MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2018, 8:32 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Thomas Barry, January 30, 2018 Appellant-Defendant, Court of Appeals Case No. 79A02-1709-CR-2074 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause Nos. 79D02-1611-F5-154 79D02-1612-F6-1071
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 1 of 6 Statement of the Case [1] Scott Thomas Barry appeals his sentence following his convictions for two
counts of battery, as Level 6 felonies, and his adjudication as a habitual
offender pursuant to a guilty plea. Barry presents a single issue for our review,
namely, whether his sentence is inappropriate in light of the nature of the
offenses and his character. We affirm.
Facts and Procedural History [2] On November 2, 2016, while incarcerated in the Tippecanoe County Jail, Barry
spat on two corrections officers. Accordingly, on November 10, the State
charged Barry with three counts of battery, as Level 5 felonies, under Cause
Number 79D02-1611-F5-154 (“No. F5-154”). In particular, the State alleged
that Barry, knowing he has hepatitis C, placed his bodily waste on the
corrections officers, which, if proven, would be Level 5 felonies under Indiana
Code Section 35-42-2-1(h) (2017). Then, on November 23, while still
incarcerated, Barry spat on a third corrections officer. The State charged Barry
with one count of battery, as a Level 6 felony, under Cause Number 79D02-
1612-F6-1071 (“No. F6-1071”).
[3] On June 23, 2017, Barry pleaded guilty but mentally ill to one count of battery,
as a Level 6 felony, and he admitted to being a habitual offender in No. F5-154.
Barry also pleaded guilty but mentally ill to battery, as a Level 6 felony, in No.
F6-1071. In exchange for his pleas, the State dismissed the remaining counts in
F5-154, as well as charges in three additional causes. Barry’s plea agreement
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 2 of 6 provided that his sentences would run consecutively, but otherwise left
sentencing to the trial court’s discretion. Following a guilty plea hearing, the
trial court sentenced Barry to seven years executed in F5-154 and two years,
with one year suspended to probation, in F6-1071, for a total aggregate sentence
of nine years, with one year suspended to probation. This appeal ensued.
Discussion and Decision [4] Barry contends that his sentence is inappropriate in light of the nature of the
offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” We assess the trial court’s recognition or nonrecognition 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). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[5] Here, the trial court identified the following aggravating factors when it
imposed the sentences: Barry’s criminal history, which includes eight felonies
and six misdemeanors, as well as a history of juvenile adjudications; the fact
that he was on probation and incarcerated at the time of the instant offenses;
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 3 of 6 the repetitive nature of the offenses; and prior attempts at rehabilitation have
failed. The trial court identified the following mitigating circumstances:
Barry’s mental illness; his guilty plea and acceptance of responsibility; and his
difficult childhood and adult life. The court found that the aggravators
outweighed the mitigators.
[6] The sentencing range for a Level 6 felony is six months to two and one-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. And
Indiana Code Section 35-50-2-8 (2015) provides that the court shall sentence a
person convicted of a Level 6 felony and found to be a habitual offender to an
additional fixed term that is between two and six years. Accordingly, the trial
court imposed a five-year sentence with an additional two-year sentence for the
habitual offender adjudication in No. F5-154 and ordered that sentence to run
consecutive to the two-year sentence, with one year suspended to probation, in
No. F6-1071. Thus, the court imposed an aggregate term of nine years, with
one year suspended to probation.
[7] Barry asserts that his sentence is inappropriate in light of the nature of the
offenses because the bodily waste involved was saliva and not urine or fecal
matter and, while he is infected with hepatitis C, it is, as the State conceded,
difficult to transmit hepatitis C through saliva. Barry also maintains that the
battery alleged in No. F6-1071 did not involve “conduct beyond that necessary
to establish the essential elements of that offense.” Appellant’s Br. at 7. But the
State points out that Barry spit into one of the officer’s eyes and said, “I hope
you have fun with Hep C.” Appellant’s App. Vol. 2 at 63. And, at that time,
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 4 of 6 Barry expressed his intention to spit on all of the corrections officers at the jail.
We cannot say that Barry’s sentence is inappropriate in light of the nature of the
offenses given his express desire to transmit hepatitis C to the corrections
officers.
[8] Barry also maintains that his sentence is inappropriate in light of his character.
He “concedes that he has had a number of prior contacts with the criminal
justice system, both as a juvenile and as an adult.” Appellant’s Br. at 7. But
Barry asserts that “the significance of his criminal history is somewhat
diminished because a number of his prior convictions are already embodied in
the habitual offender count.” Id. at 8. And he states that all of his prior
convictions “are for either misdemeanor, Class D[,] or Level 6 felonies.” Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2018, 8:32 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Thomas Barry, January 30, 2018 Appellant-Defendant, Court of Appeals Case No. 79A02-1709-CR-2074 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff. Judge Trial Court Cause Nos. 79D02-1611-F5-154 79D02-1612-F6-1071
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 1 of 6 Statement of the Case [1] Scott Thomas Barry appeals his sentence following his convictions for two
counts of battery, as Level 6 felonies, and his adjudication as a habitual
offender pursuant to a guilty plea. Barry presents a single issue for our review,
namely, whether his sentence is inappropriate in light of the nature of the
offenses and his character. We affirm.
Facts and Procedural History [2] On November 2, 2016, while incarcerated in the Tippecanoe County Jail, Barry
spat on two corrections officers. Accordingly, on November 10, the State
charged Barry with three counts of battery, as Level 5 felonies, under Cause
Number 79D02-1611-F5-154 (“No. F5-154”). In particular, the State alleged
that Barry, knowing he has hepatitis C, placed his bodily waste on the
corrections officers, which, if proven, would be Level 5 felonies under Indiana
Code Section 35-42-2-1(h) (2017). Then, on November 23, while still
incarcerated, Barry spat on a third corrections officer. The State charged Barry
with one count of battery, as a Level 6 felony, under Cause Number 79D02-
1612-F6-1071 (“No. F6-1071”).
[3] On June 23, 2017, Barry pleaded guilty but mentally ill to one count of battery,
as a Level 6 felony, and he admitted to being a habitual offender in No. F5-154.
Barry also pleaded guilty but mentally ill to battery, as a Level 6 felony, in No.
F6-1071. In exchange for his pleas, the State dismissed the remaining counts in
F5-154, as well as charges in three additional causes. Barry’s plea agreement
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 2 of 6 provided that his sentences would run consecutively, but otherwise left
sentencing to the trial court’s discretion. Following a guilty plea hearing, the
trial court sentenced Barry to seven years executed in F5-154 and two years,
with one year suspended to probation, in F6-1071, for a total aggregate sentence
of nine years, with one year suspended to probation. This appeal ensued.
Discussion and Decision [4] Barry contends that his sentence is inappropriate in light of the nature of the
offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” We assess the trial court’s recognition or nonrecognition 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). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[5] Here, the trial court identified the following aggravating factors when it
imposed the sentences: Barry’s criminal history, which includes eight felonies
and six misdemeanors, as well as a history of juvenile adjudications; the fact
that he was on probation and incarcerated at the time of the instant offenses;
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 3 of 6 the repetitive nature of the offenses; and prior attempts at rehabilitation have
failed. The trial court identified the following mitigating circumstances:
Barry’s mental illness; his guilty plea and acceptance of responsibility; and his
difficult childhood and adult life. The court found that the aggravators
outweighed the mitigators.
[6] The sentencing range for a Level 6 felony is six months to two and one-half
years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. And
Indiana Code Section 35-50-2-8 (2015) provides that the court shall sentence a
person convicted of a Level 6 felony and found to be a habitual offender to an
additional fixed term that is between two and six years. Accordingly, the trial
court imposed a five-year sentence with an additional two-year sentence for the
habitual offender adjudication in No. F5-154 and ordered that sentence to run
consecutive to the two-year sentence, with one year suspended to probation, in
No. F6-1071. Thus, the court imposed an aggregate term of nine years, with
one year suspended to probation.
[7] Barry asserts that his sentence is inappropriate in light of the nature of the
offenses because the bodily waste involved was saliva and not urine or fecal
matter and, while he is infected with hepatitis C, it is, as the State conceded,
difficult to transmit hepatitis C through saliva. Barry also maintains that the
battery alleged in No. F6-1071 did not involve “conduct beyond that necessary
to establish the essential elements of that offense.” Appellant’s Br. at 7. But the
State points out that Barry spit into one of the officer’s eyes and said, “I hope
you have fun with Hep C.” Appellant’s App. Vol. 2 at 63. And, at that time,
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 4 of 6 Barry expressed his intention to spit on all of the corrections officers at the jail.
We cannot say that Barry’s sentence is inappropriate in light of the nature of the
offenses given his express desire to transmit hepatitis C to the corrections
officers.
[8] Barry also maintains that his sentence is inappropriate in light of his character.
He “concedes that he has had a number of prior contacts with the criminal
justice system, both as a juvenile and as an adult.” Appellant’s Br. at 7. But
Barry asserts that “the significance of his criminal history is somewhat
diminished because a number of his prior convictions are already embodied in
the habitual offender count.” Id. at 8. And he states that all of his prior
convictions “are for either misdemeanor, Class D[,] or Level 6 felonies.” Id.
Also, while not alleging that the trial court abused its discretion at sentencing,
Barry contends that “the remaining aggravating factors identified by the trial
court are essentially extensions of his criminal history.” Id. Finally, Barry
urges us to give “considerable mitigating weight” to his long history of mental
illness. Id. at 10.
[9] But, as the State points out, Barry’s criminal history is both extensive and
diverse. His juvenile history dates back to 1997, and his adult criminal history
began in 2008. Barry’s misdemeanor convictions include conversion, public
intoxication, driving while license suspended, and battery. And his prior felony
convictions include strangulation, four thefts, automobile theft, unlawful
possession or use of a legend drug or precursor, and battery by bodily waste. In
addition, the State has previously filed thirty-three petitions to revoke Barry’s
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 5 of 6 probation, and there were twelve such petitions pending at the time of
sentencing in this case. Barry was on probation and incarcerated at the time of
the instant offenses. The trial court gave Barry’s mental illness mitigating
weight at sentencing, and we cannot say that, given the nature and extent of
Barry’s criminal history, his mental illness deserves even more mitigating
weight.1 We hold that Barry’s sentence is not inappropriate in light of his
character.
[10] Affirmed.
Mathias, J., and Barnes, J., concur.
1 To the extent Barry asks us to reweigh the aggravators and mitigators on appeal, that we cannot do. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 79A02-1709-CR-2074 | January 30, 2018 Page 6 of 6