Lloyd Owen May, III v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 18, 2020
• Docket: 20A-CR-1170
• 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 Nov 18 2020, 7:55 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. DeArmitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lloyd Owen May, III, November 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-1170 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1907-F5-3852

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 1 of 6 Statement of the Case [1] Lloyd Owen May III (“May”) appeals the four and one-half (4½) year sentence

imposed after he pled guilty to Level 5 felony intimidation.1 His sole argument

is that his sentence is inappropriate in light of the nature of the offense and his

character. Concluding that May’s sentence is not inappropriate, we affirm the

trial court.

[2] We affirm.

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

Facts [3] In July 2019, Steven Eubanks (“Eubanks”) saw May sitting in front of Eubanks’

neighbor’s front door. As Eubanks approached his neighbor’s house to

confront May, Eubanks noticed that May had plugged his cell phone into an

exterior outlet on the neighbor’s house. Eubanks told May to stop stealing

electricity and to leave the neighbor’s property. May stood up, pulled a knife

out of his pocket, and swung the knife less than an inch away from Eubanks’

face while threatening to “cut [Eubanks] up.” (App. Vol. 2 at 18). May also

threatened to return and burn down the neighbor’s house. As he walked away

1 I.C. § 35-45-2-1.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 2 of 6 from the neighbor’s house, May turned around and yelled, “I’ll be back.”

(App. Vol. 2 at 18). Eubanks contacted the police, who located May near the

neighbor’s house. May admitted that he had used methamphetamine that day.

[4] The State charged May with Level 5 felony intimidation, Level 6 felony

possession of methamphetamine, Level 6 felony unlawful possession of a

syringe, and Class A misdemeanor resisting law enforcement. In April 2020,

May pled guilty to Level 5 felony intimidation, and the State dismissed the

remaining charges.

[5] At May’s sentencing hearing, May’s pre-sentence investigation report revealed

that May has an extensive criminal history that includes eight prior felony

convictions and twelve prior misdemeanor convictions. The felony

convictions, which occurred in both Indiana and Florida, include multiple

convictions for intimidation as well as convictions for strangulation, possession

of a controlled substance without a prescription, possession of a weapon, and

receiving stolen property. The misdemeanor convictions include multiple

convictions for battery and resisting law enforcement. May’s pre-sentence

investigation report also revealed multiple probation violations and that May

had had the opportunity to participate in substance abuse treatment outside of a

penal facility and had not successfully completed the treatment program. In

addition, May was on parole for a prior intimidation conviction when he

committed the intimidation offense in this case. The State further pointed out

that May had accrued two jail violations for battery and one jail violation for

intimidation while incarcerated for the offense in this case.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 3 of 6 [6] At the end of the sentencing hearing, the trial court sentenced May to four and

one-half (4½) years in the Department of Correction. May now appeals his

sentence.

Decision [7] May 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).

[8] 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

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).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 4 of 6 [9] 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. Here, May pled guilty to a

Level 5 felony. The sentencing range for a Level 5 felony is one (1) to six (6)

years, and the advisory sentence is three (3) years. IND. CODE § 35-50-2-6.

Here, the trial court sentenced May to four and one-half (4½) years, which is

less than the maximum sentence.

[10] Regarding the nature of the offense, we note that when Eubanks asked May to

leave Eubanks’ neighbor’s property, May stood up, pulled a knife out of his

pocket, and swung the knife less than an inch away from Eubanks’ face while

threatening to “cut [Eubanks] up.” (App. Vol. 2 at 18). May also threatened to

return and burn down the neighbor’s house.

[11] As for May’s character, May has an extensive criminal history that includes

eight prior felony convictions and twelve prior misdemeanor convictions.

Several of the felony convictions were for intimidation, which is the offense to

which May pled guilty in this case. In addition, May accrued three jail

violations, including one for intimidation, while incarcerated for the offense in

this case. May’s former contacts with the law have not caused him to reform

himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans.

denied. May has failed to persuade this Court that his four and one-half (4½)

year sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 5 of 6 [12] Affirmed.

Vaidik, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1170 | November 18, 2020 Page 6 of 6