Michael J. Jackson Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 4, 2017
• Docket: 79A04-1703-CR-660
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 04 2017, 7:48 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 Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General of Indiana Lafayette, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael J. Jackson Jr., October 4, 2017 Appellant-Defendant, Court of Appeals Case No. 79A04-1703-CR-660 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause Nos. 79D02-1607-F5-107 79D02-1609-F2-26

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 1 of 12 Case Summary [1] Facing charges under three separate causes, Michael J. Jackson Jr. pled guilty

pursuant to a single plea agreement to four felony offenses. Sentencing was left

to the trial court’s discretion, and the trial court sentenced him to an aggregate

term of twenty years. In this consolidated appeal, Jackson challenges the

portion of his sentence attributable to the offenses in one of the three causes,

arguing that his sentence is inappropriate in light of the nature of the offenses

and his character. He also contends that the probation condition restricting him

from entering a liquor store is unconstitutionally vague. As a preliminary

matter, we find that because Jackson pled guilty to all four offenses pursuant to

a single plea agreement, Indiana precedent requires that we review his

aggregate sentence, not merely a portion of it. We conclude that Jackson has

failed to carry his burden to show that his twenty-year aggregate sentence is

inappropriate. We also reject Jackson’s challenge to his probation condition.

Accordingly, we affirm.

Facts and Procedural History [2] On July 13, 2016, Chan Weng Yan was walking to her apartment when she

saw a male, later identified as Jackson, ahead of her. After Yan walked behind

a building, she no longer saw Jackson. Yan arrived at her apartment building

and went inside. As she reached the door to her apartment, Jackson grabbed

her from behind, wrapping both of his arms around her body. He lifted her up

and threw her to the ground. While Yan was on the ground, Jackson searched

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 2 of 12 her pockets, took her wallet, and fled. Yan had $6 in her wallet. The next day,

Yan told police that her knee and two fingers hurt due to Jackson’s actions.

[3] Four days later, Minglang Li, who lived in the same apartment building as Yan,

was returning home. As he unlocked the door to his second-floor apartment, he

turned to see Jackson running up the stairs toward him. Jackson said, “Give

me all your money or I will killl [sic] you.” Appellant’s App. Vol. 2 at 132. Li

gave Jackson approximately $100. As Jackson ran away, he told Li, “Don’t tell

anyone about this, I know where you live.” Id.

[4] Police investigated the two robberies and identified Jackson as a suspect. They

went to an apartment where Jackson was expected to be and knocked on the

door. Jackson answered. Although officers recognized Jackson, he repeatedly

told them his name was John. After the police arrested him for false informing,

he told them his real name. Police transported Jackson to the police station.

There, Jackson was advised of his rights, waived his right to remain silent, and

admitted to robbing Yan and Li. The State charged Jackson under cause

number 79D02-1607-F5-107 (“Cause F5-107”) with two counts of level 5 felony

robbery, one count of level 6 felony intimidation, and two counts of class A

misdemeanor theft. On August 3, Jackson posted bond and was released.

[5] On August 5, the State charged Jackson under cause number 79D05-1608-CM-

2826 (“Cause CM-2826”) with class A misdemeanor criminal trespass.

Apparently, he posted bond and was released.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 3 of 12 [6] On August 5, the State also filed a motion to revoke Jackson’s bond in Cause

F5-107. On August 19, the trial court issued an order revoking Jackson’s bond

and issued a warrant for his arrest.

[7] On August 27, Jackson went to sixty-three-year-old Connie Maus’s apartment

and knocked on the door. When Maus opened the door, Jackson put a gun to

her head and forced his way inside. Maus backed up and sat on her bed.

Maus told police that Jackson said, “If you scream I’ll shoot you.” Id. at 134.

Maus told him that she did not have any money. While she sat on her bed,

Jackson looked around and found her handgun and a handgun magazine,

which he stole. Then, he held the gun to her head and took her sapphire ring

off her finger. Jackson fled the apartment. Police arrested him the following

day.

[8] In September 2016, under cause number 79D02-1609-F2-26 (“Cause F2-26”),

the State charged Jackson with level 2 felony burglary, level 3 felony armed

robbery, level 4 felony burglary, level 3 felony criminal confinement (later

amended to level 6), level 5 felony intimidation, class A misdemeanor resisting

law enforcement, level 6 felony theft of a firearm, and class A misdemeanor

theft.

[9] On February 8, 2017, pursuant to an open plea agreement, Jackson pled guilty

to two level 5 felony robberies under Cause F5-107, and level 3 felony armed

robbery and level 6 felony criminal confinement under Cause F2-26. The State

agreed to dismiss the remaining charges in both causes and Cause CM-2826.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 4 of 12 The plea agreement “embodie[d] the entire agreement between the parties.” Id.

at 62. In Cause F5-107, the trial court sentenced Jackson to consecutive terms

of four years, with three years executed and one year suspended, for each

robbery conviction. In Cause F2-26, the trial court imposed a twelve-year

sentence for the armed robbery conviction, with eight years executed and four

years suspended to probation, and a concurrent two-year sentence for the

criminal confinement conviction. The trial court ordered that the sentences in

the two causes run consecutive to each other, for an aggregate sentence of

twenty years, with fourteen years executed and six years suspended. As a

condition of Jackson’s probation, the trial court restricted him from “entering a

bar, tavern, or liquor store.” Id. at 73.

[10] Jackson timely filed his notices of appeal in Causes F5-107 and F2-26. He

subsequently filed a petition to consolidate the appeals, which we granted.

Discussion and Decision

Section 1 – We must review Jackson’s aggregate sentence for all offenses under the plea agreement. [11] As a preliminary matter, we observe that Jackson challenges only the portion of

his sentence attributable to Cause F5-107, i.e., his two convictions for level 5

felony robbery. In Webb v. State, 941 N.E.2d 1082, 1087-88 (Ind. Ct. App.

2011), trans. denied, we held that a defendant may not limit our review of his

sentence by merely challenging an individual sentence within a single

sentencing order that includes multiple sentences. There, the defendant pled

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 5 of 12 guilty without a plea agreement to robbery, six counts of fraud, and three

additional counts in one cause, and misdemeanor OWI from a separate but

consolidated cause. Id. at 1084-85. On appeal, he challenged only his twenty-

year maximum sentence for robbery rather than his twenty-five-year aggregate

sentence. Id. at 1085. In holding that our review could not be so limited, we

relied on Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), where our

supreme court emphasized the importance of focusing our review on the

aggregate sentence rather than the length of the sentence on an individual

count. Webb, 941 N.E.2d at 1087-88.

[12] Here, the trial court issued separate sentencing orders for Causes F5-107 and

F2-26 and ordered that the sentences run consecutively. Notwithstanding the

separate sentencing orders, Jackson pled guilty pursuant to a single plea

agreement that covered three separate causes against him. The plea agreement

is captioned with all three cause numbers and articulates the convictions or

dismissal of counts under each. Appellant’s App. Vol. 2 at 62. Specifically, in

exchange for Jackson’s guilty plea to a total of four counts, the remaining six

counts under Cause F2-26 were dismissed and Cause CM-2826 was dismissed

in its entirety. To review his sentence only with respect to two felony

convictions, as he urges, would essentially amount to ignoring important

aspects of the contract between the parties, such as the substantial benefit that

he received in exchange for his guilty plea. The plea agreement represented a

single transaction that “embodie[d] the entire agreement between the parties.”

Id. We believe that the reasoning in Cardwell and Webb extends to

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 6 of 12 circumstances such as these where a defendant pleads guilty pursuant to a

single plea agreement to offenses charged under separate cause numbers. In

fact, we have recently so held in Moyer v. State, No. 79A04-1703-CR-477, 2017

WL 3975653 at * 2 (Ind. Ct. App. Sept. 11, 2017), opinion not yet certified. We

review Jackson’s aggregate twenty-year sentence accordingly.

Section 2 – Jackson has failed to carry his burden to show that his sentence is inappropriate. [13] Jackson asks us to reduce his sentence pursuant to Appellate Rule 7(B), which

states, “The Court 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.” When reviewing a sentence, our principal role is to leaven the

outliers rather than necessarily achieve what is perceived as the correct result in

each case. Cardwell, 895 N.E.2d at 1225. “We do not look to determine if the

sentence was appropriate; instead we look to make sure the sentence was not

inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing

is principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Cardwell, 895 N.E.2d 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). In conducting our review, we may consider all

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 7 of 12 aspects of the penal consequences imposed by the trial court in sentencing, i.e.,

whether it consists of executed time, probation, suspension, home detention, or

placement in community corrections, and whether the sentences run

concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010). In addition, as we assess the nature of the offense and character of the

offender, “we may look to any factors appearing in the record.” Boling v. State,

982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Jackson has the burden to show

that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218.

[14] Turning first to the nature of the offenses, we observe that “the advisory

sentence is the starting point the Legislature selected as appropriate for the

crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Jackson’s

aggregate twenty-year sentence comprises a twelve-year term for his level 3

felony conviction (concurrent to a two-year term for his level 6 felony

conviction) and consecutive four-year terms for his two level 5 felony

convictions. The sentencing range for a level 3 felony is three to sixteen years,

with an advisory term of nine years. Ind. Code § 35-50-2-5(b). The sentencing

range for a level 5 felony is one to six years, with an advisory term of three

years. Ind. Code § 35-50-2-6(b). A level 6 felony has a sentencing range of six

months to two and one-half years, with an advisory term of one year. Ind.

Code § 35-50-2-7(b).

[15] Jackson argues that a sentence above the advisory is inappropriate because

none of the victims suffered injury, one of the robberies involved no use of

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 8 of 12 force, and one of the robberies involved a loss of only $6. Jackson’s argument

ignores the decidedly violent circumstances of his crimes. He grabbed Yan with

both arms, lifted her up, and threw her to the ground. The following day, her

knee and fingers hurt. He threatened to kill Li and warned him not to report

the crime. His third victim was a sixty-three-year-old woman. He forced his

way into her home with a gun pointed at her head. He threatened to kill her if

she screamed. He held a gun to her head while he took her ring off her finger.

In addition, he committed all three robberies within only forty-five-days of each

other. On balance, we cannot say that Jackson has shown compelling evidence

portraying the nature of the offenses in a positive light.

[16] As for Jackson’s character, he claims that he was only eighteen years old at the

time of his offenses, his childhood was extremely difficult, he has mental health

issues, his juvenile criminal history is not substantial, and family and

community leaders showed support for him at sentencing. In describing his life,

he notes that he was born “a drug baby” and designated a child in need of

services, and his parents’ parental rights were terminated. Tr. at 38. He was

adopted by his grandmother at age seven, but when he was twelve his

grandfather died leaving him without a male role model. Psychological

evaluations show that he was diagnosed with attention-deficit/hyperactivity

disorder (“ADHD”) and oppositional-defiant disorder at age seven, for which

he received medication until he refused treatment at age sixteen. His most

recent psychological evaluation includes diagnoses for ADHD, intermittent

explosive disorder, cannabis use disorder, and antisocial personality disorder.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 9 of 12 His criminal history consists of two juvenile adjudications for misdemeanor

conversion and visiting a common nuisance. He was also charged with battery

resulting in bodily injury, but that was dismissed after he wrote a letter of

apology to the victim.

[17] We acknowledge that Jackson has experienced many hardships from the time

of his birth, and we understand that it is often difficult to overcome such

adversity. We observe that the trial court recognized Jackson’s youth and

hardships as mitigating factors. However, even though Jackson was offered

numerous services through probation and the Department of Child Services, he

has exhibited a disturbing propensity to engage in criminal activity. He

committed the instant offenses after warrants for his arrest were issued from

East Chicago City Court for failing to appear for 2016 charges of possession of

marijuana and criminal trespass and from LaPorte Superior Court for a 2016

charge of theft. At the time of sentencing in the instant case, the East Chicago

and LaPorte charges were still pending. After posting bond for Cause F5-107,

he committed the offense under Cause CM-2826. After he posted bond for

Cause CM-2826, he committed the offenses under Cause F2-26. Despite his

numerous contacts with law enforcement, he appears to be unwilling or unable

to refrain from criminal activity, and his actions are continually becoming more

violent. We also note that he lied to police about his identity during their

investigation under Cause F5-107. We conclude that Jackson has failed to

carry his burden to show that his sentence is inappropriate based on the nature

of the offenses and his character. Accordingly, we affirm his sentence.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 10 of 12 Section 3 – The probation condition that restricts Jackson from entering a “liquor store” is not unconstitutionally vague. [18] Jackson also asserts that the probation condition that restricts his entry into a

“liquor store” is unconstitutionally vague in that it may be read to prohibit

entry to any business that sells liquor, such as pharmacies and grocery stores, in

which case it is impermissibly overbroad. Appellant’s App. Vol. 2 at 73.1 In

reviewing his argument, we note that trial courts have broad discretion in

determining the appropriate conditions of a defendant’s probation. Bratcher v.

State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied (2014). However,

“[a] probationer has a due process right to conditions of supervised release that

are sufficiently clear to inform him of what conduct will result in his being

returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)

(citing United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002)). To avoid

being unconstitutionally vague, the condition must be clear enough so that

individuals of ordinary intelligence would be adequately informed of the

general conduct that is proscribed. Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct.

App. 2013). The condition “need not list, with itemized exactitude, every item

of conduct that is prohibited.” Id.

[19] In support of his claim, Jackson relies on Collins v. State, 911 N.E.2d 700 (Ind.

Ct. App. 2009), trans. denied. There, a convicted sex offender appealed his

1 Jackson did not object to this probation condition at sentencing and signed the probation condition form. However, the State does not argue that he failed to preserve his claim for appellate review.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 11 of 12 probation condition that restricted him from visiting “businesses that sell sexual

devices or aids.” Id. at 714. Another panel of this Court concluded that that

condition was unfairly broad because it could extend to drug stores. Id.

[20] We disagree with Jackson that the term “liquor store” is akin to “businesses

that sell sexual devices or aids.” “Liquor store” is not commonly understood to

mean any business that sells liquor; rather, it is commonly understood as a

specific kind of store with the principal purpose of selling liquor. Furthermore,

as the State points out, our legislature has defined liquor store in the context of

alcohol laws. “The term ‘package liquor store’ means a place or establishment

that meets the requirements provided in IC 1971, 7.1-3-10, and whose exclusive

business is the retail sale of alcoholic beverages and commodities that are

permissible under this title for use or consumption only off the licensed

premises.” Ind. Code § 7.1-1-3-28. The terms that Jackson asserts could be

confused with liquor store have different definitions. See Ind. Code §§ 7.1-1-3-

18.5 (defining grocery store) and -15 (defining drug store). Consequently, we

conclude that the probation condition restricting Jackson from entering liquor

stores is constitutionally sound.

[21] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A04-1703-CR-660 | October 4, 2017 Page 12 of 12