MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not Jun 14 2016, 8:53 am be regarded as precedent or cited before CLERK any court except for the purpose of Indiana Supreme Court Court of Appeals establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, Attorney General of Indiana LLP Eric P. Babbs Madison, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert D. Gibson, June 14, 2016 Appellant-Defendant, Court of Appeals Case No. 39A01-1512-CR-2326 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Ted R. Todd, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 39D01-1503-F6-294
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 1 of 7 Statement of the Case [1] Robert D. Gibson (“Gibson”) appeals his conviction and sentence for Level 6
felony strangulation1 and Level 6 felony battery2 after entering a guilty plea.
Gibson argues that the trial court failed to advise him of his Boykin rights and
that his aggregate two-year sentence was inappropriate. Concluding that
Gibson is improperly challenging his conviction following a guilty plea on
direct appeal and failed to show that his sentence is inappropriate, we dismiss
Gibson’s challenge to his conviction and affirm his sentence.
[2] We dismiss in part and affirm in part.
Issues 1. Whether Gibson may challenge his conviction on direct appeal following a guilty plea.
2. Whether Gibson’s sentence is inappropriate.
Facts [3] On March 29, 2015, Gibson was charged with strangling and committing
battery against Amber Hicks (“Hicks”) his then live-in girlfriend and mother of
his child. Although he was initially charged with two additional counts, Class
A misdemeanor battery and Level 6 felony domestic battery, he subsequently
pled guilty to Level 6 felony strangulation and Level 6 felony battery on
1 IND. CODE § 35-42-2-9(b)(1). 2 I.C. § 35-42-2-1(d)(6)(2015). This battery statute has been subsequently amended, with an effective date of July 1, 2016. Under this amendment, the relevant subsection has been repealed.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 2 of 7 December 4, 2015. As part of his factual basis for his strangulation charge, he
admitted that he knowingly or intentionally applied pressure to Hicks’ neck in a
rude, insolent, or angry manner that impeded her normal breathing or blood
circulation. Gibson, who was twenty-six years old, further pled guilty to one
count of battery against Hicks, a family or household member. Gibson further
admitted that he had knowingly or intentionally touched Hicks while in the
physical presence of their five-year-old child who Gibson knew was present and
might be able to see or hear the offense. When sentencing Gibson, the trial
court recognized both Gibson’s criminal history, which included domestic
battery and illegal possession of an alcoholic beverage, and his unsuccessful
completion of probation as aggravating circumstances. The court imposed
concurrent sentences of two (2) years on each of Gibson’s convictions and
ordered him to serve that time at the Indiana Department of Correction.
Gibson now appeals.
Decision [4] Gibson argues that: (1) the trial court erred by failing to advise him of his Boykin
rights; and (2) his sentence is inappropriate. We will discuss each argument in
turn.
1. Boykin Rights
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 3 of 7 [5] Gibson first argues that the trial court erred by failing to advise him of his
Boykin3 rights during his guilty plea hearing. He contends that we should
reverse his conviction and remand for a jury trial.
[6] A trial court must be satisfied that the accused has been made aware of his right
against self-incrimination, his right to a jury trial, and his right to confront his
accusers before accepting a guilty plea. Boykin v. Alabama, 395 U.S. 238, 243
(1969). Under Boykin, reversal of a conviction is required where the accused
was not aware of or advised at the time of his plea that he was waiving his
Boykin rights. Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001).
[7] Direct appeal based on a guilty plea, however, is an improper means by which
to challenge a guilty plea conviction. Tumulty v. State, 666 N.E.2d 394, 395
(Ind. 1996). As a general rule of Indiana jurisprudence, entering a guilty plea
restricts the ability to challenge the conviction on direct appeal. Id. The proper
avenue to challenge a conviction based upon a guilty plea is to file a petition for
post-conviction relief pursuant to the Indiana Post-Conviction Rule 1. Id. at
396. Because Gibson improperly raises this challenge to his guilty plea
conviction on direct appeal, we dismiss this argument. Hays v. State, 906
N.E.2d 819, 820 (Ind. 2009) (explaining that a conviction based upon a guilty
plea may not be challenged on direct appeal and must be done by filing a
petition for post-conviction relief).
3 Boykin v. Alabama, 395 U.S. 238 (1969).
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 4 of 7 2. Inappropriate Sentence
[8] Gibson argues that his aggregate two-year sentence for his Level 6 felony
convictions was inappropriate. Gibson, who was twenty-six years old at the
time of his offenses and had a criminal history, suggests that his sentence is
inappropriate because his previous crimes occurred more than five years prior
to the current offenses.
[9] This Court may revise a sentence if it is inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of proving that his sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of Rule 7(B)
review “should be to 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 v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate
ultimately turns on “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.” Id. at 1224.
[10] When determining whether a sentence is inappropriate, we acknowledge that
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.
In the present case, Gibson pled guilty to Level 6 felony strangulation and Level
6 felony battery.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not Jun 14 2016, 8:53 am be regarded as precedent or cited before CLERK any court except for the purpose of Indiana Supreme Court Court of Appeals establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Gregory F. Zoeller Alcorn Sage Schwartz & Magrath, Attorney General of Indiana LLP Eric P. Babbs Madison, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert D. Gibson, June 14, 2016 Appellant-Defendant, Court of Appeals Case No. 39A01-1512-CR-2326 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Ted R. Todd, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 39D01-1503-F6-294
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 1 of 7 Statement of the Case [1] Robert D. Gibson (“Gibson”) appeals his conviction and sentence for Level 6
felony strangulation1 and Level 6 felony battery2 after entering a guilty plea.
Gibson argues that the trial court failed to advise him of his Boykin rights and
that his aggregate two-year sentence was inappropriate. Concluding that
Gibson is improperly challenging his conviction following a guilty plea on
direct appeal and failed to show that his sentence is inappropriate, we dismiss
Gibson’s challenge to his conviction and affirm his sentence.
[2] We dismiss in part and affirm in part.
Issues 1. Whether Gibson may challenge his conviction on direct appeal following a guilty plea.
2. Whether Gibson’s sentence is inappropriate.
Facts [3] On March 29, 2015, Gibson was charged with strangling and committing
battery against Amber Hicks (“Hicks”) his then live-in girlfriend and mother of
his child. Although he was initially charged with two additional counts, Class
A misdemeanor battery and Level 6 felony domestic battery, he subsequently
pled guilty to Level 6 felony strangulation and Level 6 felony battery on
1 IND. CODE § 35-42-2-9(b)(1). 2 I.C. § 35-42-2-1(d)(6)(2015). This battery statute has been subsequently amended, with an effective date of July 1, 2016. Under this amendment, the relevant subsection has been repealed.
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 2 of 7 December 4, 2015. As part of his factual basis for his strangulation charge, he
admitted that he knowingly or intentionally applied pressure to Hicks’ neck in a
rude, insolent, or angry manner that impeded her normal breathing or blood
circulation. Gibson, who was twenty-six years old, further pled guilty to one
count of battery against Hicks, a family or household member. Gibson further
admitted that he had knowingly or intentionally touched Hicks while in the
physical presence of their five-year-old child who Gibson knew was present and
might be able to see or hear the offense. When sentencing Gibson, the trial
court recognized both Gibson’s criminal history, which included domestic
battery and illegal possession of an alcoholic beverage, and his unsuccessful
completion of probation as aggravating circumstances. The court imposed
concurrent sentences of two (2) years on each of Gibson’s convictions and
ordered him to serve that time at the Indiana Department of Correction.
Gibson now appeals.
Decision [4] Gibson argues that: (1) the trial court erred by failing to advise him of his Boykin
rights; and (2) his sentence is inappropriate. We will discuss each argument in
turn.
1. Boykin Rights
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 3 of 7 [5] Gibson first argues that the trial court erred by failing to advise him of his
Boykin3 rights during his guilty plea hearing. He contends that we should
reverse his conviction and remand for a jury trial.
[6] A trial court must be satisfied that the accused has been made aware of his right
against self-incrimination, his right to a jury trial, and his right to confront his
accusers before accepting a guilty plea. Boykin v. Alabama, 395 U.S. 238, 243
(1969). Under Boykin, reversal of a conviction is required where the accused
was not aware of or advised at the time of his plea that he was waiving his
Boykin rights. Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001).
[7] Direct appeal based on a guilty plea, however, is an improper means by which
to challenge a guilty plea conviction. Tumulty v. State, 666 N.E.2d 394, 395
(Ind. 1996). As a general rule of Indiana jurisprudence, entering a guilty plea
restricts the ability to challenge the conviction on direct appeal. Id. The proper
avenue to challenge a conviction based upon a guilty plea is to file a petition for
post-conviction relief pursuant to the Indiana Post-Conviction Rule 1. Id. at
396. Because Gibson improperly raises this challenge to his guilty plea
conviction on direct appeal, we dismiss this argument. Hays v. State, 906
N.E.2d 819, 820 (Ind. 2009) (explaining that a conviction based upon a guilty
plea may not be challenged on direct appeal and must be done by filing a
petition for post-conviction relief).
3 Boykin v. Alabama, 395 U.S. 238 (1969).
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 4 of 7 2. Inappropriate Sentence
[8] Gibson argues that his aggregate two-year sentence for his Level 6 felony
convictions was inappropriate. Gibson, who was twenty-six years old at the
time of his offenses and had a criminal history, suggests that his sentence is
inappropriate because his previous crimes occurred more than five years prior
to the current offenses.
[9] This Court may revise a sentence if it is inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of proving that his sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of Rule 7(B)
review “should be to 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 v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate
ultimately turns on “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.” Id. at 1224.
[10] When determining whether a sentence is inappropriate, we acknowledge that
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.
In the present case, Gibson pled guilty to Level 6 felony strangulation and Level
6 felony battery. At the time of Gibson’s offense, a Level 6 felony conviction
carried a sentencing range of six months to two and one-half years. I.C. § 35-
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 5 of 7 50-2-7(b). During sentencing, the trial court found two aggravating factors: (1)
a previous criminal history; and (2) unsuccessful completion of probation. The
trial court imposed concurrent two year sentences for both of Gibson’s
convictions, which is below the maximum advised by the Legislature.
[11] Details regarding the nature of Gibson’s offenses is limited by the bare-boned
factual basis set forth during the guilty plea hearing. Nevertheless, his offenses
involve strangling and committing battery against Hicks, who was his girlfriend
and mother of his child. Gibson committed the offenses in the presence of the
five-year-old child he shared with the victim and “knew the child was present
and might be able to see or hear the offense.” (Tr. 16). The severity of this
offense is exacerbated by the fact that Gibson committed a similar crime on the
same victim prior to this offense.
[12] Turning to Gibson’s character we note that, Gibson has a prior domestic
battery conviction for which he was unsuccessfully discharged from probation.
Gibson claims that his only two prior run-ins with the criminal justice system as
an adult are not evidence of his criminal character because they occurred five
years before his current offenses. He also asserts that his character is further
offset by the fact that he was self-employed and enrolled at Ivy Tech
Community College at the time of his sentencing.4 While Gibson’s enrollment
4 Gibson seems to argue that the trial court improperly considered his criminal history as an aggravating factor because his crimes are too remote. Gibson’s argument is essentially asking us to “reweigh” the factors used by the trial court which we will not do. See Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). clarified
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 6 of 7 and employment are commendable, we note that Gibson’s prior domestic
battery offense is similar to the offense in the present case and was also
perpetrated against Hicks, the same victim as in this case. The fact that Gibson
committed a substantially similar crime against the same victim reveals, as the
State contends, that Gibson may be willing to repeat the offense in the future.
Additionally, affording Gibson a reduced sentence would undermine the
criminal system because he was given the opportunity for rehabilitation when
he was placed on probation for the first offense, but he chose to commit the
same offense against the same victim.
[13] Gibson has not persuaded us that his aggregate two-year sentence for his Level
6 felony convictions is inappropriate in light of the nature of the offense and his
character. Therefore, we affirm the trial court’s sentence.
[14] Dismissed in part and affirmed in part.
Kirsch, J., and Riley, J., concur.
on reh’g, 875 N.E.2d 218 (Ind. 2007). Additionally, even a limited criminal history will suffice as an aggravating factor. See Atwood v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Memorandum Decision 39A01-1512-CR-2326 | June 14, 2016 Page 7 of 7