Scott Jordan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 27, 2017
• Docket: 02A03-1612-CR-2750
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 27 2017, 11:03 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Scott K. Jordan, April 27, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1612-CR-2750 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1604-F3-30

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2750 | April 27, 2017 Page 1 of 5 Statement of the Case [1] Scott K. Jordan appeals his sentence following his conviction for robbery, as a

Level 3 felony. On appeal he raises one issue, namely, whether his sentence is

inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History [2] On April 18, 2016, Jordan went to a Walgreens pharmacy in Fort Wayne and,

while armed with a firearm, gave to one of the pharmacists a written note that

stated: “Bottle of methadone now or I will shoot I have nothing to lose 30 sec!”

Appellant’s App. Vol. II at 9, 25. Jordan had placed his hand under his coat to

indicate that he had a gun, which caused the pharmacist to believe that he did

have a gun. The pharmacist gave Jordan one bottle with 100 10mg pills of

methadone, and Jordan swallowed some of the pills as he exited the Walgreens.

The police subsequently located Jordan seated in a grassy area on the west side

of the Walgreens. Jordan admitted to the officers that he was the one who had

robbed the store, and the officers found the stolen bottle of methadone pills in

Jordan’s jacket pocket.

[3] On April 22, the State charged Jordan with robbery, as a Level 3 felony. On

October 14, Jordan pleaded guilty as charged without a plea agreement.

Following a sentencing hearing on November 8, the court imposed a sixteen-

year sentence. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2750 | April 27, 2017 Page 2 of 5 Discussion and Decision [4] Jordan contends that his sentence is inappropriate in light of the nature of the

offense and his character. Article 7, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

Ct. App. 2007) (alteration original). This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of the nature of his offenses and his character. See Ind. Appellate Rule

7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

the trial court’s recognition or non-recognition of aggravators and mitigators as

an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her

sentence has met th[e] inappropriateness standard of review,” Roush, 875

N.E.2d at 812 (alteration original). He must demonstrate that his sentence is

inappropriate in light of both the nature of the offense and his character.

Baumholser v. State, 62 N.E.3d 411, 418 (Ind. Ct. App. 2016), trans. denied.

[5] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2750 | April 27, 2017 Page 3 of 5 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 myriad other facts that

come to light in a given case.” Id. at 1224. The question is not whether another

sentence is more appropriate, but rather whether the sentence imposed is

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

Deference to the trial court “prevail[s] unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[6] Jordan contends that the nature of the offense does not support an enhanced

sentence. Although there was a lack of violence or brutality in his armed

robbery, Jordan must also show that his sentence is inappropriate in light of his

character. Baumholser, 62 N.E.3d at 418. He has failed to do so. While Jordan

points to his guilty plea and acceptance of responsibility as mitigating factors,

the trial court also noted that Jordan showed no remorse for the robbery. When

the presentence investigator asked him about his feelings regarding the robbery,

he responded, “Indifferent. I wasn’t trying to hurt nobody.” Appellant’s App.

Vol. II at 19.

[7] Moreover, “[w]hen considering the character of the offender, one relevant fact

is the defendant’s criminal history,” and “[t]he significance of criminal history

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

the current offense.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2750 | April 27, 2017 Page 4 of 5 trans. denied. Here, Jordan’s criminal history is extensive. Over his adult life,

he has accumulated nine misdemeanor convictions and sixteen felony

convictions across eight counties in three different states. In fact, Jordan was

on parole for a prior robbery when he committed the robbery at issue in this

case. He has been given the opportunity for probation four times, but each time

his probation was revoked. Further, Jordan committed a murder to which he

pleaded guilty and for which he was sentenced simultaneously with this case.

And he has a history of substance abuse but has failed to seek substance abuse

treatment despite having been given the opportunity to do so. As the State

points out, Jordan “has essentially been committing crimes non-stop since he

turned [nineteen] years old.” Appellee’s Br. at 8. Thus, we cannot say that his

sentence is inappropriate in light of his character.

[8] Affirmed.

Riley, J., and Bradford, J., concur.

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