MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 22 2016, 6:14 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leonard Talton, April 22, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1510-CR-1677 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D08-1404-FC-76
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 1 of 7 [1] Leonard Talton appeals the sentence imposed by the trial court after Talton
pleaded guilty to class C felony possession of cocaine, two counts of class D
felony resisting law enforcement, and class A misdemeanor possession of
marijuana. Talton argues that the trial court abused its discretion in the
mitigating factors it considered and how it weighed those factors. He also
contends that the sentence is inappropriate in light of the nature of the offenses
and his character. Finding no abuse of discretion and that the sentence is not
inappropriate, we affirm.
Facts [2] On April 9, 2014, shortly after midnight, South Bend Police Officers Erik
Schlegelmilch and Michael Stuk observed a fast-moving vehicle travel through
a red light. The officers began to pursue the vehicle, which was driven by a
person later identified as Talton. Attempting to initiate a traffic stop, the
officers activated their police vehicle’s emergency lights and siren. Talton
stopped the vehicle, exited, and fled on foot into a dark alley. The officers
pursued Talton and, after catching up to him, Officer Stuk deployed his taser.
Talton fell to the ground and then got up and continued to flee. Officer
Schlegelmilch then deployed his taser, which slowed Talton enough that Officer
Stuk was able to get on top of him. As the two officers attempted to subdue
Talton, he continued to struggle, kicking Officer Schlegelmilch’s shin hard
enough to cause bleeding, redness, swelling, and severe pain. Talton continued
to struggle and resist being arrested, kicking at the officers and grabbing for their
utility belts. The officers were unable to handcuff Talton until two additional
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 2 of 7 officers arrived at the scene and assisted. The officers arrested Talton and later
found 6.6 grams of cocaine in Talton’s pants pocket.
[3] The State charged Talton with class C felony possession of cocaine, two counts
of class D felony resisting law enforcement, class A misdemeanor possession of
marijuana, and class A misdemeanor operating a vehicle under the influence of
alcohol. On June 8, 2015, Talton pleaded guilty as charged except for the
operating a vehicle under the influence charge, which the State dismissed. On
October 10, 2015, the trial court sentenced Talton as follows: (1) five years for
possession of cocaine; (2) two years each for the two counts of resisting law
enforcement; and (3) one year for possession of marijuana. The trial court
ordered the sentences for possession of cocaine and one of the counts of
resisting law enforcement to be served consecutively, with the remaining
sentences to be served concurrently, for an aggregate seven-year sentence.
Talton now appeals.
Discussion and Decision I. Mitigating Factors [4] While Talton frames his argument as an appropriateness argument, he actually
contends in part that the trial court erred in its consideration of mitigating
factors. As we apply a different standard of review to this argument, we will
consider it separately. The determination of mitigating circumstances is within
the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct.
App. 2007). The trial court is not obligated to accept the defendant’s argument
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 3 of 7 as to what constitutes a mitigating factor, nor is it required to give the same
weight to proffered mitigators as does the defendant. Cotto v. State, 829 N.E.2d
520, 525 (Ind. 2005). We no longer review a trial court’s weighing of mitigators
and aggravators. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218.
[5] Initially, we note that the trial court found two mitigators: Talton’s guilty plea
and his employment. To the extent that Talton contends that the trial court did
not weigh these mitigators heavily enough, we will not review the argument.
Id.
[6] At the sentencing hearing, Talton presented multiple letters from friends and
colleagues regarding his positive involvement in the community. The trial
court declined to find this as a mitigator, and Talton contends that it abused its
discretion in this regard. We disagree. It would have been reasonable for the
trial court to have concluded that, while the letter writers were aware of one
facet of Talton’s life, they were not aware of his extensive and violent criminal
history. As such, it was not an abuse of discretion for the trial court to conclude
that the substance of the letters was not significant or mitigating. See Guzman v.
State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (holding that there is no
abuse of discretion in refusing to find mitigators where they are disputable in
nature, weight, or significance).
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 4 of 7 II. Appropriateness [7] Next, Talton contends that the aggregate seven-year sentence is inappropriate in
light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) provides that this Court may revise a sentence if it is inappropriate in light
of the nature of the offense and the character of the offender. We must
“conduct [this] review with substantial deference and give ‘due consideration’
to the trial court’s decision—since the ‘principal role of [our] review is to
attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’
sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting
Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations
omitted).
[8] Here, Talton was convicted of one class C felony, two class D felonies, and one
class A misdemeanor. For the class C felony, he faced a sentence of two to
eight years, with an advisory term of four years. Ind. Code § 35-50-2-6.1 He
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 22 2016, 6:14 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Charles W. Lahey Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leonard Talton, April 22, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1510-CR-1677 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D08-1404-FC-76
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 1 of 7 [1] Leonard Talton appeals the sentence imposed by the trial court after Talton
pleaded guilty to class C felony possession of cocaine, two counts of class D
felony resisting law enforcement, and class A misdemeanor possession of
marijuana. Talton argues that the trial court abused its discretion in the
mitigating factors it considered and how it weighed those factors. He also
contends that the sentence is inappropriate in light of the nature of the offenses
and his character. Finding no abuse of discretion and that the sentence is not
inappropriate, we affirm.
Facts [2] On April 9, 2014, shortly after midnight, South Bend Police Officers Erik
Schlegelmilch and Michael Stuk observed a fast-moving vehicle travel through
a red light. The officers began to pursue the vehicle, which was driven by a
person later identified as Talton. Attempting to initiate a traffic stop, the
officers activated their police vehicle’s emergency lights and siren. Talton
stopped the vehicle, exited, and fled on foot into a dark alley. The officers
pursued Talton and, after catching up to him, Officer Stuk deployed his taser.
Talton fell to the ground and then got up and continued to flee. Officer
Schlegelmilch then deployed his taser, which slowed Talton enough that Officer
Stuk was able to get on top of him. As the two officers attempted to subdue
Talton, he continued to struggle, kicking Officer Schlegelmilch’s shin hard
enough to cause bleeding, redness, swelling, and severe pain. Talton continued
to struggle and resist being arrested, kicking at the officers and grabbing for their
utility belts. The officers were unable to handcuff Talton until two additional
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 2 of 7 officers arrived at the scene and assisted. The officers arrested Talton and later
found 6.6 grams of cocaine in Talton’s pants pocket.
[3] The State charged Talton with class C felony possession of cocaine, two counts
of class D felony resisting law enforcement, class A misdemeanor possession of
marijuana, and class A misdemeanor operating a vehicle under the influence of
alcohol. On June 8, 2015, Talton pleaded guilty as charged except for the
operating a vehicle under the influence charge, which the State dismissed. On
October 10, 2015, the trial court sentenced Talton as follows: (1) five years for
possession of cocaine; (2) two years each for the two counts of resisting law
enforcement; and (3) one year for possession of marijuana. The trial court
ordered the sentences for possession of cocaine and one of the counts of
resisting law enforcement to be served consecutively, with the remaining
sentences to be served concurrently, for an aggregate seven-year sentence.
Talton now appeals.
Discussion and Decision I. Mitigating Factors [4] While Talton frames his argument as an appropriateness argument, he actually
contends in part that the trial court erred in its consideration of mitigating
factors. As we apply a different standard of review to this argument, we will
consider it separately. The determination of mitigating circumstances is within
the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct.
App. 2007). The trial court is not obligated to accept the defendant’s argument
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 3 of 7 as to what constitutes a mitigating factor, nor is it required to give the same
weight to proffered mitigators as does the defendant. Cotto v. State, 829 N.E.2d
520, 525 (Ind. 2005). We no longer review a trial court’s weighing of mitigators
and aggravators. Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218.
[5] Initially, we note that the trial court found two mitigators: Talton’s guilty plea
and his employment. To the extent that Talton contends that the trial court did
not weigh these mitigators heavily enough, we will not review the argument.
Id.
[6] At the sentencing hearing, Talton presented multiple letters from friends and
colleagues regarding his positive involvement in the community. The trial
court declined to find this as a mitigator, and Talton contends that it abused its
discretion in this regard. We disagree. It would have been reasonable for the
trial court to have concluded that, while the letter writers were aware of one
facet of Talton’s life, they were not aware of his extensive and violent criminal
history. As such, it was not an abuse of discretion for the trial court to conclude
that the substance of the letters was not significant or mitigating. See Guzman v.
State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 2013) (holding that there is no
abuse of discretion in refusing to find mitigators where they are disputable in
nature, weight, or significance).
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 4 of 7 II. Appropriateness [7] Next, Talton contends that the aggregate seven-year sentence is inappropriate in
light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) provides that this Court may revise a sentence if it is inappropriate in light
of the nature of the offense and the character of the offender. We must
“conduct [this] review with substantial deference and give ‘due consideration’
to the trial court’s decision—since the ‘principal role of [our] review is to
attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’
sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting
Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations
omitted).
[8] Here, Talton was convicted of one class C felony, two class D felonies, and one
class A misdemeanor. For the class C felony, he faced a sentence of two to
eight years, with an advisory term of four years. Ind. Code § 35-50-2-6.1 He
received a term of five years—slightly more than the advisory term but well
under the maximum. For the class D felonies, he faced a term of six months to
three years, with an advisory term of one and one-half years. I.C. § 35-50-2-7.
Talton received terms of two years—again, slightly more than the advisory term
but under the maximum. For the class A misdemeanor conviction, Talton
received a maximum one-year term. I.C. § 35-50-3-2. The trial court elected to
1 We apply the versions of the sentencing statutes that were in effect at the time Talton committed the offenses.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 5 of 7 run only two of these terms consecutively, for an aggregate term of seven years,
far less than Talton potentially faced had all terms been run consecutively.
[9] As for the nature of the offenses, Talton led two police officers in a foot chase.
He resisted arrest with such force that he injured one of the officers, required
them to deploy their tasers more than once, and necessitated a call for two back-
up officers. Only with the presence of the two additional officers—four total—
were they able to subdue and arrest him. He also possessed a substantial
amount of cocaine—6.6 grams, which is more than twice the amount required
for a class C felony conviction. Ind. Code § 35-48-4-6. We do not find that the
nature of these offenses aids Talton in his inappropriateness argument.
[10] As for Talton’s character, we are compelled to highlight his extensive criminal
history. He has six prior felony convictions, including resisting law
enforcement, intimidation, felon in possession of a handgun, and dealing in a
sawed-off shotgun. He has nine prior misdemeanor convictions, including
multiple resisting law enforcement convictions, criminal mischief, and criminal
trespass. Talton committed the present offenses while out on bond on five
separate cases, totaling nine charges, including possession of marijuana,
conversion, battery, and operating a vehicle while intoxicated. He was alleged
to have committed another, new resisting law enforcement misdemeanor while
out on bond for the present offense. Talton’s criminal history evinces a plain
disregard for the rule of law, his fellow citizens, and, most pointedly, the
commands and safety of law enforcement officers. He has had multiple
opportunities to reform his behavior but has been either unwilling or unable to
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 6 of 7 do so. We do not find Talton’s attempts to point out other, more positive,
facets of his character to be compelling in light of this history. In sum, we do
not find the sentence imposed by the trial court to be inappropriate in light of
the nature of the offenses and Talton’s character.
[11] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1677 | April 22, 2016 Page 7 of 7