Roy Truman Nelson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 17, 2020
• Docket: 19A-CR-1562
• 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 Jan 17 2020, 10:10 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 Ronald J. Moore Curtis T. Hill, Jr. The Moore Law Firm, LLC Attorney General of Indiana Richmond, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roy Truman Nelson, January 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1562 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Charles K. Todd, Appellee-Plaintiff Jr. Judge Trial Court Cause No. 89D01-1903-F6-175

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 1 of 6 [1] Roy Truman Nelson appeals his sentence for Level 6 felony resisting law

enforcement. 1 He argues his sentence is inappropriate in light of the nature of

his offense and his character. We affirm.

Facts and Procedural History [2] On March 9, 2019, Officer Tyler Smith and Officer Tyler Shoemaker of the

Richmond Police Department received a dispatch regarding a possible domestic

disturbance at Nelson’s residence. The dispatch relayed that Nelson had left his

house in a burgundy Kia Optima, that Nelson was intoxicated, and that Nelson

did not have a valid driver’s license. The officers located Nelson’s vehicle and

began to follow him in their police car. When the officers got behind Nelson’s

vehicle, Nelson immediately performed a u-turn. The officers also made a u-

turn and activated their emergency lights and siren. However, Nelson did not

pull over. He continued to drive for approximately one mile, and then he

parked in the driveway of his house. The officers exited their car and

repeatedly ordered Nelson to exit his vehicle. Nelson exited his vehicle, but he

disobeyed the officers’ commands to face away from them, to put his hands in

the air, and to walk backward toward them. At one point, Officer Smith

deployed his taser, but it was not effective. Eventually, the officers handcuffed

Nelson.

1 Ind. Code § 35-44.1-3-1 (2016).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 2 of 6 [3] The State charged Nelson with Level 6 felony resisting law enforcement based

on Nelson’s act of fleeing from police officers in a vehicle after the officers

activated their patrol vehicle’s lights and siren. On May 16, 2019, Nelson pled

guilty without a plea agreement. The trial court accepted his plea and entered

the conviction. On June 11, 2019, the trial court held a sentencing hearing. On

June 26, 2019, the trial court sentenced Nelson to an executed term of one and

one-half years in the Wayne County Jail. The trial court found two aggravating

circumstances: (1) Nelson’s significant criminal history, and (2) Nelson’s

commission of the instant offense while on probation for a crime he committed

in Virginia. Additionally, the trial court found Nelson’s acceptance of

responsibility and expression of remorse to be a mitigating circumstance.

Discussion and Decision [4] We “may revise a sentence authorized by statute if, after due consideration of

the trial court’s decision, [we determine] the sentence is inappropriate in light of

the nature of the offense and the character of the offender.” Ind. Appellate

Rule 7(B). Our role in reviewing a sentence pursuant to Appellate Rule 7(B)

“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). “The defendant bears the burden of

persuading this court that his or her sentence is inappropriate.” Kunberger v.

State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 3 of 6 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.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

App. 2014).

[5] In assessing the nature of an offense, “the advisory sentence is the starting point

for determining the appropriateness of a sentence.” Pelissier v. State, 122 N.E.3d

983, 990 (Ind. Ct. App. 2019), trans. denied. We assess whether a particular

offense is different from the “typical” offense accounted for by the legislature in

setting the advisory sentence. See Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

2008), trans. denied. A Level 6 felony is punishable by a term of imprisonment

between six months and two and one-half years, with the advisory sentence

being one year. Ind. Code § 35-50-2-7. Therefore, Nelson’s sentence is above

the advisory sentence but below the maximum sentence. Nelson acknowledges

“his offense was serious in nature and put himself and police in danger.”

(Appellant’s Br. at 15.) We agree and cannot say there is anything about his

offense that makes it more or less egregious than the typical act of using a

vehicle to resist law enforcement. See Rich, 890 N.E.2d at 54 (holding

defendant’s offense was not more or less egregious than a typical burglary).

[6] Nelson argues his sentence is inappropriate in light of his character because he

is remorseful and is capable of being reformed. Nelson notes he was employed

prior to his arrest and he hopes to return to work when released. In assessing a

defendant’s character, one relevant factor is the defendant’s criminal history.

Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 4 of 6 Nelson’s criminal history is significant. Nelson has seven prior felony

convictions, including convictions of robbery with a dangerous weapon and

assault by strangulation in North Carolina, and eleven misdemeanor

convictions, including a previous resisting law enforcement conviction. His

record includes five probation violations. That Nelson committed the current

offense while on probation also reflects poorly on his character. See Eisert v.

State, 102 N.E.3d 330, 335 (Ind. Ct. App. 2018) (stating defendant’s repeated

violations of the terms of pre-trial release and court orders “does not suggest

[he] is a person who respects the law or the court’s authority”), trans. denied.

[7] The trial court considered Nelson’s expression of remorse at sentencing.

Nelson’s employment prior to incarceration and his desire to work when

released from incarceration do not render his sentence inappropriate. See

Holmes v. State, 86 N.E.3d 394, 399 (Ind. Ct. App. 2017) (stating “many people

are gainfully employed; therefore, a defendant’s employment is not necessarily

a mitigating factor”), trans. denied. Therefore, in light of his offense and

character, Nelson’s sentence is not inappropriate. See Garcia, 47 N.E.3d at 1252

(holding sentence above the advisory sentence was not inappropriate given

defendant’s significant criminal history).

Conclusion [8] Nelson’s sentence is not inappropriate given the nature of his offense and his

character, particularly his significant criminal history and his status as a

probationer at the time of the instant offense. Accordingly, we affirm.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 5 of 6 [9] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1562 | January 17, 2020 Page 6 of 6