Savon Darnell Peak v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2019
• Docket: 18A-CR-3029
• 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 May 29 2019, 10:07 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 Kristin A. Mulholland Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana

Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Savon Darnell Peak, May 29, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3029 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff Boswell, Judge Trial Court Cause No. 45G03-1803-F5-20

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019 Page 1 of 5 [1] Savon Darnell Peak appeals his three-and-a-half-year sentence for four counts

of Level 5 felony intimidation. 1 Peak argues his sentence is inappropriate based

on his character and the nature of his offense. We affirm.

Facts and Procedural History [2] In the late afternoon on March 8, 2018, Peak was released from Lake County

Jail on his own recognizance, where he had been held on felony fraud and

forgery charges under cause number, 45G03-1802-F5-00013 (hereinafter “Cause

F5-13”). Peak went home to change his clothes. Peak then left his house and

approached four juveniles on a heavily populated public street. Peak told the

juveniles that he had just gotten out of jail, and he pulled out a revolver that he

pointed into the air. Peak told the juveniles that, when he saw the cops, he was

going to shoot the police and he would not go back to jail. Peak fired the

revolver into the air and told the juveniles that “if any of them snitched on him,

he would kill them.” (Tr. Vol. II at 22.) The juveniles contacted the police, who

arrived to investigate and later arrested Peak.

[3] On October 11, 2018, the State charged Peak with four counts of Level 5 felony

intimidation and four counts of Level 6 felony intimidation. 2 Peak entered into

an agreement with the State whereby he would plead guilty to the four counts

1 Ind. Code § 35-45-2-2 (2017). 2 Ind. Code § 35-45-2-1 (2017).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019 Page 2 of 5 of Level 5 felony intimidation and the State would dismiss the Level 6 felonies

in this cause and the fraud and forgery charges from Cause F5-13. The

agreement placed a cap of four years on the sentence for each count and

required the court to impose the sentences concurrently. The trial court

sentenced Peak to three-and-a-half years on each count, to be served

concurrently.

Discussion and Decision [4] Peak asserts his sentence is inappropriate. Under Indiana Appellate Rule 7(B),

we may revise a sentence if, after due consideration of the trial court’s decision,

we find the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Adams v. State, 120 N.E.3d 1058, 1064 (Ind. Ct. App.

2019) (quoting Eckelbarger v. State, 51 N.E.3d 169, 170 (Ind. 2016)). 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). 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. The

appellant, Peak, bears the burden of demonstrating his sentence is

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

burden on appellant).

[5] When considering the nature of the offense, we start by looking at the advisory

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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019 Page 3 of 5 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

sentencing range for a Level 5 felony is “a fixed term of between one (1) and six

(6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-50-

2-6 (2014). The plea agreement capped Peak’s sentence at four years for each

count and required the sentences be served concurrently. The trial court

sentenced Peak to three three-and-a-half-year sentences to be served

concurrently. Peak requests we reduce the length of his sentence and order “a

portion of his sentence be served on probation.” (Appellant’s Br. at 9.)

[6] Peak notes no one was injured in this incident. However, to “celebrat[e] being

out of jail,” (App. Vol. II at 49), Peak fired his gun into the air on a heavily

populated public street, which demonstrates his clear disregard for the safety of

others. Peak also threatened the lives of police and the juveniles. Like the

appellant in Adams, who knowingly drove a van—containing a firearm—with

an invalid driver’s license and a felony conviction, Peak’s behavior is

“demonstrative of an indifference to the potential consequences of his actions.”

Adams, 120 N.E.3d at 1065. Like appellant in Adams, Peak chose to follow

through with his actions even if it meant breaking the law in the process.

Consequently, Peak’s sentence is not inappropriate in light of the nature of his

offense.

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

defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

criminal history varies based on the gravity, nature, and number of prior

offenses in relation to the current offense. Id. Excluding this offense, Peak’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019 Page 4 of 5 criminal history consists of conversion, disorderly conduct, residential entry,

fraud, and forgery. (App. Vol. II at 36-37.) Peak’s criminal history dates to

February 2014.

[8] Although Peak apologized to the juveniles and their families, his character does

not demand a revised sentence. A few short hours before this incident

occurred, Peak was released on his own recognizance with pending felony

fraud and forgery charges. Much like the appellant in Childress, who was on

bond for resisting law enforcement at the time he committed additional

offenses, Peak could not stay out of trouble after being released from jail. See

Childress, 848 N.E.2d at 1081. The short time frame between Peak’s release and

this incident demonstrates that a three-and-a-half-year sentence is not

inappropriate for his character.

Conclusion [9] Peak has not demonstrated his sentence is inappropriate in light of the nature of

his offense and his character. Accordingly, we affirm.

[10] Affirmed.

Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3029 | May 29, 2019 Page 5 of 5