MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2017, 10:17 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Hesiben, May 31, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1609-CR-2223 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1508-F6-586
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 1 of 7 [1] Tony Hesiben appeals his sentence for escape as a level 6 felony. Hesiben raises
one issue which we revise and restate as whether his sentence is inappropriate
in light of the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On December 22, 2014, Hesiben violated a home detention order by cutting off
an electronic device on his ankle within a month of the court’s order. On
August 26, 2015, the State charged Hesiben with escape as a level 6 felony in
cause number 71D08-1508-F6-586 (“Cause No. 586”). On August 26, 2015,
the court entered an order waiving juvenile jurisdiction to the Superior Court of
St. Joseph County.
[3] On July 19, 2016, the court held a guilty plea hearing at which Hesiben pled
guilty without a plea agreement in Cause No. 586 as well as to robbery resulting
in serious bodily injury as a level 2 felony under cause number 71D08-1511-F3-
60 (“Cause No. 60”) relating to an incident that occurred on May 8, 2015.
[4] On September 1, 2016, the court held a consolidated sentencing hearing in
Cause No 60 and Cause No. 586. Beverly Dempsey, Hesiben’s aunt, testified
that he “is a good kid” and she thought that “he just got caught up with the
wrong people.” Sentencing Transcript at 2. She testified that Hesiben’s father
had a nervous breakdown and a stroke. Dianne Walker, Hesiben’s mother,
testified that she was a single mother and that Hesiben had emotional disability
problems. Hesiben stated:
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 2 of 7 I just wanted to apologize to the victim and I just want to say sorry for what happened and I wish I could take it back but, you know, I can’t take it back so I just wanted to, you know what I’m saying, apologize one more time. And I just, you know what I’m saying, ask can you at least leave me a little bit of life left to live, you know with my family. And since I’ve been here, you know, I done changed a lot, you know, you know what I’m saying, since that happened. And I just want to apologize again.
Id. at 11. The probation officer that completed the presentence investigation
report (“PSI”) recommended a sentence of two years to be served consecutive
to the sentence in cause number 71D02-1507-F3-36 (“Cause No. 36”), which
involved robbery.
[5] The court recognized Hesiben’s age and took that into consideration. It stated
that Hesiben had made “consistently horrible decisions through much of your
life, the young life that you’ve lived up ‘til now.” Id. at 12. The court observed
that Hesiben had been given opportunities to rehabilitate in the juvenile system.
Specifically, it stated:
I mean from probation to placement at the JJC to home detention to boys school to I mean just every possible rehabilitative effort that could have been – that could have happened while you were in the juvenile system happened, and your decision was to cut your monitor off and to just walk away instead of availing yourself and taking advantage of the opportunities that were given to you while you were involved in that system.
Id. The court observed that Hesiben committed the crime of escape and then
committed two separate armed robberies, one of which resulted in significant
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 3 of 7 injury to Mr. Streeter who was permanently disabled “because of what
[Hesiben] did.” Id. at 13. The court also noted Hesiben’s criminal history and
the “escalation of behavior that just keeps getting worse and worse and more
violent and more dangerous.” Id. It then stated that it found Hesiben’s age and
guilty plea as mitigating factors. The court found the following aggravators: the
harm that resulted from the robbery was far greater than what would have been
needed to prove if it had gone to trial; the fact that he was serving a placement
sentence on home detention as an aggravating factor; and his juvenile history.
[6] The court sentenced Hesiben to one year suspended in Cause No. 586,
seventeen and one-half years executed in Cause No. 60, and ordered that the
sentences be served consecutive to the sentence in Cause No. 36 for which he
had previously received a sentence of ten years with five years suspended and
two years of probation.
Discussion
[7] The issue is whether Hesiben’s sentence is inappropriate in light of the nature of
the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 4 of 7 [8] Hesiben argues that the trial court focused chiefly on discussing the facts and
circumstances of other events to which he pled guilty. He asserts that it is
significant that he apparently was receiving special education services due to a
diagnosis of ADHD and emotional disability. He states that he last had contact
with his father when he was eleven years old, his mother and maternal uncle
have criminal records, he completed only the eleventh grade before he was
expelled, he desires to obtain his high school diploma, and he used marijuana
every day after first trying it at the age of fourteen and used it on the day of the
offense. The State argues that the suspended advisory sentence is not
inappropriate.
[9] Our review of the nature of the offense reveals that Hesiben violated a home
detention order by cutting off the electronic device on his ankle within a month
of the court’s order.
[10] Our review of the character of the offender reveals that Hesiben was born on
November 3, 1997. He pled guilty without a plea agreement. As a juvenile, he
was charged with a curfew violation in 2011, two counts of leaving home
without permission of a parent, guardian, or custodian in 2012, and battery as a
class B misdemeanor if committed by an adult in 2012. In August 2012, he was
placed on probation for disorderly conduct as a class B misdemeanor if
committed by an adult. In October 2012, a verified petition for modification
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2017, 10:17 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Hesiben, May 31, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1609-CR-2223 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1508-F6-586
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 1 of 7 [1] Tony Hesiben appeals his sentence for escape as a level 6 felony. Hesiben raises
one issue which we revise and restate as whether his sentence is inappropriate
in light of the nature of the offense and his character. We affirm.
Facts and Procedural History
[2] On December 22, 2014, Hesiben violated a home detention order by cutting off
an electronic device on his ankle within a month of the court’s order. On
August 26, 2015, the State charged Hesiben with escape as a level 6 felony in
cause number 71D08-1508-F6-586 (“Cause No. 586”). On August 26, 2015,
the court entered an order waiving juvenile jurisdiction to the Superior Court of
St. Joseph County.
[3] On July 19, 2016, the court held a guilty plea hearing at which Hesiben pled
guilty without a plea agreement in Cause No. 586 as well as to robbery resulting
in serious bodily injury as a level 2 felony under cause number 71D08-1511-F3-
60 (“Cause No. 60”) relating to an incident that occurred on May 8, 2015.
[4] On September 1, 2016, the court held a consolidated sentencing hearing in
Cause No 60 and Cause No. 586. Beverly Dempsey, Hesiben’s aunt, testified
that he “is a good kid” and she thought that “he just got caught up with the
wrong people.” Sentencing Transcript at 2. She testified that Hesiben’s father
had a nervous breakdown and a stroke. Dianne Walker, Hesiben’s mother,
testified that she was a single mother and that Hesiben had emotional disability
problems. Hesiben stated:
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 2 of 7 I just wanted to apologize to the victim and I just want to say sorry for what happened and I wish I could take it back but, you know, I can’t take it back so I just wanted to, you know what I’m saying, apologize one more time. And I just, you know what I’m saying, ask can you at least leave me a little bit of life left to live, you know with my family. And since I’ve been here, you know, I done changed a lot, you know, you know what I’m saying, since that happened. And I just want to apologize again.
Id. at 11. The probation officer that completed the presentence investigation
report (“PSI”) recommended a sentence of two years to be served consecutive
to the sentence in cause number 71D02-1507-F3-36 (“Cause No. 36”), which
involved robbery.
[5] The court recognized Hesiben’s age and took that into consideration. It stated
that Hesiben had made “consistently horrible decisions through much of your
life, the young life that you’ve lived up ‘til now.” Id. at 12. The court observed
that Hesiben had been given opportunities to rehabilitate in the juvenile system.
Specifically, it stated:
I mean from probation to placement at the JJC to home detention to boys school to I mean just every possible rehabilitative effort that could have been – that could have happened while you were in the juvenile system happened, and your decision was to cut your monitor off and to just walk away instead of availing yourself and taking advantage of the opportunities that were given to you while you were involved in that system.
Id. The court observed that Hesiben committed the crime of escape and then
committed two separate armed robberies, one of which resulted in significant
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 3 of 7 injury to Mr. Streeter who was permanently disabled “because of what
[Hesiben] did.” Id. at 13. The court also noted Hesiben’s criminal history and
the “escalation of behavior that just keeps getting worse and worse and more
violent and more dangerous.” Id. It then stated that it found Hesiben’s age and
guilty plea as mitigating factors. The court found the following aggravators: the
harm that resulted from the robbery was far greater than what would have been
needed to prove if it had gone to trial; the fact that he was serving a placement
sentence on home detention as an aggravating factor; and his juvenile history.
[6] The court sentenced Hesiben to one year suspended in Cause No. 586,
seventeen and one-half years executed in Cause No. 60, and ordered that the
sentences be served consecutive to the sentence in Cause No. 36 for which he
had previously received a sentence of ten years with five years suspended and
two years of probation.
Discussion
[7] The issue is whether Hesiben’s sentence is inappropriate in light of the nature of
the offense and his character. Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 4 of 7 [8] Hesiben argues that the trial court focused chiefly on discussing the facts and
circumstances of other events to which he pled guilty. He asserts that it is
significant that he apparently was receiving special education services due to a
diagnosis of ADHD and emotional disability. He states that he last had contact
with his father when he was eleven years old, his mother and maternal uncle
have criminal records, he completed only the eleventh grade before he was
expelled, he desires to obtain his high school diploma, and he used marijuana
every day after first trying it at the age of fourteen and used it on the day of the
offense. The State argues that the suspended advisory sentence is not
inappropriate.
[9] Our review of the nature of the offense reveals that Hesiben violated a home
detention order by cutting off the electronic device on his ankle within a month
of the court’s order.
[10] Our review of the character of the offender reveals that Hesiben was born on
November 3, 1997. He pled guilty without a plea agreement. As a juvenile, he
was charged with a curfew violation in 2011, two counts of leaving home
without permission of a parent, guardian, or custodian in 2012, and battery as a
class B misdemeanor if committed by an adult in 2012. In August 2012, he was
placed on probation for disorderly conduct as a class B misdemeanor if
committed by an adult. In October 2012, a verified petition for modification
was filed due to his refusal to participate in counseling, continued
insubordination, disruptive behavior, and refusal to visit the office for a drug
screen. The court ordered that Hesiben remain in secure custody at the
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 5 of 7 Juvenile Justice Center, the petition for modification was dismissed, and
Hesiben failed formal probation.
[11] In October 2012, Hesiben was charged with robbery resulting in bodily injury
and burglary as class B felonies if committed by an adult. The PSI indicates
that the court ordered Hesiben to be transported to the Indiana Boys School on
the allegation of burglary as a class B felony, and the charge of robbery resulting
in bodily injury was dismissed with prejudice. In June 2014, Hesiben was
arrested for leaving home without permission of a parent, guardian, or
custodian. In November 2014, he was placed on probation for resisting law
enforcement as a class A misdemeanor if committed by an adult. In July 2015,
he failed formal probation.
[12] After committing the present offense of escape in December 2014, the State
charged him in July 2015 under Cause No. 36 with robbery as a level 3 felony
related to an offense occurring in April 2015. Under Cause No. 60, the State
charged Hesiben in November 2015 with robbery resulting in serious bodily
injury related to an offense in May 2015, and Hesiben pled guilty.
[13] Hesiben reported that his father has been in a nursing home after having a
stroke when Hesiben was eleven years old, and that he was suspended and
expelled from school for arguing with teachers. He reported using four “blunts”
of marijuana a day and that he was supposed to participate in treatment at the
Juvenile Justice Center in the past but “didn’t go.” Id.
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 6 of 7 [14] After due consideration, we conclude that Hesiben has not sustained his burden
of establishing that his suspended sentence of one year is inappropriate in light
of the nature of the offense and his character.
Conclusion
[15] For the foregoing reasons, we affirm Hesiben’s sentence.
[16] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A05-1609-CR-2223 | May 31, 2017 Page 7 of 7