Thomas Downey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 8, 2018
• Docket: 39A04-1709-CR-2167
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 08 2018, 6:12 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James C. Spencer Curtis T. Hill, Jr. Dattilo Law Office Attorney General of Indiana Madison, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Downey, February 8, 2018 Appellant-Defendant, Court of Appeals Case No. 39A04-1709-CR-2167 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Michael J. Appellee-Plaintiff. Hensley, Judge Trial Court Cause Nos. 39D01-1608-F5-712, 39D01-1701- CM-4, 39D01-1704-CM-326

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 1 of 10 Case Summary [1] In August of 2016, Appellant-Defendant Thomas Downey was charged with a

number of criminal offenses. On June 14, 2017, the trial court conducted a

joint guilty plea and sentencing hearing.1 During this hearing, Downey pled

guilty to Level 5 felony criminal confinement, Level 6 felony battery against a

public safety official, Class A misdemeanor battery resulting in bodily injury,

Class A misdemeanor interference with reporting a crime, and Class A

misdemeanor resisting law enforcement. The trial court accepted Downey’s

guilty plea and sentenced Downey to an aggregate three-year term with two

years and three months executed and the remaining nine months suspended to

probation. Recognizing that Downey’s mental state likely contributed to his

criminal behavior, the trial court recommended that the executed portion of

Downey’s sentence be served in the New Castle Correctional Facility so that

Downey could receive mental health treatment during his term of incarceration.

On appeal, Downey contends that his aggregate three-year sentence is

inappropriate. We affirm.

1 Three separate cause numbers were heard together during Downey’s guilty plea and sentencing hearing. These cause numbers include 39D01-1608-F5-712 (“Cause No. F5-712”), 39D01-1701-CM-4 (“Cause No. CM-4”), and 39D01-1704-CM-326 (“Cause No. CM-326”). Downey’s contentions on appeal relate only to Cause No. F5-712. Downey makes no argument regarding the facts supporting his guilty pleas to or the sentences imposed in either Cause No. CM-4 or Cause No. CM-326. As such, we will limit our discussion to those facts which relate to Cause No. F5-712.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 2 of 10 Facts and Procedural History2 [2] Prior to the dates in question, Downey was diagnosed with schizophrenia. At

the time of his arrest, Downey lived with his mother, Pamela Hicks. Hicks had

experience dealing with schizophrenics given her long-term employment as a

registered nurse at Madison State Hospital. Hicks testified that when taking the

medication prescribed to treat his condition, Downey was “[n]inety percent

good.” Tr. Vol. II, p. 21. However, when not taking his medication “he’s

horrible, very delusional, thinks things are a certain way and they’re not, just

[does] all kinds of things that he should not be doing.” Tr. Vol. II, p. 21. Over

time, Hicks had become skilled at calming and controlling Downey’s behavior

when he suffered an episode related to his mental condition. However, in the

year leading up to August of 2016, Downey had stopped taking his medication.

As a result, he was no longer responsive to Hicks’s efforts. Downey’s mental

condition was exacerbated by both his refusal to take his medication and his

abuse of drugs and alcohol.

[3] Downey had been drinking alcohol during the evening hours of August 4, 2016,

and early morning hours of August 5, 2016. At approximately 1:30 a.m. on

August 5, 2016, Hicks asked Downey to quiet down. When Downey refused,

2 The factual basis provided to the trial court during the guilty plea hearing included only a basic factual overview and lacked the details necessary to provide context to the reader. Therefore, to the extent necessary, we will rely on Hicks’s testimony during the sentencing phase of the June 14, 2017 joint guilty plea and sentencing hearing and information contained in the probable cause affidavit filed in the underlying case to provide context to the readers.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 3 of 10 Hicks called 911. In an attempt to keep Hicks from calling 911, Downey

grabbed her by the wrist and pushed her down onto a couch. Downey then

confined her to the couch. As a result of Downey’s actions, Hicks suffered

pain, bruising, and swelling in her wrist.

[4] After arriving at Hicks’s home and observing Downey, responding officers

came to believe that Downey should be taken to the hospital for evaluation.

Downey refused to go to the hospital, telling the responding officers that he

“just wanted to stay at home and drink his beer.” Appellant’s App. Vol. II, p.

27. At some point, however, Downey attempted to leave the residence. As he

did so, he approached a police officer who was standing in the doorway. In an

attempt to get by the officer, Downey “grabbed [the officer’s] right wrist” and

pulled his arm. Tr. Vol. II, p. 11. Downey also scuffled with other officers as

they attempted to restrain him. Eventually, Downey was placed under arrest.

[5] On August 5, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged

Downey under Cause No. F5-712 with Level 5 felony criminal confinement,

Level 6 felony battery against a public safety official, Class A misdemeanor

battery resulting in bodily injury, Class A misdemeanor interference with

reporting a crime, and Class A misdemeanor resisting law enforcement.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 4 of 10 Downey was subsequently released on bond while awaiting trial and was

ordered to have no contact with Hicks.3

[6] Meanwhile, in Cause Nos. CM-4 and CM-326, the State had charged Downey

with Class A misdemeanor invasion of privacy and Class B misdemeanor

public intoxication. Downey subsequently indicated that he wished to plead

guilty to all of the charges contained in Cause Nos. F5-712, CM-4, and CM-

326. The trial court conducted a joint guilty plea and sentencing hearing on

June 14, 2017. During this hearing, the trial court found the factual basis to be

sufficient and accepted Downey’s guilty pleas.

[7] During the sentencing phase of the hearing, Downey indicated that prior to

sentencing, he had been placed at the New Castle Correctional Facility. While

at the New Castle Correctional Facility, Downey received treatment for his

mental health issues and became compliant with his medication. Downey

further indicated during sentencing that he believed his placement at the New

Castle Correction facility had “helped” him. Tr. Vol. II, p. 17. Also during the

sentencing phase of the hearing, Hicks indicated that she believed Downey

required treatment for his mental condition as well has his drug and alcohol

abuse. She further indicated that Downey would no longer be welcome to live

3 The State subsequently filed a motion to revoke Downey’s bail. It appears that this motion was granted as Downey was in custody as of the date of the joint guilty plea and sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 5 of 10 with her because while she loves her son “very much,” she “just cannot deal

with this anymore.” Tr. Vol. II, p. 23.

[8] Following the hearing, the trial court issued an order in which it accepted

Downey’s guilty pleas and sentenced Downey. The trial court sentenced

Downey to time served in both Cause No. CM-4 and CM-326. In Cause No.

F5-712, the trial court sentenced Downey to an aggregate three-year term with

two years and three months executed and the remaining nine months

suspended to probation. In sentencing Downey, the trial court recommended

that Downey “be placed at the New Castle Correctional Facility and receive

mental health treatment during the term of his incarceration.” Appellant’s

App. Vol. III, p. 16.

Discussion and Decision4 [9] Downey contends that the three-year sentence imposed in Cause No. F5-712 is

inappropriate in light of the nature of his offenses and his character. Indiana

Appellate Rule 7(B) provides that “The Court may 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.” In analyzing such claims, we “‘concentrate less on

4 We note that while Downey introduces his contention on appeal as whether the trial court abused its discretion in sentencing him, his entire argument relates to whether his sentence is inappropriate. We will therefore consider Downey’s challenge on appeal as an appropriateness challenge rather than an abuse of discretion challenge.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 6 of 10 comparing the facts of [the case at issue] to others, whether real or hypothetical,

and more on focusing on the nature, extent, and depravity of the offense for

which the defendant is being sentenced, and what it reveals about the

defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

(quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied).

The defendant bears the burden of persuading us that his sentence is

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[10] With respect to the nature of Downey’s offenses, the record reveals that

Downey battered his own mother, causing injuries to her wrist. He also

confined her to the couch in an attempt to stop her from calling 911. Once

officers arrived at the residence, Downey grabbed one of the responding officers

by the wrist and attempted to pull the officer away from his position by the

door. Downey continued to demonstrate combative behavior by scuffling with

several officers as they attempted to place him in restraints.

[11] As for his character, the record reveals that Downey has a criminal history

which includes both felony and misdemeanor convictions. Downey’s criminal

history includes felony convictions for possession of a schedule I, II, III, or IV

controlled substance; intimidation; and possession of two or more precursors

for the manufacture of methamphetamine. It includes misdemeanor

convictions for possession of marijuana, illegal possession of an alcoholic

beverage, operating a vehicle while intoxicated, illegal consumption of an

alcoholic beverage, and check deception.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 7 of 10 [12] The record also reveals that Downey is either unwilling or unable to follow

both (1) the laws of this state and (2) rules and procedures aimed at

rehabilitation. Downey was released on bond when he committed the charges

filed under Cause Nos. CM-4 and CM-326. In addition, documents detailing

Downey’s criminal history reveal that while he has previously been placed on

probation, he has, on numerous occasions, committed violations of the terms of

his probation. Further, the Indiana Risk Assessment System–Static Tool

indicates that Downey is “in the VERY HIGH risk category to reoffend.”

Appellant’s App. Vol. IV–Confidential, p. 10.

[13] Furthermore, to the extent that Downey argues that his sentence is

inappropriate merely because he was ordered to serve an executed portion in

the Department of Correction (“DOC”) as opposed to Community Corrections,

we disagree.

The location where a sentence is to be served is an appropriate focus for application of our review and revise authority. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). It is not, however, subject to review for abuse of discretion. See id. Nonetheless, we note that it will be quite difficult for a defendant to prevail on a claim that the placement of his sentence is inappropriate. Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct. App. 2007). This is because the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate. Id. at 344. A defendant challenging the placement of a sentence must convince us that the given placement is itself inappropriate. Id. As a practical matter, trial courts know the feasibility of alternative placements in particular counties or communities. Id. at 343. For example, a court is aware of the availability, costs,

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 8 of 10 and entrance requirements of community corrections placements in a specific locale. Id. at 343–44.

King v. State, 894 N.E.2d 265, 267–68 (Ind. Ct. App. 2008).

[14] In the instant matter, the trial court recognized that Downey’s mental state

likely contributed to his criminal behavior, finding his mental illness to be a

mitigating factor during sentencing. Also, in ordering that two years and three

months of Downey’s three-year sentence be executed in DOC, the trial court

recommended that Downey be placed at the New Castle Correctional Facility

so that Downey could receive mental health treatment during his term of

incarceration. Downey does not specify what treatment he requires that is not

available through DOC. Further, the record reveals that Downey had been

placed in the New Castle Correctional Facility while awaiting sentencing and

that as of the date of sentencing, Downey was compliant with his medication

and his mental state seemed to have stabilized.

[15] Again, Downey bears the burden of persuading us that his sentence is

inappropriate. Sanchez, 891 N.E.2d at 176. Upon review, we conclude that

Downey has failed to convince us that his three-year sentence is inappropriate

in light of the nature of his offenses and his character. Downey has also failed

to convince us that his placement in DOC is inappropriate. As such, we affirm

the judgment of the trial court.

[16] The judgment of the trial court is affirmed.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 9 of 10 Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A04-1709-CR-2167 | February 8, 2018 Page 10 of 10