Dominique M. Peoples v. State of Indiana (mem dec.) ( 2017 )


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  • MEMORANDUM DECISION                                                              FILED
    Pursuant to Ind. Appellate Rule 65(D), this                                 Dec 06 2017, 10:19 am
    Memorandum Decision shall not be regarded as                                     CLERK
    precedent or cited before any court except for the                           Indiana Supreme Court
    Court of Appeals
    purpose of establishing the defense of res judicata,                              and Tax Court
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Mary P. Lake                                             Curtis T. Hill, Jr.
    La Porte, Indiana                                        Attorney General of Indiana
    Indianapolis, Indiana
    Angela N. Sanchez
    Supervising Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Dominique M. Peoples,                                    December 6, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    46A03-1705-CR-1096
    v.                                               Appeal from the La Porte Circuit
    Court.
    The Honorable Thomas J. Alevizos,
    State of Indiana,                                        Judge.
    Appellee-Plaintiff.                                      Trial Court Cause Nos.
    46C01-1604-F5-377
    46C01-0705-FB-236
    Barteau, Senior Judge
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017              Page 1 of 9
    Statement of the Case
    1
    [1]   Dominique Peoples appeals his sentences for Level 5 felony aiding battery in
    one cause and for violating the terms of his probation in a separate cause. We
    affirm.
    Issue
    [2]   The sole issue Peoples raises on appeal is whether his sentences are
    inappropriate in light of the nature of the offense and the character of the
    offender.
    Facts and Procedural History
    [3]   We begin with the relevant but somewhat complex procedural history that
    precedes the incident that gave rise to the appeal before us. In October 2007,
    under Cause No. 46C01-0705-FB-236, a separate cause that is unrelated to the
    facts of the instant case, Peoples pleaded guilty to dealing in cocaine as a Class
    B felony. He was sentenced to twelve years in the Indiana Department of
    Correction (DOC), with six years suspended, and was placed on probation for
    six years.
    [4]   On October 26, 2015, the La Porte County probation department filed the first
    petition for revocation of suspended sentence against Peoples, alleging that
    1
    
    Ind. Code § 35-41-2-4
     (1977) (aiding); 
    Ind. Code § 35-42-2-1
    (f)(2) (2014) (battery by means of deadly
    weapon).
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017           Page 2 of 9
    Peoples failed to report to probation as directed. On December 17, 2015, the
    probation department filed a second petition for revocation of suspended
    sentence, alleging that Peoples failed to obtain permission to change his address
    and that he tested positive for controlled substances.
    [5]   The incident that gave rise to the appeal before us occurred on February 28,
    2016. P.M., the victim, Lisa Santana, and Cheryl Santana were at a bar in La
    Porte, Indiana. A group of men, who also were in the bar, began staring at
    P.M. and then insulting P.M. Included in the group were Peoples and his
    brother, Troy. P.M. approached the group to determine if any of the men “had
    a problem with him.” Appellant’s App. Vol. 2, p. 141. Troy used derogatory
    language to refer to P.M. and stated that he was going to “beat this f**’s a**.”
    
    Id. at 140
    . After a small altercation, the bouncers removed P.M. from the bar.
    [6]   Lisa and Cheryl walked P.M. to his vehicle because they heard the group of
    men inside the bar “talking about how they were going to beat [P.M.] up
    because he was gay.” 
    Id.
     As P.M., Lisa, and Cheryl walked to P.M.’s vehicle,
    a group of six men, including Peoples and Troy, followed them. Troy
    approached P.M. and said, “I’m going to crack this f***** motherf***** in the
    head.” 
    Id.
     The group of men, including Peoples, attacked P.M. and began
    punching and kicking him. Lisa and Cheryl saw Troy hit P.M. over the head
    with a bottle. Lisa and Cheryl also watched Troy reach into P.M.’s pockets as
    the other men were beating him and take his belongings, as well as rip a
    necklace from P.M.’s neck. During the attack, P.M. lost consciousness and
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 3 of 9
    suffered a deep laceration above his left eye. He was transported to the hospital
    where he received stitches for the laceration.
    [7]   In March 2016, before Peoples was charged with any crimes for participating in
    the attack upon P.M., Peoples was charged with committing Level 4 felony
    possession of cocaine and Level 3 felony dealing in a narcotic drug under Cause
    No. 46D01-1603-F2-231. Based upon these two new criminal charges, on April
    4, 2016, the probation department filed a third petition for revocation of
    suspended sentence. Peoples later pleaded guilty under Cause No. F2-231 to
    possession of cocaine as a Level 4 felony and was sentenced to five years
    executed in the DOC with a recommendation that he be placed in a therapeutic
    community while serving the five-year sentence in the DOC.
    [8]   On April 29, 2016, based upon his participation in the beating of P.M., Peoples
    was charged with aiding battery as a Level 5 felony. On February 24, 2017,
    Peoples entered into a plea agreement and pleaded guilty to aiding battery as a
    Level 5 felony, under Cause No. 46C01-1604-F5-377. He also admitted to a
    probation violation under Cause No. FB-236 (the case where Peoples pleaded
    guilty to dealing in cocaine as a Class B felony, was sentenced to twelve years
    in the DOC with six years suspended, and was placed on probation for six
    years).
    [9]   On March 10, 2017, the trial court held a sentencing hearing on Peoples’s most
    recent guilty plea and probation violation admission. The trial court found as
    aggravating factors Peoples’s significant criminal history and that Peoples
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 4 of 9
    recently violated the terms of his probation by committing the current offense
    while on probation. The trial court found as a mitigating factor Peoples’s
    admission of culpability. After finding that the aggravating factors outweighed
    the mitigating factors, the trial court sentenced Peoples to five years in the
    DOC, with no time suspended, and ordered Peoples to pay $2,592.00 in
    restitution to the victim. Additionally, for violating the terms of his probation
    under Cause No. FB-236, the trial court ordered Peoples to serve in the DOC
    the remaining six years of his suspended sentence, with the possibility that two
    years of the sentence would be stayed if Peoples successfully completed the
    sentence he received in Cause No. F2-231 (conviction for Level 4 felony
    possession of cocaine). The trial court ordered the five-year sentence under
    Cause No. F5-377 (Level 5 felony aiding battery) and the six-year sentence
    under Cause No. FB-236 to be served consecutively. Peoples appeals.
    Discussion and Decision
    [10]   Peoples’s argument is that both his five-year sentence for Level 5 felony aiding
    battery and his six-year sentence for the probation violation are inappropriate
    under Indiana Appellate Rule 7(B) in light of the nature of the offense and his
    character. As the State points out, however, Peoples’s six-year sentence was the
    result of his pleading guilty to violating the terms of his probation in a separate
    cause. The standard of review set forth in Rule 7(B) “is not the correct standard
    to apply when reviewing a sentence imposed for a probation violation.” Prewitt
    v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). A trial court’s sentencing decision for
    a probation violation is reviewable using the abuse of discretion standard. 
    Id.
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 5 of 9
    An abuse of discretion occurs where the decision is clearly against the logic and
    effect of the facts and circumstances. 
    Id.
    [11]   However, Peoples fails to make a cogent argument that his six-year sentence
    imposed for violating the terms of his probation was an abuse of discretion; as
    such, any claim of error with respect to that sentence is waived. See Foutch v.
    State, 
    53 N.E.3d 577
    , 580 n.1 (Ind. Ct. App. 2016) (noting that party must make
    cogent argument regarding abuse of discretion in sentencing separate from
    inappropriateness analysis in order to preserve claim for appellate review).
    Additionally, under Indiana Code section 35-50-1-2(e) (2015), Peoples was
    required to serve the remainder of his sentence imposed under Cause No. FB-
    236 (Class B felony dealing in cocaine) consecutive to his sentence for the Level
    5 felony aiding battery conviction under Cause No. F5-377 because he was
    arrested for aiding battery before he was discharged from probation under
    Cause No. FB-236. The trial court had no choice in the matter. As such, the
    only issue properly before us in this appeal is whether Peoples’s five-year
    sentence for Level 5 felony aiding battery is inappropriate.
    [12]   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 offense and the
    character of the offender. The defendant bears the burden of persuading this
    Court that his sentence is inappropriate. Childress v. State, 
    848 N.E.2d 1073
    ,
    1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the
    “culpability of the defendant, the severity of the crime, the damage done to
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 6 of 9
    others, and myriad other factors that come to light in a given case.” Cardwell v.
    State, 
    895 N.E.2d 1219
    , 1224 (Ind. 2008).
    [13]   Our Supreme Court has further explained that “[s]entencing is principally a
    discretionary function in which the trial court’s judgment should receive
    considerable deference.” 
    Id. 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).
    [14]   When determining whether a sentence is inappropriate, we acknowledge that
    the advisory sentence is the starting point the General Assembly has selected as
    an appropriate sentence for the crime committed. Childress, 848 N.E.2d at
    1081. Here, Peoples was convicted of a Level 5 felony, for which the
    sentencing range is between one and six years, with an advisory sentence of
    three years. See 
    Ind. Code § 35-50-2-6
     (2014). The trial court sentenced Peoples
    to five years, which is above the advisory sentence but below the maximum
    sentence allowed under the statute.
    [15]   As to the nature of the offense, Peoples attempts to downplay its nature by
    asserting that he was not the aggressor in the attack and did not strike the victim
    with the bottle. We are not persuaded by his assertions. Peoples, along with
    five other men, first harassed P.M. and then referred to him using derogatory
    language, apparently because they believed that P.M. was gay. The men,
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 7 of 9
    including Peoples, then followed P.M. out of the bar and brutally attacked him.
    P.M. was kicked and punched repeatedly by Peoples and the rest of the men.
    P.M. was hit on the head with a bottle, which caused a deep laceration above
    his eye that required stitches. Witnesses recalled that derogatory terms were
    hurled at P.M. both inside the bar and as the attack occurred. P.M. lost
    consciousness due to the attack, and he was robbed of his wallet, his cell phone,
    and his necklace. The offense arose from a senseless, brutal attack. We decline
    to find that Peoples’s sentence was inappropriate in light of the nature of the
    offense.
    [16]   Regarding Peoples’s character, Peoples concedes that he has a significant
    criminal record but argues that he suffers from a “severe drug problem with
    marijuana, cocaine, and heroin” and that he does not have a violent criminal
    history. Appellant’s Brief p. 10. However, the trial court did not recognize this
    evidence as mitigating factors but, instead, focused on Peoples’s criminal
    history that includes a Class B misdemeanor conviction for disorderly conduct,
    two felony convictions for Class B felony dealing in cocaine, a conviction for
    Level 4 felony possession of cocaine, and (now) a conviction for Level 5 felony
    aiding battery. Also, five petitions for revocation of suspended sentence have
    2
    been filed against Peoples. He violated the conditions of probation on more
    2
    On May 17, 2016, the probation department filed a fourth petition for revocation of suspended sentence
    based upon the aiding battery charge filed against Peoples for his participation in the attack on P.M. Prior to
    the filings of the four most recent petitions for revocation of suspended sentence, in 2005, the probation
    department filed a petition for revocation of suspended sentence against Peoples in a case that resulted in a
    conviction for Class B misdemeanor disorderly conduct.
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017             Page 8 of 9
    than one occasion, twice failed to appear to court, and committed the instant
    offense while on probation. Finally, Peoples willingly participated in a mob-
    like group beating of P.M., apparently because he and the other members of the
    group took issue with P.M.’s perceived sexual orientation. We cannot say that
    Peoples’s sentence was inappropriate in light of his character.
    Conclusion
    [17]   Peoples has failed to persuade this Court that the five-year sentence imposed for
    his conviction for Level 5 felony aiding battery is inappropriate in light of the
    nature of his offense and his character. We affirm the trial court’s sentence.
    [18]   Affirmed.
    Bailey, J., and May, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 46A03-1705-CR-1096 | December 6, 2017   Page 9 of 9
    

Document Info

Docket Number: 46A03-1705-CR-1096

Filed Date: 12/6/2017

Precedential Status: Precedential

Modified Date: 12/6/2017