Zacheriah Allen Tillison v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2018
• Docket: 18A-CR-107
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 27 2018, 9:22 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court 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 Benjamin Loheide Curtis T. Hill, Jr. Law Office of Benjamin Loheide Attorney General of Indiana Columbus, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Zacheriah Allen Tillison, June 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-107 v. Appeal from the Bartholomew Circuit Court State of Indiana, The Honorable Kelly S. Benjamin, Appellee-Plaintiff Judge Trial Court Cause No. 03C01-1709-F6-5108

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-107 | June 27, 2018 Page 1 of 5 Case Summary [1] Zacheriah Tillison appeals his two-and-a-half-year sentence for resisting law

enforcement causing bodily injury, a Level 6 felony, claiming it is inappropriate

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

the trial court.

Facts and Procedural History [2] On September 16, 2017, Tillison took his daughter to a Chuck E. Cheese

restaurant in Columbus after taking an un-prescribed Klonopin. Tillison

purchased a pizza at the counter and appeared intoxicated to the restaurant

manager. The manager observed Tillison sit down in a booth with the child

and put his head down on the table. The manager brought the food to the table

and tried to wake Tillison. After the manager could not wake Tillison, she

called 911 for assistance. When police officers arrived at the restaurant to

confront Tillison, he became aggressive, and a struggle ensued. One officer

sustained a knee injury. Police took Tillison to the hospital because of his

apparent intoxication, and he was subsequently arrested. At the time of the

incident, Tillison was on probation following an April 2017 conviction for

conversion.

[3] The State charged Tillison with Count I, Level 6 felony resisting law

enforcement causing bodily injury; Count II, Level 6 felony neglect of a

dependent; and Count III, Class B misdemeanor public intoxication. The State

Court of Appeals of Indiana | Memorandum Decision 18A-CR-107 | June 27, 2018 Page 2 of 5 also filed a petition to revoke Tillison’s probation in the conversion case. In

November, Tillison pled guilty to resisting law enforcement pursuant to a plea

agreement that provided the other charges and the petition to revoke probation

would be dismissed. Tr. Vol. II p. 11. The agreement left sentencing to the

discretion of the trial court.

[4] In sentencing Tillison, the trial court identified the following aggravating

circumstances: Tillison’s prior criminal history; he was placed on probation

multiple times in the past and had violated his probation; he was on probation

at the time of this offense; and he has two outstanding warrants from other

counties. Id. at 34. The court imposed the maximum sentence of two-and-a-

half years—912 days—with 300 days executed in jail and 612 days suspended

to probation. The court also ordered that the first 120 days of Tillison’s

probation be served in jail in order for him to apply for and complete Recovery

Works, which is a re-entry program that assists individuals with substance-

abuse issues.

[5] Tillison now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-107 | June 27, 2018 Page 3 of 5 Discussion and Decision [6] Tillison argues that a maximum sentence of two-and-a-half years for his Level 6

felony is inappropriate.1 Under Indiana Appellate Rule 7(B), this Court 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. Brown v. State, 10 N.E.3d 1, 4

(Ind. 2014). A defendant has the burden of persuading this Court that his or

her sentence is inappropriate. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.

App. 2014).

[7] The sentencing range for a Level 6 felony is between six months and two-and-a-

half years (912 days), with the advisory sentence being one-and-a-half years.

Ind. Code § 35-50-2-7(b). Tillison is correct that he was given the maximum

sentence of 912 days, but only 300 days were executed and an additional 120

days were to be served in jail as part of probation. Thus, Tillison was ordered

to spend a total of 420 days in jail, less than half of the maximum sentence.

[8] Regarding the nature of Tillison’s offense, he resisted arrest in a children’s

restaurant in front of his own daughter, but his conduct was otherwise

1 In his brief, Tillison states “the appropriate standard of review for this appeal is abuse of discretion.” Appellant’s Br. p. 7. However, Tillison never develops an abuse-of-discretion argument. Instead, he only argues inappropriate sentence under Indiana Appellate Rule 7(B). Therefore, we will decide only whether Tillison’s sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-107 | June 27, 2018 Page 4 of 5 unremarkable as far as felony resisting goes. However, his character weighs

against any revision in his sentence.

[9] In his brief, Tillison claims that the court record contained information that

reflected positively on his character: he had employment waiting with one

employer and planned to pick up another job; he pled guilty, thus avoiding the

necessity of taking the matter to trial; he showed remorse for what had

happened; and he acknowledged the need for and was willing to engage in

substance-abuse treatment. Appellant’s Br. p. 9. He also claims that he was

placed in a situation not of his own doing and attempted to care for his

daughter. Id. But even if we accept these claims as true, they are significantly

overshadowed by his lengthy criminal history. Tillison has five prior felony

convictions. He also has eighteen misdemeanor convictions, which include

battery, conversion, criminal mischief, and check deception. Tillison has been

on probation eleven times, violated probation three times, and was on

probation when he committed the offense in this case. Tillison has not

reformed his criminal behavior despite being given multiple chances to better

himself. We therefore find that Tillison’s sentence is not inappropriate.

[10] Affirmed.

Pyle, J., and Barnes, Sr. J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-107 | June 27, 2018 Page 5 of 5