Paul E. Reese Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 13 2018, 10:21 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
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul E. Reese Jr., June 13, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-37
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Helen Marchal,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G15-1704-F6-13121
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-37 | June 13, 2018 Page 1 of 7
Case Summary
[1] Paul E. Reese, Jr., appeals his one and one-half year sentence for Level 6 felony
resisting law enforcement by fleeing in a vehicle. We affirm.
Issue
[2] The sole issue before us is whether Reese’s sentence is inappropriate in light of
the nature of his offense and his character.
Facts
[3] On April 9, 2017, at approximately 6:40 P.M., Indianapolis Metropolitan
Police Department (“IMPD”) Officer Corey Mims was on duty patrolling the
3800 block of Fletcher Avenue in Indianapolis. He was in full uniform,
wearing his police badge, and driving his IMPD squad car—equipped with a
siren, red and blue lights, and IMPD insignia. He was dispatched to respond to
a complaint regarding activities at the house located at 3835 Spann Avenue
(“the house”), where Reese resided. The caller complained of multiple people
on ATVs and dirt bikes “rolling up and down the street, running stop signs
where there were kids visibly playing.” Tr. Vol. II p. 24; App. Vol. II p. 16.
Officer Mims later testified that
you can ride a dirt bike [or ATV] but it has to be plated and it has
to have proper headlights, taillights, turn signals and things like
that on it. If [it doesn’t, it is] in violation [and one] can’t operate
[it] on the roadway.
Tr. Vol. II p. 26.
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[4] When he arrived at the scene, Officer Mims did not observe any ATVs or dirt
bikes in the street. In the alley immediately behind the house, Officer Mims
encountered Reese, who was wearing a black long-sleeved shirt and blue jeans.
The garage of the house was open, and Officer Mims observed ATVs “and
things like that inside the garage.” Id. at 27. A second man was with Reese
and wore a red sweatshirt and jeans. Officer Mims exited his squad car and
“advised Reese of the complaint . . . .” Id.
[5] At approximately 8:00 P.M., Officer Mims received a second dispatch
regarding the house—again complaining of “ATV’s racing up and down the
roadway, running stop signs . . . so that [the callers] were concerned about the
kids’ welfare that were playing outside in the yards.” Id. at 29. Officer Mims
drove back to the house and, on hearing ATV and dirt bike engines, “started
going eastbound on Spann to[ward] the sound. . . .” Id. at 30. He traveled east
on Spann, south on Denny, and east on Fletcher Avenue, where he saw at least
five westbound dirt bikes and ATVs approaching him.
[6] Officer Mims activated his siren and emergency lights to initiate a stop. He
later testified that he intended to “get out and talk to them and tell them [that]
they can’t drive ATV’s and dirt bikes in the middle of the roadway and advise
them of several complaints . . . .” Id. at 32. Several of the ATV and dirt bike
riders “fled westbound.” Id. Officer Mims, who was already eastbound,
focused on two eastbound vehicles. As he later testified,
. . . [There was] a dark colored ATV . . . along with a red and
white dirt bike. I s[aw] Mr. Reese on the four-wheeler. The
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reason I knew it was Mr. Reese [was] because I had just talked to
him an hour and some change previously. And I [had] advised
him of the complaint. As he is coming towards me on the four-
wheeler and he turns around and goes back eastbound on
Fletcher . . . I then beg[a]n to pursue the four-wheeler and the
red and white dirt bike.
Id. at 32. Reese was still wearing a black long-sleeved shirt and jeans, had tied a
gray bandanna over his face, and was driving a dark colored ATV. The second
man, riding a red and white dirt bike, wore a red sweatshirt and jeans. Neither
driver heeded Officer Mims’ lights; instead, they tried to evade him. Officer
Mims’ pursuit of the drivers spanned several streets, and he eventually lost sight
of them.
[7] Because he had recognized Reese, Officer Mims returned to the house and
observed Reese and another man—wearing a red sweatshirt—walking in the
alley. Officer Mims exited his car, approached the men, and “told both of
them to get down on the ground at gunpoint.” Id. at 38. Both men “were
panting and heav[il]y out of breath” and “covered in dirt.” Id. at 57. Although
both men initially complied, the second man “fled through the alley back
eastbound.” Id. Officer Mims handcuffed and arrested Reese for fleeing from a
law enforcement officer while using a vehicle; he also read him his Miranda
advisements. When Officer Mims asked Reese why he had fled, Reese denied
owning an ATV or being the person that Officer Mims had observed operating
an ATV on a public street. A search incident to arrest revealed a dark-colored
bandanna in Reese’s pocket.
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[8] On April 10, 2017, the State charged Reese with Level 6 felony resisting law
enforcement by fleeing by vehicle. He was tried by a jury on November 29,
2017. The jury found Reese guilty as charged. At his sentencing hearing on
December 13, 2017, the trial court imposed a sentence of one and one-half
years (545 days) of confinement on community corrections. The trial court
found Reese’s criminal history to be an aggravating circumstance and found no
mitigating circumstances. Reese now appeals.
Analysis
[9] Reese contends that his sentence is inappropriate in light of the nature of his
offense and his character. Indiana 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 offenses and the character of the offender. When considering whether a
sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). Still, we must give due consideration to that decision. Id. We also
understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. 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).
[10] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
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with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[11] The advisory sentence for a Level 6 felony is one year, with a sentencing range
of six months and two and one-half years. Ind. Code § 35-50-2-7(b). Here,
citing Reese’s criminal history, the trial court imposed an enhanced one and
one-half year commitment to community corrections, with no suspended time
or probation.
[12] As to the nature of the offense, despite a string of prior warnings and within two
hours of receiving yet another warning from Officer Mims, Reese and others
improperly operated non-street-legal dirt bikes and/or ATVs in public roadways
and disregarded traffic signals in the vicinity of playing neighborhood children.
Two hours after Officer Mims warned him against such behavior, Reese and
others again took to the streets. When Officer Mims sought to apprehend
Reese, Reese disregarded his siren and flashing emergency lights, led him on a
chase through city streets, and briefly evaded him.
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[13] Regarding his character, then-twenty-nine-year-old Reese’s prior criminal
history includes true findings as a juvenile for conversion, criminal mischief,
and possession of marijuana, as Class A misdemeanors. “As an adult he has
been arrested or summonsed on 16 [sixteen] known occasions.” App. Vol. II p.
116. His adult criminal history includes two Level 6 felony convictions for
criminal recklessness and domestic battery; and three Class A misdemeanor
convictions for possession of hash oil, invasion of privacy, and resisting law
enforcement. In light of his criminal history and, in the instant case, his
relentless flouting of law enforcement authority, despite numerous warnings
that his conduct was not only illegal but also endangering neighborhood
children, we cannot say that Reese’s one and one-half year executed sentence is
inappropriate in light of the nature of the offense and his character.
Conclusion
[14] Reese’s sentence is not inappropriate in light of the nature of his offense and his
character. We affirm.
[15] Affirmed.
[16] Vaidik, C.J., and Pyle, J., concur.
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