court did not abuse its discretion in declining to find any mitigating

circumstances. Accordingly, we affirm.

[15] Affirmed.

Kirsch, J., and Crone, J., concur.

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