Tradale Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 10, 2017
• Docket: 49A04-1608-CR-1833
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 10 2017, 5:29 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tradale Jones, February 10, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1608-CR-1833 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge Trial Court Cause No. 49G03-1512-F1-43936

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 1 of 8 [1] Tradale Jones appeals the fifty-year aggregate sentence imposed for two counts

of Level 1 felony rape 1 and one count each of Level 3 felony robbery with a

deadly weapon, 2 Level 3 felony kidnapping while armed with a deadly

weapon, 3 and Level 3 felony criminal confinement while armed with a deadly

weapon. 4 Finding nothing inappropriate about his sentence, we affirm.

Facts and Procedural History [2] At approximately 3:00 a.m. on December 5, 2014, as F.B. was walking alone

from her boyfriend’s house to her own house, she was confronted by a stranger,

later identified as Jones, who was carrying a shotgun. Jones ordered F.B. to

walk up a hill between two houses. Jones put the shotgun to her back, and F.B.

complied. Jones took her between the two houses into the backyard of a house,

where a second man was waiting. Jones gave the shotgun to the second man

and removed F.B.’s jacket and pants. He felt around under her shirt looking for

possessions or money. They found and took her cell phone.

[3] Jones and the second man then forced F.B. at gunpoint to walk back between

the houses, across the street, and into a garage, where they forced F.B. to kneel

and perform oral sex on Jones and the second man. When F.B. cried, the men

1 Ind. Code § 35-42-4-1(a)(1) (2014). 2 Ind. Code § 35-42-5-1(2) (2014). 3 Ind. Code § 35-42-3-2(a) (2014). 4 Ind. Code § 35-42-3-3(a) (2014).

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 2 of 8 told her to shut up and threatened to kill her. Jones then compelled F.B. to

submit to sexual intercourse while the second man pointed the shotgun at her.

The two men left the garage after telling F.B. they would kill her if she moved

or tried to leave.

[4] F.B. waited a few minutes, put her underwear back on, and walked toward her

boyfriend’s house. An officer on patrol saw F.B. walking without pants or

shoes and crying hysterically, so he stopped to check on her. F.B. reported she

had been raped, so the officer called a detective from the sex crimes unit. The

detective took a report from F.B. and then the two of them drove to the places

F.B. described and found her pants and shoes in the backyard where they had

been removed. F.B. went to the hospital to have a sexual assault kit performed.

Samples of DNA recovered from F.B. matched the DNA of Jones.

[5] The State charged Jones with two counts of Level 1 felony rape and one count

each of Level 3 felony armed robbery, Level 3 felony kidnapping, Level 3

felony criminal confinement, and Class A misdemeanor pointing a firearm. A

jury found Jones not guilty of pointing a firearm, but guilty of the other five

charged crimes. The trial court imposed a thirty-two-year sentence for each

count of rape and ordered the two rape sentences served concurrently; imposed

nine-year sentences for each of the three Level 3 felony convictions; ordered the

nine-year sentence for criminal confinement served concurrent with the others;

and ordered the nine-year sentences for armed robbery and for kidnapping

served consecutive to each other and to the thirty-two-year rape sentence, for an

aggregate sentence of fifty years.

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 3 of 8 Discussion and Decision [6] Jones asserts his fifty-year sentence is inappropriate. We may revise a sentence

if it is inappropriate in light of the nature of the offense and the character of the

offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the

aggravators and mitigators found by the trial court, but also any other factors

appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.

2007), trans. denied. The appellant bears the burden of demonstrating his

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

[7] When considering the nature of the offense, the advisory sentence is the starting

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

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

sentencing range for a Level 1 felony is “a fixed term of between twenty (20)

and forty (40) years, with the advisory sentence being thirty (30) years.” Ind.

Code § 35-50-2-4(b) (2014). For Jones’ Level 1 felony rape convictions, the trial

court imposed concurrent thirty-two-year sentences, which are only two years

above the advisory sentence. See id. The sentencing range for a Level 3 felony

is “a fixed term of between three (3) and sixteen (16) years, with the advisory

sentence being nine (9) years.” Ind. Code § 35-50-2-5 (2014). For Jones’

convictions of Level 3 felony robbery, kidnapping, and criminal confinement,

the court imposed three nine-year sentences, which are the advisory. The court

ordered Jones’ sentences for kidnapping and robbery served consecutive to each

other and to one of the sentences for rape, for an aggregate sentence of fifty

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 4 of 8 years. Because Jones committed “crimes of violence,” see Ind. Code § 35-50-1-

2(a) (2014), his sentence for this episode of criminal conduct was not capped at

“the advisory sentence for a felony which is one (1) class of felony higher than

the most serious of the felonies for which the person has been convicted,” Ind.

Code § 35-50-1-2(d) (2014), which would have been fifty-five years. See Ind.

Code § 35-50-2-3(a) (2007) (advisory sentence for murder is fifty-five years).

Instead, the maximum sentence Jones could have received was eighty-eight

years. See, e.g., Brown v. State, 760 N.E.2d 243, 245 (Ind. Ct. App. 2002)

(maximum sentence on both charges to be served consecutively indicates a

maximum sentence), trans. denied. In light of Jones receiving a sentence for

each of his crimes that was at or barely above the advisory sentence, and in light

of Jones receiving a cumulative sentence for his episode of violent criminal

conduct that was less than the maximum he could have received for non-violent

crimes, we see nothing inappropriate about his 50-year aggregate sentence for

robbery, kidnapping, confinement, and two counts of rape, all of which were

committed with a shotgun.

[8] Jones asserts “[i]t is primarily the nature of Mr. Jones’ character . . . that

warrants a lesser sentence . . . .” (Appellant’s Br. at 17.) When considering the

character of the offender, one relevant fact is the defendant’s criminal history.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance

of a criminal history in assessing a defendant’s character varies based on the

gravity, nature, and number of prior offenses in relation to the current offense.

Id. Jones asserts his criminal history “did not distinguish him as a serious

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 5 of 8 felon.” (Appellant’s Br. at 17.) His criminal history includes a 2009 true

finding as a juvenile for an act that would have been battery resulting in bodily

injury if committed by an adult, a 2011 conviction of Class D felony criminal

recklessness, and a 2013 conviction of Class A misdemeanor criminal

conversion, and two 2015 convictions of Class A misdemeanor theft. Jones’

record included numerous other charges that had been dismissed and revealed

his placement in probation was revoked in 2011 and his placement in

community corrections was revoked in 2015. With regard to Jones’ criminal

history, the trial court noted:

[A]lthough the convictions are not for serious felonies, what I can tell from your criminal history is that you don’t have a problem, even as a juvenile, hurting another person, and you certainly don’t have a problem taking things that aren’t yours.

And then finally, I see from your criminal history that you did have opportunities to rehabilitate yourself through both probation and Community Corrections. And neither of those you took advantage because both of those placements had to be revoked.

(Tr. Vol. III at 58.)

[9] Jones also asserts his sentence is inappropriate for his character because he

expressed remorse before trial, loves his children, is only twenty-two years old,

and had a “miserable upbringing.” (Br. of Appellant at 17.) We cannot say

Jones’ love for his children justifies a shorter sentence when Jones does not

provide any financial support for those children. We acknowledge Jones’

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 6 of 8 report that his parents did not raise him because they were addicted to drugs;

however, he also reported he was raised by his grandmother and aunt, and

“was never the victim of any type of abuse or neglect,” (App. Vol III at 9); both

his grandmother and aunt still provide financial support to him and allow him

to stay with them; and he has a family that loves him. While his childhood

may not have been ideal, neither does the evidence demand it be characterized

as “miserable.” (Br. of Appellant at 17.)

[10] Jones did express remorse when he was interviewed by a detective before trial

but, after being convicted by a jury, he told the probation officer preparing the

presentence investigation report that he “payed [F.B.] for sex and she said I

raped her.” (App. Vol. III at 12.) If Jones does not accept responsibility for

commission of these egregious crimes, we doubt he could feel sincere remorse.

See, e.g., Hape v. State, 903 N.E.2d 977, 1003 (Ind. Ct. App. 2009) (defendant’s

“expression of remorse is belied by his subsequent attempts to blame others for

his situation”), trans. denied.

[11] As for Jones being only twenty years old when he committed these offenses, we

agree with the trial court that it is “concerning . . . that [Jones] could commit

such a serious offense at such a young age.” (Tr. Vol. II at 62.) A defendant’s

young age can be a mitigator. See Coleman v. State, 952 N.E.2d 377, 385 (Ind.

Ct. App. 2011). However, a defendant must be not only young but also

“clueless” or “led astray by a more commanding older person,” id., and that is

not what happened here. The testimony and other evidence indicate Jones

initiated and led this crime spree – he alone stopped F.B., he ordered her up the

Court of Appeals of Indiana | Memorandum Decision 49A04-1608-CR-1833 | February 10, 2017 Page 7 of 8 hill and put a shotgun to her back, he took her clothes off of her and searched

her, he pulled her by her hair to another location, he grabbed her head with his

hands and forced her to perform oral sex on him, he threatened to kill her if she

did not stop crying, and he raped her. Jones may have been only twenty years

old when he committed these crimes, but his behavior was that of a man who is

an experienced criminal. Id.

[12] Jones has not convinced us that his character makes a fifty-year sentence

inappropriate for the episode of criminal conduct he committed. See Corbally v.

State, 5 N.E.3d 463, 472-73 (Ind. Ct. App. 2014) (reviewing lengths of sentences

given for commission of “a single episode of sexual violence against one

victim” and reducing Corbally’s sentence from 270 years to 165 years).

Conclusion [13] Nothing about Jones’ character or offenses leads us to believe his fifty-year

sentence is inappropriate. We accordingly affirm.

[14] Affirmed.

Najam, J., and Bailey, J., concur.

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