Lloyd Brown, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 27, 2018
• Docket: 18A-CR-469
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 27 2018, 6:33 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 Jerry T. Drook Curtis T. Hill, Jr. Marion, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lloyd Brown, Jr. September 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-469 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 27D01-1610-F5-133 27D01-1610-F5-128 27D01-1710-F6-557

Pyle, Judge.

Statement of the Case

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 1 of 12 [1] Lloyd Brown, Jr. (“Brown”) appeals his aggregate ten-year executed sentence,

following his guilty plea, under three separate cause numbers, to the following

offenses: (1) Level 5 felony intimidation where defendant draws or uses a

deadly weapon;1 (2) Level 5 felony criminal confinement; 2 (3) Level 6 felony

battery resulting in moderate bodily injury;3 (4) Level 6 felony domestic

battery;4 (5) Level 6 felony criminal confinement;5 and (6) Class A

misdemeanor invasion of privacy.6 Brown argues that: (1) the trial court abused

its discretion in its determination of mitigating circumstances; and (2) his

sentence is inappropriate. Finding no error, we affirm the sentence imposed by

the trial court.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion in its determination of mitigating circumstances. 2. Whether Brown’s sentence is inappropriate.

1 IND. CODE § 35-45-2-1. 2 I.C. § 35-42-3-3. 3 I.C. § 35-42-2-1.3. 4 I.C. § 35-42-2-1.3. 5 I.C. § 35-42-3-3. 6 I.C. § 35-46-1-15.1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 2 of 12 Facts

[3] On October 1, 2016, Brown, while armed with a machete, went to Theresa

Riley’s (“Riley”) house demanding to know where his girlfriend, Kelly Davis

(“Davis”), was. Eric Kirkland (“Kirkland”), who lived in the home with Riley,

came outside when he heard yelling, and Brown threatened to chop him up

with the machete. Police later went to Brown’s house and executed a search

warrant and located the machete used to threaten Kirkland. The State charged

Brown in cause number 27D01-1610-F5-133 (“F5-133”) with two counts of

Level 5 felony intimidation and alleged that he was an habitual offender.

[4] Two weeks later, Brown confined and struck Davis, which resulted in

substantial pain, multiple bruises, abrasions, and a bloody nose. The State

charged him with: (1) Level 5 felony criminal confinement; (2) Level 6 felony

battery resulting in moderate bodily injury; and (3) Class A misdemeanor

intimidation in cause number 27D01-1610-F5-128 (“F5-128”). The State also

alleged that he was an habitual offender.

[5] One year later, in October 2017, while on pre-trial release from F5-133 and F5-

128, Brown confronted Davis, and in so doing, violated the no contact order

from F5-128. Brown grabbed Davis, slammed her head into a dryer, and hit

her. The State charged him with: (1) Level 6 felony domestic battery; (2) Level

6 felony criminal confinement; and (3) Class A misdemeanor invasion of

privacy in cause number 27D01-1710-F6-557 (“F6-557”). The State again filed

an habitual offender enhancement.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 3 of 12 [6] At a pre-trial hearing in January 2018, Brown, who was representing himself,

reached a plea agreement with the deputy prosecutor. The plea agreement

called for Brown to plead guilty to offenses in F5-133, F5-128, and F6-557. In

exchange, the State agreed to dismiss the habitual offender enhancements filed

in each case. The State also dismissed count two in F5-133 and count three in

F5-128. Brown pled guilty to the remaining charges and the habitual

enhancements were dismissed pursuant to the agreement. Sentencing was left

open to the court.

[7] Subsequently, at Brown’s sentencing hearing, the presentence investigation

report (“PSI”) revealed that Brown, who was sixty-seven years old at the time

of sentencing, had an extensive criminal history. Brown had several

convictions, including eleven misdemeanor convictions and five felony

convictions. Of those convictions, eight were for battery, including two for

battery by means of a deadly weapon in 1996 and 2004.

[8] During the sentencing hearing, Brown addressed the court regarding his health

and the following exchange took place:

[Brown]: Well, okay. When me and the prosecutor talked, she told me to talk to you about a- on the probation- informal, and, also- and I wanted to say that, uh, I’m under doctor’s care. The Court: You want a what? [Brown]: I’m under doctor’s care. The Court: You’re under doctor’s care. Okay. [Brown]: Yeah. And see that stuff- he didn’t put in this here and I’m blind in one eye and I got (inaudible). And I’m supposed to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 4 of 12 do something- you put me on some of that to help get me- so I can get my health back. Do you understand what I’m saying? The Court: M’hmmm.

(Tr. 35-36). Additionally, the PSI revealed that Brown suffers from high blood

pressure and another blood disorder. He also stated in the PSI that “I will not

tell them (jail) anything about my health.” (App. Vol. 3 at 15). Brown also

offered this apology during the hearing:

And, uh, if it makes [the prosecutor] feel better, I mean, I can’t say it to the victim ‘cause [sic] they’re not here, but anything I did, I’m sorry. I guess I’ll just be tellin’ him I’m sorry ‘cause [sic] I can’t tell it to the victims. They’re not here for me to apologize.

(Tr. 39).

[9] The trial court discussed aggravating and mitigating circumstances as it

imposed its sentence. It found Brown’s criminal history to be an aggravating

circumstance, giving it “great weight.” (Tr. 42). In mitigation, the trial court

found Brown’s guilty plea to be a mitigating circumstance but stated that it gave

it “very little weight.” (Tr. 43). The court explained that Brown received “a

benefit by pleading guilty in that the habitual offender enhancements were

dismissed.” (Tr. 43). The trial court determined that “the aggravating

circumstance in this case greatly outweighs the mitigating circumstance.” (Tr.

43).

[10] Under F5-133, the trial court imposed a five (5) year sentence for Brown’s Level

5 felony intimidation conviction. Under F5-128, the trial court imposed a five

(5) year sentence for Brown’s Level 5 felony criminal confinement conviction

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 5 of 12 and a two (2) year sentence for his Level 6 felony battery resulting in moderate

bodily injury conviction, and it ordered these sentences to be served concurrent

with each other. Finally, under F6-557, the trial court imposed a two (2) year

sentence for Brown’s Level 6 felony domestic battery conviction, a two (2) year

sentence for his Level 6 felony criminal confinement conviction, and a one (1)

year sentence for his Class A misdemeanor invasion of privacy conviction. The

trial court ordered the sentences in F6-557 to be served concurrently with each

other and then suspended the entire sentence to be served on probation. The

trial court ordered the sentences for F5-133, F5-128, and F6-557 to be served

consecutively, resulting in an aggregate sentence of twelve (12) years, with ten

(10) years executed and two (2) years suspended to probation. Brown now

appeals.

Decision

[11] On appeal, Brown contends that: (1) the trial court abused its discretion in its

determination of mitigating circumstances; and (2) his sentence is

inappropriate. We will review each argument in turn.

1. Abuse of Discretion

[12] Brown contends that the trial court abused its discretion by failing to recognize

certain mitigating circumstances. 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). So long as the sentence is within

the statutory range, it is subject to review only for an abuse of discretion. Id. Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 6 of 12 An abuse of discretion will be found where 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. 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.

[13] Brown argues that the trial court abused its discretion by failing to consider his

remorse and health issues as mitigating circumstances. To establish that the

trial court abused its discretion in this regard, the defendant must demonstrate

that the mitigating evidence is both significant and clearly supported by the

record. McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016).

[14] Our appellate rules require that each contention made in the argument section

of an appellant’s brief “must contain the contentions of the appellant on the

issues presented, supported by cogent reasoning.” Ind. Appellate Rule

46(A)(8)(a). This means that an appellant’s argument section “must be

supported by citations to the authorities, statutes, and the Appendix or parts of

the Record on Appeal relied on.” Id. Brown, however, failed to satisfy Indiana

Appellate Rule 46’s requirement of providing a cogent argument, thereby

hindering our review and resulting in waiver of appellate review of his

arguments. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016)

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 7 of 12 (waiving a defendant’s sentencing argument where he failed to provide a cogent

argument).

[15] Waiver notwithstanding, we disagree with Brown’s contention that the trial

court abused its discretion by not including his remorse as a mitigating

circumstance. “[O]ur review of a trial court’s determination of a defendant’s

remorse is similar to our review of credibility judgments: without evidence of

some impermissible consideration by the trial court, we accept its

determination.” Hape v. State, 903 N.E.2d 977, 1002-03 (Ind. Ct. App. 2009),

trans. denied. “The trial court, which has the ability to directly observe the

defendant and listen to the tenor of his or her voice, is in the best position to

determine whether the remorse is genuine.” Corralez v. State, 815 N.E.2d 1023,

1025 (Ind. Ct. App. 2004). Here, Brown’s apology during the sentencing

hearing was made to “make [the prosecutor] feel better.” (Tr. 39). Brown has

not demonstrated that his remorse is both significant and clearly supported by

the record. Accordingly, the trial court did not abuse its discretion by declining

to find Brown’s remorse as a mitigating circumstance.

[16] We also disagree with Brown’s contention that the trial court erred in failing to

consider his health issues to be a mitigating circumstance.7 As noted above, the

PSI revealed Brown suffered from high blood pressure and another blood

7 Brown also asserts that his advanced age should be considered as a health issue. Because Brown did not clearly advance his age as a mitigating factor, the trial court did not abuse its discretion by failing to consider it. See Robinson v. State, 894 N.E.2d 1038, 1043 (Ind. Ct. App. 2008).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 8 of 12 disorder and he refused to tell the jail anything about his health. He also

informed the court that he is blind in one eye and under doctor’s care. The

court acknowledged that he was under doctor’s care but did not consider this to

be a mitigating circumstance. Brown also did not present evidence showing

that he would be unable to receive adequate medical care while incarcerated.

See Henderson v. State, 848 N.E.2d 341, 345 (Ind. Ct. App. 2006) (finding that

the trial court did not err in not considering defendant’s poor health when the

defendant presented no evidence that conditions would be untreatable during

incarceration). Thus, Brown failed to show that his health issues were both

significant and clearly supported by the record. The trial court did not abuse its

discretion in declining to consider Brown’s health issues to be a mitigating

circumstance.

2. Inappropriate Sentence

[17] Brown contends that his sentence is inappropriate in light of the nature of the

offenses and his character. This Court may revise a sentence if it is

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

offender. Ind. Appellate Rule 7(B). “The 7(B) ‘appropriateness’ inquiry is a

discretionary exercise of the appellate court’s judgment, not unlike the trial

court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,

1291-92 (Ind. 2014), cert. denied. “On appeal, though, we conduct that 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.” Id. at 1292 (internal

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 9 of 12 quotation marks, internal bracket, and citations omitted). “Appellate Rule 7(B)

analysis is not to determine whether another sentence is more appropriate but

rather whether the sentence imposed is inappropriate.” Conley v. State, 972

N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

reh’g denied. The defendant has the burden of persuading the appellate court

that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006).

[18] “‘[R]egarding the nature of the offense, the advisory sentence is the starting

point the Legislature has selected as an appropriate sentence for the crime

committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

Anglemyer, 868 N.E.2d at 494). Here, Brown was convicted of three Level 6

felonies, two Level 5 felonies, and one Class A misdemeanor. The sentencing

range for a Level 6 felony is “for a fixed term of between six (6) months and

two and one half (2 ½) years, with the advisory sentence being one (1) year.”

I.C. § 35-50-2-7(b). The sentencing range for a Level 5 felony is “for a fixed

term of between one (1) and six (6) years, with the advisory sentence being

three (3) years.” I.C. § 35-50-2-6(b). For a Class A misdemeanor, a person can

be imprisoned for a “fixed term of not more than one (1) year[.]” I.C. § 35-50-

3-2. The trial court sentenced Brown to a five (5) year sentence for each of his

Level 5 felony convictions, a two (2) year sentence for each of his Level 6

felony convictions, and a one (1) year sentence for his Class A misdemeanor

conviction, resulting in an aggregate sentence of twelve (12) years, with ten (10)

years executed and two (2) years suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 10 of 12 [19] Brown argues that the nature of the offenses does not support consecutive five

(5) year sentences. The nature of Brown’s offenses involve him being armed

with a machete threatening to “chop [Kirkland] up.” (Tr. 18). About two

weeks later, Brown attacked Davis, confined her, and punched her in the face,

which resulted in injuries. Finally, while on pre-trial release, Brown again

harmed Davis by slamming her head into a dryer and confining her. We

recognize that our supreme court has explained that “[w]hether the counts

involve one or multiple victims is highly relevant to the decision to impose

consecutive sentences if for no other reason than to preserve potential

deterrence of subsequent offenses.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). It has also explained that “additional criminal activity directed to

the same victim should not be free of consequences.” Id. Here, Brown

committed multiple crimes under three separate cause numbers. There were

two victims and one of the victims, Davis, was victimized twice. Taken

together, this underscores the severity of the nature of Brown’s crimes.

[20] When considering the character-of-the-offender prong of our inquiry, one

relevant consideration is the defendant’s criminal history. Rutherford v. State,

866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

prior criminal history will vary “based on the gravity, nature and number of

prior offense as they relate to the current offense.” Smith v. State, 889 N.E.2d

261, 263 (Ind. 2008) (internal quotation marks and citation omitted).

[21] Indeed, the most glaring aspect of Brown’s character is his extensive criminal

history. He concedes that he has a lengthy criminal history but asks that we

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 11 of 12 recognize that his criminal history was “clean for several years prior to 2016.”

(Brown’s Br. 16). This argument is unpersuasive. With his criminal history in

mind, we cannot say that his apparent ability to follow the law for a gap in time

is sufficient to render his aggregate ten-year executed sentence for crimes

committed fifteen days apart as inappropriate. Brown’s criminal history dates

back to 1969. His history includes eleven misdemeanor convictions and five

felony convictions, with eight of those convictions being battery convictions.

Additionally, Brown’s history includes parole and probation violations. The

prior offenses are identical to the present offenses in that Brown is still intent on

inflicting fear and violence on those with whom he has conflicts. Brown’s

offenses are part of pattern of disregarding the criminal laws of Indiana with

violent conduct, which reflects negatively on his character.

[22] Brown has not persuaded us that the trial court abused its discretion and that

his aggregate ten-year executed sentence is inappropriate. Therefore, we affirm

the sentence imposed by the trial court.

[23] Affirmed.

Najam, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-469 | September 27, 2018 Page 12 of 12