Michael Lamar Jackson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 24, 2018
• Docket: 18A-CR-905
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 24 2018, 5:58 am regarded as precedent or cited before any 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 Yvette M. LaPlante Curtis T. Hill, Jr. Keating & LaPlante, LLP Attorney General of Indiana Evansville, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Lamar Jackson, October 24, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-905 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1703-F4-1462

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-905 | October 24, 2018 Page 1 of 5 [1] Michael Lamar Jackson appeals his nine-year sentence for Level 4 felony

unlawful possession of a firearm by a serious violent felon. 1 He argues his

sentence is inappropriate based on the nature of his offense and his character.

We affirm.

Facts and Procedural History [2] On March 14, 2017, police executed a search warrant at Jackson’s residence

based on information someone was dealing heroin at that location. During

their search, officers found three guns. Jackson indicated he had received one

of the guns as payment for heroin. On March 1, 2017, the State charged

Jackson with Level 4 felony unlawful possession of a firearm by a serious

violent felon. 2

[3] On February 26, 2018, Jackson entered a guilty plea under which the parties left

sentencing to the discretion of the trial court. On March 23, 2018, the trial

court held a sentencing hearing and then sentenced Jackson to nine years

executed in the Department of Correction.

Discussion and Decision

1 Ind. Code § 35-47-4-5(c) (2016). 2 Jackson does not deny he is a serious violent felon based on his prior conviction of robbery.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-905 | October 24, 2018 Page 2 of 5 [4] We may revise a sentence if it is inappropriate in light of the nature of the

offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). Our review is deferential

to the trial court’s decision, and our goal is to determine whether the appellant’s

sentence is inappropriate, not whether some other sentence would be more

appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. We

consider not only the aggravators and mitigators found by the trial court, but

also any other factors appearing in the record. Johnson v. State, 986 N.E.2d 852,

856 (Ind. Ct. App. 2013). The appellant bears the burden of demonstrating his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[5] When considering the nature of the offense, the advisory sentence is the starting

point to determine the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

advisory sentence for a Level 4 felony is six years, with a sentencing range of

two to twelve years. Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced

Jackson to nine years.

[6] One factor we consider when determining the appropriateness of a deviation

from the advisory sentence is whether there is anything more or less egregious

about the offense committed by the defendant that makes it different from the

“typical” offense accounted for by the legislature when it set the advisory

sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

Here, Jackson argues his offense, Level 4 felony unlawful possession of a

firearm by a serious violent felon, was a non-violent crime and he only

Court of Appeals of Indiana | Memorandum Decision 18A-CR-905 | October 24, 2018 Page 3 of 5 possessed the firearms for protection. However, the State presented evidence

the firearms in question were stolen, had been given to Jackson as payment for

drugs, and were found in an apartment where police found evidence of heroin

dealing. Based thereon, we cannot say Jackson’s sentence is inappropriate

based on the nature of his offense. See Shotts v. State, 53 N.E.3d 526, 539 (Ind.

Ct. App. 2016 (sentence not inappropriate for unlawful possession of a firearm

by a serious violent felon despite Shotts’ argument that the details of the crime

could not be considered the “most egregious”), trans. denied.

[7] When considering the character of the offender, one relevant fact is the

appellant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

App. 2007). The significance of criminal history in assessing a defendant’s

character varies based on the gravity, nature, and number of prior offenses in

relation to the current offense. Id. In his brief, Jackson acknowledges he “has

far from a clean past[,]” (Br. of Appellant at 8), and cites to the “well-prepared

colloquy,” (id.), he presented to the trial court. While Jackson’s statement

focuses on his efforts to rehabilitate his behavior, such as receiving his

associate’s degree and speaking to young people about the dangers of criminal

activity, it ignores that he continued to deflect responsibility for possessing the

firearm by claiming the firearm belonged to his roommate.

[8] Jackson’s statement and argument on appeal attempt to mask his lengthy

criminal history, which started when he was a juvenile and escalated in severity

into his adulthood. Jackson has twenty-three prior misdemeanor and four prior

felony convictions, ranging from substance-related offenses to criminal deviate

Court of Appeals of Indiana | Memorandum Decision 18A-CR-905 | October 24, 2018 Page 4 of 5 conduct and robbery. We cannot say Jackson’s sentence is inappropriate based

on his character. See Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017)

(sentence not inappropriate based on Perry’s extensive criminal history and

veiled expression of remorse).

Conclusion [9] Based on the nature of his offense and his character, Jackson’s sentence is not

inappropriate. Accordingly, we affirm the trial court’s decision.

[10] Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-905 | October 24, 2018 Page 5 of 5