Darrell L. Berry v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 27 2019, 8:26 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
John A. Kindley Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrell L. Berry, June 27, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2916
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1803-F5-49
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 1 of 4
Case Summary
[1] Darrell Berry pled guilty to Level 5 felony battery and was sentenced to a four-
year term in community corrections. On appeal, Berry contends that his four-
year sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On March 2, 2018, Berry touched C.P. in a rule, insolent, or angry manner. On
March 7, 2018, the State charged Berry with Count I – Class B misdemeanor
battery, Count II – Class A misdemeanor resisting law enforcement, and Count
III – Level 5 felony battery. In charging Berry with this elevated battery charge,
the State alleged that in 2016, Berry was convicted of Class A misdemeanor
domestic battery, with C.P. as his victim. On September 24, 2018, Berry pled
guilty to the Level 5 felony battery charge. In exchange, the State agreed to
drop Counts I and II. The trial court accepted Berry’s guilty plea and, on
November 2, 2018, sentenced him to a four-year term to be served in St. Joseph
County Community Corrections.
Discussion and Decision
[3] Berry contends that his four-year sentence is inappropriate in light of the nature
of his offense and his character. Specifically, Berry argues that “there is nothing
about this case and nothing cited by the judge that would indicate that a
sentence higher than the advisory was appropriate.” Appellant’s Br. p. 5. We
disagree.
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[4] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (internal quotation omitted). The defendant bears the burden of
persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d
174, 176 (Ind. Ct. App. 2008).
[5] With respect to the nature of Berry’s offense, the record reveals that Berry’s
criminal act of battering C.P. was elevated to a Level 5 felony because he had
previously been convicted of battering C.P. The record further reveals that in
addition to the prior conviction noted in the charging information for the
elevated battery charge, Berry has another unrelated conviction for battering
C.P. Berry’s act of battering C.P. was not an isolated event as his criminal
record reveals a pattern of Berry victimizing C.P.
[6] In addition to his convictions involving violence against C.P., Berry’s criminal
history includes misdemeanor convictions for operating a vehicle while
intoxicated and leaving the scene of an accident. He has also committed
numerous probation violations. In sentencing Berry, the trial court noted that
while Berry’s criminal history “might not be the worst criminal history, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2916 | June 27, 2019 Page 3 of 4
repeated type of crime, nature of crime … gives me a lot of pause, a lot of
concern.” Tr. Vol. II p. 19. We share the trial court’s concern. Berry’s actions
have demonstrated a disregard for both C.P.’s well-being and for the laws of
this state.
[7] Further, to the extent that Berry claims his guilty plea reflects well on his
character, we have previously held that a guilty plea does not automatically
signify a positive character trait, especially in cases where, as here, the
defendant has received a benefit from the plea or “where the evidence against
him is such that the decision to plead guilty is merely a pragmatic one.” See
Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005), trans. denied. In this
case, Berry pled guilty after viewing the exhibits that the State planned to
introduce into trial and in exchange for other charges being dropped. As such,
we conclude that Berry’s decision to plead guilty was more of a pragmatic
decision rather than a display of positive character. Berry has failed to convince
us that his four-year sentence is inappropriate.
[8] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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