Pierre Burdette v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2017
• Docket: 02A04-1702-CR-384
• 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 Jun 27 2017, 8:45 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 Donald C. Swanson, Jr. Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Pierre Burdette, June 27, 2017 Appellant-Defendant, Court of Appeals Case No. 02A04-1702-CR-384 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1611-F6-1218

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 1 of 10 STATEMENT OF THE CASE [1] Appellant-Defendant, Pierre D. Burdette (Burdette), appeals his sentence

following his open guilty plea to interference with the reporting of a crime, a

Class A misdemeanor, Ind. Code § 35-45-2-5(1); invasion of privacy, a Class A

misdemeanor, I.C. § 35-46-1-15.1(2); and criminal mischief, a Class B

misdemeanor, I.C. § 35-43-1-2(a).

[2] We affirm.

ISSUES [3] Burdette raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by improperly considering an

aggravating circumstance in sentencing Burdette; and

(2) Whether Burdette’s sentence is inappropriate in light of the nature of the

offense and character of the offender.

FACTS AND PROCEDURAL HISTORY [4] On September 10, 2016, Burdette went to the home of his ex-girlfriend’s mother

in Fort Wayne, Allen County, Indiana, where the ex-girlfriend was present. At

the time, Burdette’s ex-girlfriend had an active protective order prohibiting

Burdette from contacting her. Upon Burdette’s arrival, Burdette’s ex-girlfriend

immediately called 9-1-1. As the ex-girlfriend was talking to a police

dispatcher, Burdette snatched the phone from her hand and threw it on the

ground, causing it to shatter. In the course of grabbing the phone away,

Burdette scratched his ex-girlfriend behind the ear, and when she tried to Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 2 of 10 retrieve the phone from the ground, Burdette pushed her away. The former

couple’s shared children, a five-year-old and a one-year-old, witnessed the

event. Burdette fled the scene before the police arrived.

[5] On November 8, 2016, the State filed an Information, charging Burdette with

Count I, domestic battery committed in the presence of a child, a Level 6

felony, I.C. § 35-42-2-1.3(a)(1),(b)(2); Count II, interference with the reporting

of a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1); Count III, invasion of

privacy, a Class A misdemeanor, I.C. § 35-46-1-15.1(2); and Count IV, criminal

mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a). On January 17, 2017,

after a jury was sworn in for the scheduled jury trial, Burdette pled guilty to the

misdemeanor charges, Counts II, III, and IV. In exchange, the Level 6 felony

was dismissed. On February 16, 2017, the trial court held a sentencing hearing

and sentenced Burdette to concurrent terms of one year, one year, and 180

days, respectively, for Counts II, III, and IV. The trial court ordered the

aggregate one-year sentence to be fully executed in the Indiana Department of

Correction.

[6] Burdette now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Abuse of Sentencing Discretion

[7] Burdette claims that the trial court abused its discretion by improperly

considering an aggravating factor in formulating his sentence. “[S]entencing

decisions rest within the sound discretion of the trial court and are reviewed on

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 3 of 10 appeal only for an abuse of discretion.” Gleason v. State, 965 N.E.2d 702, 710

(Ind. Ct. App. 2012) (citing Anglemyer v. State, 868 N.E.2d 482, 490, clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007)). It is an abuse of discretion “if 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. (quoting Anglemyer, 868 N.E.2d at 490).

[8] “A person who commits a Class A misdemeanor shall be imprisoned for a fixed

term of not more than one (1) year,” and “[a] person who commits a Class B

misdemeanor shall be imprisoned for a fixed term of not more than one

hundred eighty (180) days.” I.C. §§ 35-50-3-2, -3. Here, the trial court imposed

the maximum sentence for each of Burdette’s two Class A misdemeanors and

his Class B misdemeanor. However, the trial court ordered concurrent

sentences, thereby resulting in an aggregate one-year sentence. In imposing the

sentence, the trial court stated,

I’m going to take the facts and circumstances in this case as aggravating. I find it highly aggravating that you knew there was a no contact order in place, and you proceeded to go over and directly violate that no contact order showing disdain for the court as well as not being able to follow my court orders. I find that aggravating. I also find aggravating that you were on probation when you committed this offense. You were on probation for a criminal offense. When you—your original case, the case that you were on probation for[,] you were given two years and a suspended sentenced. You’ve been given the opportunity to have a suspended sentence, and that was two years, and you decided to violate that.

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 4 of 10 (Tr. Vol. II, p. 29). In addition, the trial court identified as a mitigating

circumstance that Burdette took responsibility for his actions by pleading guilty.

[9] On appeal, Burdette claims that it was an abuse of discretion for the trial court

to consider the facts and circumstances of the case as an aggravating

circumstance. While Burdette acknowledges that our courts have previously

determined that the nature and circumstances of an offense may be a valid

aggravator, Burdette contends that the trial court failed to detail why the

particular circumstances of his crimes warranted an enhanced sentence.

Because the trial court did not describe “something beyond the elements of the

crimes [as] aggravating,” Burdette maintains that it was an abuse of discretion

to impose the maximum sentence. (Appellant’s Br. p. 11).

[10] It is well established that, with respect to sentencing, a trial court may abuse its

discretion by “(1) issuing an inadequate sentencing statement, (2) finding

aggravating or mitigating factors that are not supported by the record, (3)

omitting factors that are clearly supported by the record and advanced for

consideration, (4) or by finding factors that are improper as a matter of law.”

Gleason, 965 N.E.2d at 710. If a trial court includes a finding of aggravating or

mitigating circumstances in its sentencing statement, “it must identify all of the

significant circumstances and ‘explain why each circumstance has been

determined to be aggravating or mitigating.’” Id. (quoting Anglemyer, 868

N.E.2d at 490). However, the trial court’s duty to issue a statement with “a

reasonably detailed recitation of the trial court’s reasons for imposing a

particular sentence” is limited to sentences imposed for felony offenses. Id. The

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 5 of 10 sentencing statutes for Class A and B misdemeanors do “not provide a

presumptive or advisory sentence, but rather a maximum allowable sentence.”

Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016). Thus, “the trial

court was not required to articulate and balance aggravating and mitigating

circumstances before imposing sentence on the misdemeanor conviction[s].

Nor was the trial court required to issue a sentencing statement with the

misdemeanor conviction[s].” Id. (citation omitted). Accordingly, Burdette’s

abuse of sentencing discretion claim has no merit.

II. Inappropriate Sentence

[11] Although the trial court imposed a sentence that is statutorily permissible,

Burdette seeks a downward revision of his sentence pursuant to our court’s

authority under Indiana Appellate Rule 7(B). “‘[S]entencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

(quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Yet, we may

revise a sentence 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.” Ind. Appellate Rule 7(B).

[12] Appellate Rule 7(B) provides for sentence review in an “attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Although

“reasonable minds may differ on the appropriateness of a sentence,” ultimately,

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 6 of 10 “whether 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 [a] myriad [of] other factors that come to light in a given

case.” Parks, 22 N.E.3d at 555 (internal quotation marks omitted); Cardwell,

895 N.E.2d at 1224. Our court focuses on “the length of the aggregate sentence

and how it is to be served.” Cardwell, 895 N.E.2d at 1224. Burdette bears the

burden of persuading this court that his sentence is inappropriate. Corbally v.

State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). Here, Burdette requests that we

revise his sentence to either one year fully suspended or one year on home

detention.

[13] Regarding the nature of the offense, Burdette contends that there is nothing

particularly egregious about his crime to warrant a fully executed one-year

sentence. Burdette admitted that he violated a protective order by driving to a

home where his ex-girlfriend was present. When the ex-girlfriend attempted to

report Burdette’s violation to the police, he slapped her cellphone out of her

hands, causing it to shatter when it hit the ground. In doing so, Burdette also

scratched his ex-girlfriend. Thereafter, he pushed her away when she tried to

pick up her phone. All of this was done in the presence of their young children.

Burdette argues that his “motive for going to the residence was to see his

children,” which “surely cannot” support a maximum sentence. (Appellant’s

Br. p. 13). Yet, Burdette fails to acknowledge the impact that his actions had on

his children. According to the probable cause affidavit, the former couple’s

five-year-old child told the investigating police officer “that he felt

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 7 of 10 ‘[u]ncomfortable’ when he saw ‘Daddy jumping on Mommy.’” (Appellant’s

App. Vol. II, p. 27). Furthermore, despite pleading guilty to the three charged

misdemeanor offenses, Burdette indicated that his ex-girlfriend “provoke[d]”

the incident by “keeping [him] from [his] children.” (Tr. Vol. II, p. 27). We are

unpersuaded by Burdette’s attempts to justify his conduct.

[14] In addition, nothing with respect to Burdette’s character warrants a reduced

sentence. Namely, Burdette’s criminal history establishes his repeated disregard

for the laws and courts of this state. At the time Burdette committed the present

offenses, he was on probation for a Level 6 felony for resisting law enforcement.

Significantly, within the first month of being placed on probation for that

offense, Burdette committed another Level 6 felony resisting law enforcement,

as well as Class A misdemeanor driving while suspended and Class B

misdemeanor reckless driving. He also absconded from supervised probation at

one point. As a result, Burdette’s sentence was modified to one year of home

detention, followed by one year of probation. Although he successfully

completed his home detention, Burdette’s subsequent refusal to lead a law-

abiding life ultimately led to the present conviction and the revocation of his

probation. Because it is clear that lenient sentences and alternative placements

have failed to rehabilitate Burdette in the past, an executed sentence is now

necessary for Burdette to comprehend the ramifications of his criminal

behavior. Burdette cites his “terrible upbringing,” the fact “that he nonetheless

learned a trade due to sheer willpower,” and the hardship that incarceration

will cause his dependents as factors meriting sentence revision. (Appellant’s Br.

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 8 of 10 p. 14). We, however, find that Burdette’s criminal proclivity overshadows the

positive choices he made following a rough childhood. Also, the fact that

Burdette’s children witnessed his physical aggression against their mother

hardly speaks positively for his character.

[15] We further note that it is not the term of his sentence that Burdette specifically

challenges; rather, it is the fact that the trial court ordered an executed sentence

as opposed to a suspended sentence or home detention. As the State points out,

Burdette has failed to meet his burden of establishing that his placement is

inappropriate because Burdette refused to cooperate with the presentence

investigation and screening process for alternative sentencing placement. See

King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (“A defendant

challenging the placement of a sentence must convince us that the given

placement is itself inappropriate. As a practical matter, trial courts know the

feasibility of alternative placements in particular counties or communities.”

(citation omitted)). Accordingly, we cannot say that Burdette’s executed

sentence is inappropriate in light of the nature of the offense and his character.

CONCLUSION [16] Based on the foregoing, we conclude that the trial court did not abuse its

sentencing discretion because it has no obligation to consider aggravating or

mitigating circumstances when imposing a sentence for misdemeanor crimes.

We further conclude that Burdette’s sentence is not inappropriate in light of the

nature of the offense and his character.

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 9 of 10 [17] Affirmed.

[18] Najam, J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 02A04-1702-CR-384 | June 27, 2017 Page 10 of 10