MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 11 2019, 9:32 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 Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
Michael V. Sherman Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Major D. Townsend, October 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-787 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1804-F3-13
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 1 of 7 [1] Major D. Townsend appeals following his convictions of Level 3 felony
aggravated battery 1 and Level 4 felony unlawful possession of a firearm by a
serious violent felon. 2 Townsend argues his sentences should not have been
ordered served consecutively and his seventeen-year sentence is inappropriate.
We affirm.
Facts and Procedural History [2] On April 7, 2018, Townsend and a group of six friends went to a party at Jesse
Payne’s house. Townsend told his friend, “Shooter,” that Payne owed him
money for a bottle of liquor. (Ex. 1.) When they got to Payne’s home,
Townsend instructed Shooter to go up to the house and “see what’s in there.”
(Id.) Shooter told Townsend that Payne was inside.
[3] Townsend approached the house and began arguing with Payne’s friend, Ricky
Tyms. Payne recognized Townsend and instructed Tyms to give Townsend
forty dollars for the liquor bottle. Townsend continued to yell and began to
clutch something on his side. Before anyone could give cash to Townsend,
Townsend pulled out a gun and shot Payne in the leg. Payne escaped to the
basement and locked the door. Townsend went back to the car and left the
scene. When asked if he shot Payne, Townsend denied it and said he “just
1 Ind. Code § 35-42-2-1.5 (2014). 2 Ind. Code § 35-47-4-5(c) (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 2 of 7 scared him.” (Id.) Soon after the shooting, Townsend fled to Chicago. Two
months later, Townsend was arrested in Chicago.
[4] The State charged Townsend with Level 3 felony aggravated battery, Level 4
felony unlawful possession of a firearm by a serious violent felon, Level 5
felony battery by means of a deadly weapon, 3 Level 5 felony battery resulting in
serious bodily injury, 4 Level 5 felony felon carrying a handgun, 5 Level 6 felony
pointing a firearm, 6 and Class A misdemeanor carrying a handgun without a
license. 7 Townsend pled guilty to Level 3 felony aggravated battery and Level 4
felony unlawful possession of a firearm by a serious violent felon, and the State
dismissed all remaining counts pursuant to a plea deal. The trial court
sentenced Townsend to an aggregate term of seventeen years, with fourteen
years executed in prison and three years suspended to probation.
Discussion and Decision Consecutive Sentences [5] Townsend asserts the trial court abused its discretion when ordering his
sentences served consecutively. Whether to impose consecutive or concurrent
3 Ind. Code § 35-42-2-1(g)(1) (2016). 4 Ind. Code § 35-42-2-1(g)(2) (2016). 5 Ind. Code § 35-47-2-1(e)(2)(B) (2017). 6 Ind. Code § 35-47-4-3(b) (2017). 7 Ind. Code § 35-47-2-1(e) (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 3 of 7 sentences is within the trial court’s sound discretion and is reviewed only for an
abuse of discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App.
2009). The trial court abuses its discretion if its decision is clearly against the
logic and effect of the facts and circumstances before it. Id.
[6] “[T]he court shall determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the: (1) aggravating
circumstances . . . and (2) mitigating circumstances . . . in making a
determination under this subsection[.]” Ind. Code § 35-50-l-2(c). “To impose
consecutive sentences, the trial court must find at least one aggravating
circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999). Herein, the trial
court found multiple aggravators, including Townsend’s extensive criminal
history and the seriousness of the offense. Therefore, the court did not abuse its
discretion when it ordered Townsend to serve his sentences consecutively. See
id. (trial court finding at least one aggravator supported imposing consecutive
sentences).
Inappropriate Sentence [7] Townsend argues his sentence is inappropriate in light of his character and the
nature of his offense. Our standard of review is well settled.
We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 4 of 7 expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of 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). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Couch v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 11 2019, 9:32 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 Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
Michael V. Sherman Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Major D. Townsend, October 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-787 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1804-F3-13
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 1 of 7 [1] Major D. Townsend appeals following his convictions of Level 3 felony
aggravated battery 1 and Level 4 felony unlawful possession of a firearm by a
serious violent felon. 2 Townsend argues his sentences should not have been
ordered served consecutively and his seventeen-year sentence is inappropriate.
We affirm.
Facts and Procedural History [2] On April 7, 2018, Townsend and a group of six friends went to a party at Jesse
Payne’s house. Townsend told his friend, “Shooter,” that Payne owed him
money for a bottle of liquor. (Ex. 1.) When they got to Payne’s home,
Townsend instructed Shooter to go up to the house and “see what’s in there.”
(Id.) Shooter told Townsend that Payne was inside.
[3] Townsend approached the house and began arguing with Payne’s friend, Ricky
Tyms. Payne recognized Townsend and instructed Tyms to give Townsend
forty dollars for the liquor bottle. Townsend continued to yell and began to
clutch something on his side. Before anyone could give cash to Townsend,
Townsend pulled out a gun and shot Payne in the leg. Payne escaped to the
basement and locked the door. Townsend went back to the car and left the
scene. When asked if he shot Payne, Townsend denied it and said he “just
1 Ind. Code § 35-42-2-1.5 (2014). 2 Ind. Code § 35-47-4-5(c) (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 2 of 7 scared him.” (Id.) Soon after the shooting, Townsend fled to Chicago. Two
months later, Townsend was arrested in Chicago.
[4] The State charged Townsend with Level 3 felony aggravated battery, Level 4
felony unlawful possession of a firearm by a serious violent felon, Level 5
felony battery by means of a deadly weapon, 3 Level 5 felony battery resulting in
serious bodily injury, 4 Level 5 felony felon carrying a handgun, 5 Level 6 felony
pointing a firearm, 6 and Class A misdemeanor carrying a handgun without a
license. 7 Townsend pled guilty to Level 3 felony aggravated battery and Level 4
felony unlawful possession of a firearm by a serious violent felon, and the State
dismissed all remaining counts pursuant to a plea deal. The trial court
sentenced Townsend to an aggregate term of seventeen years, with fourteen
years executed in prison and three years suspended to probation.
Discussion and Decision Consecutive Sentences [5] Townsend asserts the trial court abused its discretion when ordering his
sentences served consecutively. Whether to impose consecutive or concurrent
3 Ind. Code § 35-42-2-1(g)(1) (2016). 4 Ind. Code § 35-42-2-1(g)(2) (2016). 5 Ind. Code § 35-47-2-1(e)(2)(B) (2017). 6 Ind. Code § 35-47-4-3(b) (2017). 7 Ind. Code § 35-47-2-1(e) (2017).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 3 of 7 sentences is within the trial court’s sound discretion and is reviewed only for an
abuse of discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App.
2009). The trial court abuses its discretion if its decision is clearly against the
logic and effect of the facts and circumstances before it. Id.
[6] “[T]he court shall determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the: (1) aggravating
circumstances . . . and (2) mitigating circumstances . . . in making a
determination under this subsection[.]” Ind. Code § 35-50-l-2(c). “To impose
consecutive sentences, the trial court must find at least one aggravating
circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999). Herein, the trial
court found multiple aggravators, including Townsend’s extensive criminal
history and the seriousness of the offense. Therefore, the court did not abuse its
discretion when it ordered Townsend to serve his sentences consecutively. See
id. (trial court finding at least one aggravator supported imposing consecutive
sentences).
Inappropriate Sentence [7] Townsend argues his sentence is inappropriate in light of his character and the
nature of his offense. Our standard of review is well settled.
We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 4 of 7 expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of 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). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied.
[8] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A
Level 3 felony is punishable by a fixed term between three and sixteen years,
with the advisory sentence being ten years. Ind. Code § 35-50-2-5(b) (2014).
The trial court sentenced Townsend to ten years; thus, he received the advisory
sentence. A Level 4 felony is punishable by a fixed term between two and
twelve years, with the advisory sentence being six years. Ind. Code § 35-50-2-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 5 of 7 5.5 (2014). The trial court sentenced Townsend to seven years; thus, he
received slightly above the advisory, but well below the maximum.
[9] Regarding the nature of the offense, the trial court examined the seriousness of
the offense and noted Townsend drove to Payne’s home and shot him while
Payne was defenseless. Townsend’s actions were reckless. Townsend went,
uninvited, to Payne’s home and proceeded to shoot him over forty dollars for a
bottle of liquor. To make matters worse, Payne had already instructed Tyms to
give Townsend the money prior to being shot.
[10] When considering the character of the offender, the trial court acknowledged
Townsend took responsibility for the offense, expressed remorse, and has a
good work history. However, one relevant fact that may justify a longer
sentence is the defendant’s criminal history. Johnson v. State, 986 N.E.2d 852,
857 (Ind. Ct. App. 2013). Townsend has a lengthy criminal history that
includes multiple convictions and his repeated violation of the law reflects
negatively on his character. See Clark v. State, 26 N.E.3d 615, 619 (Ind. Ct.
App. 2014) (defendant’s extensive criminal history demonstrated bad character
and allowed for aggravated sentence), trans. denied.
Conclusion [11] The trial court properly found at least one aggravator and, therefore, did not
abuse its discretion when it ordered Townsend to serve his sentences
consecutively. Additionally, in light of Townsend’s character and the nature of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 6 of 7 his offense, his seventeen-year sentence is not inappropriate. Accordingly, we
affirm.
[12] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-787 | October 11, 2019 Page 7 of 7