Michael J. Jackson Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 04 2017, 7:48 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael J. Jackson Jr., October 4, 2017
Appellant-Defendant, Court of Appeals Case No.
79A04-1703-CR-660
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
79D02-1607-F5-107
79D02-1609-F2-26
Crone, Judge.
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Case Summary
[1] Facing charges under three separate causes, Michael J. Jackson Jr. pled guilty
pursuant to a single plea agreement to four felony offenses. Sentencing was left
to the trial court’s discretion, and the trial court sentenced him to an aggregate
term of twenty years. In this consolidated appeal, Jackson challenges the
portion of his sentence attributable to the offenses in one of the three causes,
arguing that his sentence is inappropriate in light of the nature of the offenses
and his character. He also contends that the probation condition restricting him
from entering a liquor store is unconstitutionally vague. As a preliminary
matter, we find that because Jackson pled guilty to all four offenses pursuant to
a single plea agreement, Indiana precedent requires that we review his
aggregate sentence, not merely a portion of it. We conclude that Jackson has
failed to carry his burden to show that his twenty-year aggregate sentence is
inappropriate. We also reject Jackson’s challenge to his probation condition.
Accordingly, we affirm.
Facts and Procedural History
[2] On July 13, 2016, Chan Weng Yan was walking to her apartment when she
saw a male, later identified as Jackson, ahead of her. After Yan walked behind
a building, she no longer saw Jackson. Yan arrived at her apartment building
and went inside. As she reached the door to her apartment, Jackson grabbed
her from behind, wrapping both of his arms around her body. He lifted her up
and threw her to the ground. While Yan was on the ground, Jackson searched
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her pockets, took her wallet, and fled. Yan had $6 in her wallet. The next day,
Yan told police that her knee and two fingers hurt due to Jackson’s actions.
[3] Four days later, Minglang Li, who lived in the same apartment building as Yan,
was returning home. As he unlocked the door to his second-floor apartment, he
turned to see Jackson running up the stairs toward him. Jackson said, “Give
me all your money or I will killl [sic] you.” Appellant’s App. Vol. 2 at 132. Li
gave Jackson approximately $100. As Jackson ran away, he told Li, “Don’t tell
anyone about this, I know where you live.” Id.
[4] Police investigated the two robberies and identified Jackson as a suspect. They
went to an apartment where Jackson was expected to be and knocked on the
door. Jackson answered. Although officers recognized Jackson, he repeatedly
told them his name was John. After the police arrested him for false informing,
he told them his real name. Police transported Jackson to the police station.
There, Jackson was advised of his rights, waived his right to remain silent, and
admitted to robbing Yan and Li. The State charged Jackson under cause
number 79D02-1607-F5-107 (“Cause F5-107”) with two counts of level 5 felony
robbery, one count of level 6 felony intimidation, and two counts of class A
misdemeanor theft. On August 3, Jackson posted bond and was released.
[5] On August 5, the State charged Jackson under cause number 79D05-1608-CM-
2826 (“Cause CM-2826”) with class A misdemeanor criminal trespass.
Apparently, he posted bond and was released.
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[6] On August 5, the State also filed a motion to revoke Jackson’s bond in Cause
F5-107. On August 19, the trial court issued an order revoking Jackson’s bond
and issued a warrant for his arrest.
[7] On August 27, Jackson went to sixty-three-year-old Connie Maus’s apartment
and knocked on the door. When Maus opened the door, Jackson put a gun to
her head and forced his way inside. Maus backed up and sat on her bed.
Maus told police that Jackson said, “If you scream I’ll shoot you.” Id. at 134.
Maus told him that she did not have any money. While she sat on her bed,
Jackson looked around and found her handgun and a handgun magazine,
which he stole. Then, he held the gun to her head and took her sapphire ring
off her finger. Jackson fled the apartment. Police arrested him the following
day.
[8] In September 2016, under cause number 79D02-1609-F2-26 (“Cause F2-26”),
the State charged Jackson with level 2 felony burglary, level 3 felony armed
robbery, level 4 felony burglary, level 3 felony criminal confinement (later
amended to level 6), level 5 felony intimidation, class A misdemeanor resisting
law enforcement, level 6 felony theft of a firearm, and class A misdemeanor
theft.
[9] On February 8, 2017, pursuant to an open plea agreement, Jackson pled guilty
to two level 5 felony robberies under Cause F5-107, and level 3 felony armed
robbery and level 6 felony criminal confinement under Cause F2-26. The State
agreed to dismiss the remaining charges in both causes and Cause CM-2826.
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The plea agreement “embodie[d] the entire agreement between the parties.” Id.
at 62. In Cause F5-107, the trial court sentenced Jackson to consecutive terms
of four years, with three years executed and one year suspended, for each
robbery conviction. In Cause F2-26, the trial court imposed a twelve-year
sentence for the armed robbery conviction, with eight years executed and four
years suspended to probation, and a concurrent two-year sentence for the
criminal confinement conviction. The trial court ordered that the sentences in
the two causes run consecutive to each other, for an aggregate sentence of
twenty years, with fourteen years executed and six years suspended. As a
condition of Jackson’s probation, the trial court restricted him from “entering a
bar, tavern, or liquor store.” Id. at 73.
[10] Jackson timely filed his notices of appeal in Causes F5-107 and F2-26. He
subsequently filed a petition to consolidate the appeals, which we granted.
Discussion and Decision
Section 1 – We must review Jackson’s aggregate sentence for
all offenses under the plea agreement.
[11] As a preliminary matter, we observe that Jackson challenges only the portion of
his sentence attributable to Cause F5-107, i.e., his two convictions for level 5
felony robbery. In Webb v. State, 941 N.E.2d 1082, 1087-88 (Ind. Ct. App.
2011), trans. denied, we held that a defendant may not limit our review of his
sentence by merely challenging an individual sentence within a single
sentencing order that includes multiple sentences. There, the defendant pled
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guilty without a plea agreement to robbery, six counts of fraud, and three
additional counts in one cause, and misdemeanor OWI from a separate but
consolidated cause. Id. at 1084-85. On appeal, he challenged only his twenty-
year maximum sentence for robbery rather than his twenty-five-year aggregate
sentence. Id. at 1085. In holding that our review could not be so limited, we
relied on Cardwell v. State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), where our
supreme court emphasized the importance of focusing our review on the
aggregate sentence rather than the length of the sentence on an individual
count. Webb, 941 N.E.2d at 1087-88.
[12] Here, the trial court issued separate sentencing orders for Causes F5-107 and
F2-26 and ordered that the sentences run consecutively. Notwithstanding the
separate sentencing orders, Jackson pled guilty pursuant to a single plea
agreement that covered three separate causes against him. The plea agreement
is captioned with all three cause numbers and articulates the convictions or
dismissal of counts under each. Appellant’s App. Vol. 2 at 62. Specifically, in
exchange for Jackson’s guilty plea to a total of four counts, the remaining six
counts under Cause F2-26 were dismissed and Cause CM-2826 was dismissed
in its entirety. To review his sentence only with respect to two felony
convictions, as he urges, would essentially amount to ignoring important
aspects of the contract between the parties, such as the substantial benefit that
he received in exchange for his guilty plea. The plea agreement represented a
single transaction that “embodie[d] the entire agreement between the parties.”
Id. We believe that the reasoning in Cardwell and Webb extends to
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circumstances such as these where a defendant pleads guilty pursuant to a
single plea agreement to offenses charged under separate cause numbers. In
fact, we have recently so held in Moyer v. State, No. 79A04-1703-CR-477, 2017
WL 3975653 at * 2 (Ind. Ct. App. Sept. 11, 2017), opinion not yet certified. We
review Jackson’s aggregate twenty-year sentence accordingly.
Section 2 – Jackson has failed to carry his burden to show that
his sentence is inappropriate.
[13] Jackson asks us to reduce his sentence pursuant to Appellate Rule 7(B), which
states, “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.” When reviewing a sentence, our principal role is to leaven the
outliers rather than necessarily achieve what is perceived as the correct result in
each case. Cardwell, 895 N.E.2d at 1225. “We do not look to determine if the
sentence was appropriate; instead we look to make sure the sentence was not
inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing
is principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such
deference should prevail unless overcome by compelling evidence portraying in
a positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015). In conducting our review, we may consider all
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aspects of the penal consequences imposed by the trial court in sentencing, i.e.,
whether it consists of executed time, probation, suspension, home detention, or
placement in community corrections, and whether the sentences run
concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010). In addition, as we assess the nature of the offense and character of the
offender, “we may look to any factors appearing in the record.” Boling v. State,
982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Jackson has the burden to show
that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218.
[14] Turning first to the nature of the offenses, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Jackson’s
aggregate twenty-year sentence comprises a twelve-year term for his level 3
felony conviction (concurrent to a two-year term for his level 6 felony
conviction) and consecutive four-year terms for his two level 5 felony
convictions. The sentencing range for a level 3 felony is three to sixteen years,
with an advisory term of nine years. Ind. Code § 35-50-2-5(b). The sentencing
range for a level 5 felony is one to six years, with an advisory term of three
years. Ind. Code § 35-50-2-6(b). A level 6 felony has a sentencing range of six
months to two and one-half years, with an advisory term of one year. Ind.
Code § 35-50-2-7(b).
[15] Jackson argues that a sentence above the advisory is inappropriate because
none of the victims suffered injury, one of the robberies involved no use of
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force, and one of the robberies involved a loss of only $6. Jackson’s argument
ignores the decidedly violent circumstances of his crimes. He grabbed Yan with
both arms, lifted her up, and threw her to the ground. The following day, her
knee and fingers hurt. He threatened to kill Li and warned him not to report
the crime. His third victim was a sixty-three-year-old woman. He forced his
way into her home with a gun pointed at her head. He threatened to kill her if
she screamed. He held a gun to her head while he took her ring off her finger.
In addition, he committed all three robberies within only forty-five-days of each
other. On balance, we cannot say that Jackson has shown compelling evidence
portraying the nature of the offenses in a positive light.
[16] As for Jackson’s character, he claims that he was only eighteen years old at the
time of his offenses, his childhood was extremely difficult, he has mental health
issues, his juvenile criminal history is not substantial, and family and
community leaders showed support for him at sentencing. In describing his life,
he notes that he was born “a drug baby” and designated a child in need of
services, and his parents’ parental rights were terminated. Tr. at 38. He was
adopted by his grandmother at age seven, but when he was twelve his
grandfather died leaving him without a male role model. Psychological
evaluations show that he was diagnosed with attention-deficit/hyperactivity
disorder (“ADHD”) and oppositional-defiant disorder at age seven, for which
he received medication until he refused treatment at age sixteen. His most
recent psychological evaluation includes diagnoses for ADHD, intermittent
explosive disorder, cannabis use disorder, and antisocial personality disorder.
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His criminal history consists of two juvenile adjudications for misdemeanor
conversion and visiting a common nuisance. He was also charged with battery
resulting in bodily injury, but that was dismissed after he wrote a letter of
apology to the victim.
[17] We acknowledge that Jackson has experienced many hardships from the time
of his birth, and we understand that it is often difficult to overcome such
adversity. We observe that the trial court recognized Jackson’s youth and
hardships as mitigating factors. However, even though Jackson was offered
numerous services through probation and the Department of Child Services, he
has exhibited a disturbing propensity to engage in criminal activity. He
committed the instant offenses after warrants for his arrest were issued from
East Chicago City Court for failing to appear for 2016 charges of possession of
marijuana and criminal trespass and from LaPorte Superior Court for a 2016
charge of theft. At the time of sentencing in the instant case, the East Chicago
and LaPorte charges were still pending. After posting bond for Cause F5-107,
he committed the offense under Cause CM-2826. After he posted bond for
Cause CM-2826, he committed the offenses under Cause F2-26. Despite his
numerous contacts with law enforcement, he appears to be unwilling or unable
to refrain from criminal activity, and his actions are continually becoming more
violent. We also note that he lied to police about his identity during their
investigation under Cause F5-107. We conclude that Jackson has failed to
carry his burden to show that his sentence is inappropriate based on the nature
of the offenses and his character. Accordingly, we affirm his sentence.
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Section 3 – The probation condition that restricts Jackson
from entering a “liquor store” is not unconstitutionally vague.
[18] Jackson also asserts that the probation condition that restricts his entry into a
“liquor store” is unconstitutionally vague in that it may be read to prohibit
entry to any business that sells liquor, such as pharmacies and grocery stores, in
which case it is impermissibly overbroad. Appellant’s App. Vol. 2 at 73.1 In
reviewing his argument, we note that trial courts have broad discretion in
determining the appropriate conditions of a defendant’s probation. Bratcher v.
State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied (2014). However,
“[a] probationer has a due process right to conditions of supervised release that
are sufficiently clear to inform him of what conduct will result in his being
returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)
(citing United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002)). To avoid
being unconstitutionally vague, the condition must be clear enough so that
individuals of ordinary intelligence would be adequately informed of the
general conduct that is proscribed. Patton v. State, 990 N.E.2d 511, 516 (Ind. Ct.
App. 2013). The condition “need not list, with itemized exactitude, every item
of conduct that is prohibited.” Id.
[19] In support of his claim, Jackson relies on Collins v. State, 911 N.E.2d 700 (Ind.
Ct. App. 2009), trans. denied. There, a convicted sex offender appealed his
1
Jackson did not object to this probation condition at sentencing and signed the probation condition form.
However, the State does not argue that he failed to preserve his claim for appellate review.
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probation condition that restricted him from visiting “businesses that sell sexual
devices or aids.” Id. at 714. Another panel of this Court concluded that that
condition was unfairly broad because it could extend to drug stores. Id.
[20] We disagree with Jackson that the term “liquor store” is akin to “businesses
that sell sexual devices or aids.” “Liquor store” is not commonly understood to
mean any business that sells liquor; rather, it is commonly understood as a
specific kind of store with the principal purpose of selling liquor. Furthermore,
as the State points out, our legislature has defined liquor store in the context of
alcohol laws. “The term ‘package liquor store’ means a place or establishment
that meets the requirements provided in IC 1971, 7.1-3-10, and whose exclusive
business is the retail sale of alcoholic beverages and commodities that are
permissible under this title for use or consumption only off the licensed
premises.” Ind. Code § 7.1-1-3-28. The terms that Jackson asserts could be
confused with liquor store have different definitions. See Ind. Code §§ 7.1-1-3-
18.5 (defining grocery store) and -15 (defining drug store). Consequently, we
conclude that the probation condition restricting Jackson from entering liquor
stores is constitutionally sound.
[21] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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