Jarvice Sears 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 Jul 31 2019, 10:56 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
LaPlante LLP Attorney General of Indiana
Evansville, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jarvice Sears, July 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-478
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1510-F1-6635
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Jarvice Sears was found guilty of two counts of Level 1
felony burglary, one count of Level 2 felony attempted robbery, four counts of
Level 3 felony attempted robbery, and two counts of Level 3 felony aggravated
battery. The trial court sentenced Sears to an aggregate sentence of sixty-nine
years executed in the Indiana Department of Correction (“DOC”). On direct
appeal, Sears alleged that several of his convictions violated double jeopardy
and that his sentence was inappropriate. See Sears v. State, No. 82A01-1708-CR-
1815 (Ind. Ct. App. July 17, 2018). We concluded that Sears’s convictions for
two counts of Level 1 felony burglary could not stand and remanded with
instructions to vacate a burglary conviction. We also remanded with
instructions to vacate Sears’s convictions for the two counts of Level 3 felony
aggravated battery. We chose not to address Sears’s contention that his sixty-
nine-year sentence was inappropriate, finding such review premature, and we
instructed the trial court to resentence him. At resentencing, Sears was
sentenced to fifty-nine years in the DOC. Sears now appeals, raising one issue
for our review, that is, whether his sentence is inappropriate in light of the
nature of the offenses and his character. Concluding that the sentence is not
inappropriate, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Sears’s direct
appeal:
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There are two upstairs apartments above the 711 Tavern on 711
West Virginia Street in Evansville, Apartments A and B, which
are accessed by a common hallway. In October of 2015, Jeremy
Herbert lived in Apartment A, and Logan Orth used the
apartment to deal marijuana. On October 25, 2015, Diego
Thomas and Marquell Jackson decided to rob Orth because
Thomas knew that Orth was a drug dealer and believed that he
would have money and drugs. On October 26, 2015, Thomas
went [to] the home of his cousin Sears to retrieve his rifle and
asked Sears to procure an additional firearm. Jackson recruited
O’Neil Bruin and Cory Cain to participate in the robbery.
Later[,] on October 26, 2015, Bruin, Jackson, Thomas, and Sears
exited their vehicle at 711 West Virginia Street, while Cain, the
driver, stayed behind. The quartet entered the building and went
upstairs, and three of them entered Apartment A with masks on
and guns drawn. Orth, Herbert, Emily Todisco, Leah Walker,
Colton Claybrooks, Kaylee Rocca, Brayden Scott, and three of
Herbert’s friends were smoking marijuana in Apartment A at the
time. Sears threw a bag on the table and demanded that
everyone in the room fill it with their valuables. Orth managed
to retrieve his handgun from under a couch and attempted to fire
it twice at the intruders, but it misfired. Sears shot Orth in the
throat and chest.
Meanwhile, Cameron Kendall was helping his brother, who lived
in Apartment B, move out that evening. Kendall happened to
have a concealed-carry permit and was armed. Kendall’s brother
was loading items into a vehicle when Kendall heard shots, and
he decided to check on his brother. As soon as Kendall opened
the door to Apartment B, Sears shot him in the abdomen.
Kendall returned fire until he ran out of ammunition, shooting
Bruin in the right leg and left shoulder, Thomas in the hip, and
Sears in the chest and back.
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The State ultimately proceeded to jury trial on charges of two
counts of Level 1 felony burglary resulting in serious bodily
injury where Orth and Kendall were the victims; Level 2 felony
attempted robbery resulting in serious bodily injury where Orth
was the victim; four counts of Level 3 felony attempted robbery
threatening to use force while armed where Herbert, Todisco,
Walker, and Claybrooks were the victims; and two counts of
Level 3 felony aggravated battery where Orth and Kendall were
the victims. The jury found Sears guilty as charged. The trial
court entered judgment of conviction on all of the jury’s verdicts
but did not impose sentences for Level 2 felony attempted
robbery or the two counts of Level 3 felony aggravated battery
due to double jeopardy concerns. The trial court sentenced Sears
to thirty years of incarceration for each of the Level 1 felony
burglary convictions, to be served consecutively, and nine years
for each of the Level 3 felony attempted robbery convictions, to
be served concurrent with each other but consecutive to the
burglary sentences, for an aggregate sentence of sixty-nine years.
Id. at *1-2. Sears was nineteen years old at the time the crimes were committed.
[3] On direct appeal, Sears’s appellate counsel raised three issues: (1) his two
convictions for Level 1 felony burglary violated prohibitions against double
jeopardy, (2) his convictions for Level 2 felony attempted robbery and Level 3
felony aggravated battery violated common-law prohibitions against multiple
punishment for the same harm, and (3) his sixty-nine-year sentence was
inappropriate. Id. at *1. A panel of this court affirmed in part, reversed in part,
and remanded with instructions to “(1) vacate Sears’s Level 1 felony burglary
conviction . . . , (2) vacate his two convictions for Level 3 felony aggravated
battery, and (3) resentence him. Id. at *4. We chose not to review Sears’s
sentence for appropriateness, finding the issue premature.
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[4] On February 14, 2019, the trial court vacated one of Sears’s burglary
convictions and both of his aggravated battery convictions. The trial court
subsequently resentenced Sears to thirty years on the remaining burglary
conviction, twenty years on the Level 2 attempted robbery conviction, and nine
years for each of his four convictions for Level 3 attempted robbery. The Level
3 sentences were ordered to be served concurrent with each other but
consecutive to the burglary and Level 2 attempted robbery sentences. Sears
received an aggregate sentence of fifty-nine years executed at the DOC. Sears
now appeals. Additional facts will be supplied as necessary.
Discussion and Decision
I. Inappropriate Sentence
[5] Sears argues his sentence is inappropriate in light of the nature of his offenses
and his character. Sears contends that his sentence is an “outlier that this Court
should remedy.” Appellant’s Reply Brief at 7. He asks this court to revise his
sentence “to a term of years consistent with that of his [codefendants] and
other[s] who commit these types of crimes.” Id.
[6] At his original sentencing hearing, the trial court found as follows regarding
aggravating and mitigating circumstances:
The most significant aggravating circumstance here is the nature
and circumstances of the offense. This is a shocking level of
violence for a civilized society. Besides yourself Mr. Sears, four
other human beings were shot with guns, just abhorrent. That
can’t – civilized society cannot tolerate that kind of behavior.
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Four other human beings besides yourself were shot [and] at least
three of them were seriously injured, could have had serious and
significant risks of death to at least two of them and at least one
of them still suffers from permanent – apparently permanent
injuries as a result of what happened. A shoot[-]out in a city in a
residential setting is just, is just shocking to common sensibilities
and morality and decency. There were six different victims here.
Two of them that were seriously injured, two of your
confederates were shot besides yourself. There were handguns
and weapons that had been deliberately procured and
deliberately made a part of this, this scheme. That’s the
aggravating circumstance that outweighs everything else in the,
in the case. It was a deliberate plan to arm yourselves and do
whatever it takes, use whatever amount of force was necessary to
get some marijuana and some money and, and as a result, four,
five people, I include you in this, were hurt pretty bad.
[Prior Case] Transcript of Evidence, Volume 4 at 153-54. The trial court
sentenced Sears to thirty years for each of the Level 1 felony burglary
convictions, to be served consecutively, and nine years for each of the Level 3
felony attempted robbery convictions, to be served concurrent with each other
but consecutive to the burglary sentences, for an aggregate sentence of sixty-
nine years. The trial court determined that consecutive sentences were
warranted because of the “aggravating nature and circumstances of the
offenses[,]” and because “each victim deserve[d] their own sentence.” Id. at
154.
[7] On remand, the trial court resentenced Sears to an aggregate sentence of fifty-
nine years, specifically:
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Count two, the burglary a [L]evel one felony be thirty years in
the Indiana Department of Corrections. Count 5, the robbery a
[L]evel two will be twenty years in the Indiana Department of
Corrections those sentences will be served consecutively and the
remanding [sic] counts, seven, eight, nine and ten[, all Level 3
felonies,] will all be nine years executed. Those are all the
presumptive [sic] sentences in this cases [sic]. Those will be
concurrent to each other, but consecutive to counts two and
counts five for a total sentence of fifty-nine years. That sentence
will be executed.
[Remand] Transcript of Evidence, Volume 2 at 6. The trial court did not
discuss any additional mitigating or aggravating circumstances, apparently
relying upon those set forth at Sears’s original sentencing.
II. Standard of Review
[8] We may review and revise criminal sentences pursuant to the
authority derived from Article 7, Section 6 of the Indiana
Constitution. Indiana Appellate Rule 7(B) empowers us to revise
a sentence “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.” Because
a trial court’s judgment “should receive considerable
deference[,]” our principal role is to “leaven the outliers.”
Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008). “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). The defendant bears the burden to
persuade this court that his or her sentence is inappropriate,
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may
look to any factors appearing in the record for such a
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determination, Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct.
App. 2011), trans. denied.
Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under
Appellate Rule 7(B) analysis is “not whether another sentence is more
appropriate” but rather “whether the sentence imposed is inappropriate.” King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence is
inappropriate “turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224. Generally,
multiple victims justify the imposition of enhanced and consecutive sentences.
Tyler v. State, 903 N.E.2d 463, 468 (Ind. 2009). Although we need not compare
the sentences of codefendants, we are not precluded from comparing sentences
among those convicted of the same or similar crimes. Knight v. State, 930
N.E.2d 20, 22 (Ind. 2010).
[9] We begin with the advisory sentence in determining the appropriateness of a
sentence. Childress, 848 N.E.2d at 1081. Since the advisory sentence is the
starting point our General Assembly has selected as an appropriate sentence for
the crime committed, the defendant bears a particularly heavy burden in
persuading us that his sentence is inappropriate when the trial court imposes
the advisory sentence. Golden v. State, 862 N.E.2d 1212, 1216 (Ind. Ct. App.
2007), trans. denied. The advisory sentence for a Level 1 felony is thirty years,
with a minimum sentence of twenty years and a maximum sentence of forty
years. Ind. Code § 35-50-2-4(b). The sentencing range for a Level 2 felony is “a
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fixed term of between ten (10) and thirty (30) years, with the advisory sentence
being seventeen and one-half (17½) years.” Ind. Code § 35-50-2-4.5. A
Level 3 felony carries a sentencing range of three to sixteen years, with an
advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Sears was sentenced
to the advisory sentence for the Level 1 and Level 3 felonies. For the Level 2
felony, his sentence was only two and one-half years longer than the advisory
sentence but twelve and one-half years shorter than the maximum sentence.
III. Nature of the Offenses
[10] Sears does not attempt to mitigate the seriousness of his offenses, which are
egregious. He argues, however, that the nature of the offenses does not warrant
a fifty-nine-year sentence because he did not shoot until he was shot at, and his
attempts to retreat were met with an individual using deadly force. We
disagree.
[11] Evidence presented at trial indicated that Sears knew of his codefendants’ plan
to rob a drug dealer and that Sears was a willing participant. Prior to arriving at
the scene of the crime, Sears armed himself with a .45 caliber semi-automatic
handgun. Evidence was presented that Sears had an opportunity to call-off the
robbery but chose to proceed.
[12] Video surveillance footage showed that Sears led his group of codefendants into
the apartment building, up the stairs, and to the apartment where Orth
conducted his business. Once inside the apartment, Sears pointed a loaded
handgun at the ten occupants of the apartment, putting them in fear for their
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lives, then threw a backpack on the table and demanded that they place their
valuables into the bag. The fact that Orth tried to thwart the robbery, by pulling
out his firearm and attempting to shoot Sears, does not attenuate the
egregiousness of Sears’s next act, that is, firing his handgun multiple times in a
confined area, first wounding Orth, then, minutes later, wounding Kendall—an
innocent bystander. Orth was shot in the throat and chest. He testified that the
gunshots “blew out my [main] artery in my shoulder[,] which is the main one
that pumps through the top of your body.” [Prior Case] Tr., Vol. 3 at 125. His
injuries could have proved fatal had he waited for an ambulance rather than
being transported to the hospital by friends. Kendall was shot in the abdomen
and testified that as a result of the shooting, his right leg is “still half[-]way
numb[;]” he had to have two feet of his intestines removed; and he suffers from
a slipped disc in his lower back. [Prior Case] Tr., Vol. 4 at 42. Given the
nature of the offenses, we find that Sears’s sentence is not inappropriate.
[13] Sears also contends that his sentence is inappropriate because he is no more or
less culpable than his codefendants, Marquell Jackson, O’Neil Bruin, and
Diego Thomas, yet he “is serving twenty-four years more than any other person
who was involved [in the] crime.” Appellant’s Brief at 12. According to Sears,
when three other individuals all involved in the same crime have
received significantly lighter sentences, it seems clear that this
Court must provide some balance between the punishment Sears
received and those received by his [codefendants], especially
since there is no evidence to suggest that Sears was the ringleader
or had more culpability than any other [codefendant].
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Id. at 13. Sears argues that his sentence should, therefore, be in a range similar
to his codefendants.1 Sears also invites this court to “look at [his] sentence
against the scope of all sentences, rather than just comparing his sentence to
that of his codefendants[;]” and, for guidance, “look at statutory guides for
offenses where consecutive sentences are given[,]” as the “legislature has
capped consecutive sentences in some instances.” Id.
[14] Even if we do compare sentences, which we are not required to do, we find that
Sears’s aggregate sentence is appropriately longer than his codefendants. While
Sears testified at trial that he did not know that the codefendants were planning
to rob Orth and that his only plan that day was to purchase $1,000.00 worth of
marijuana, additional evidence was presented that Sears’s involvement in the
robbery stemmed from his willingness to provide a gun for the heist. When
Sears and his codefendants arrived at the apartment building, Sears served as a
scout and surveilled the scene of the impending robbery. He then led his group
of codefendants into the apartment building, up the stairs, and to the apartment
where Orth conducted his business. Once inside the apartment, Sears pointed a
1
Jackson is serving thirty-five years for his role in the crime after an appeal and being resentenced by the
Vanderburgh Circuit Court. See mycase.IN.gov, State v. Jackson, Cause No. 82C01-1510-F1-6686,
https://public.courts.in.gov/mycase/#/vw/Search (last accessed July 17, 2019). Bruin was sentenced to
twenty years. See mycase.IN.gov, State v. Bruin, 82C01-1510-F1-6636, https://public.courts.in.gov/mycase/
#/vw/Search (last accessed July 17, 2019). Thomas was sentenced to fifteen years, with the first forty-two
months executed and the balance suspended on the condition that he complete a drug abuse probation
services program. See mycase.IN.gov, State v. Thomas, Cause No. 82D03-1510-F1-6634,
https://public.courts.in.gov/mycase/#/vw/ Search (last accessed July 17, 2019). Codefendant Corey Cain,
the getaway driver, is serving six years. See mycase.IN.gov, State v. Cain, Cause No. 82D03-1510-F1-6676,
https://public.courts.in.gov/mycase/#/vw/Search (last accessed July 17, 2019). Thomas and Bruin testified
in Sears’s trial and pleaded guilty to their roles in the crime.
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loaded handgun at the ten occupants of the apartment and attempted to rob
them. Sears fired the handgun multiple times, first wounding Orth then,
minutes later, wounding Kendall—an innocent bystander. Both Orth and
Kendall were critically wounded.
[15] Even if the exchange of gunfire was completely unexpected, this does not
change the fact that Sears participated in a robbery in which he provided the
gun, brandished the gun, and ultimately fired the gun—critically wounding two
individuals. Given the circumstances of Sears’s involvement in the crime, the
fact that Sears received a longer sentence than his codefendants received does
not support his claim that his sentence is an “outlier” and, therefore,
inappropriate.
IV. Character of the Offender
[16] As to his character, Sears argues that he has no prior adult criminal history; he
has not previously served a long-term executed sentence; he was categorized as
having a moderate risk to reoffend on the Indiana Risk Assessment tool; this is
his first felony conviction; he is the youngest of his codefendants and “was not
thought to be the ringleader” of the heist; he has a child;2 and he held jobs after
2
The child that Sears claims to have is actually his girlfriend’s child. At sentencing, Sears’s counsel clarified
Sears’s relationship with the child as follows: “This young man talked about that kid as his child but stated
to me no, that’s not my kid[,] . . . so we deliberately set out to correct that[.] . . . [W]e never set out to
deliberately claim this [child] as a dependent.” [Prior Case] Tr., Vol. 4 at 153.
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his high school graduation. Id. at 17. We are unpersuaded that Sears’s
character warrants a reduction of his sentence.
[17] Sears has no prior adult criminal history, however, he has a history of juvenile
adjudications, including adjudications for what would have been burglary (in
2009), theft (2009 and 2012), and trespass and false informing (2012) if
committed by an adult. He was placed on probation, but was twice
unsatisfactorily released from probation. Since the age of seventeen, he has
used marijuana daily, and at the time of his arrest, he was smoking
approximately three to four grams of marijuana each day.
[18] While the State agreed that Sears’s age (nineteen years old) at the time he
committed the crimes was a mitigating circumstance, the State argued, and we
agree, that it was not a significant mitigator. Our supreme court has held that a
young age does not “automatically” qualify as a significant mitigator. Gross v.
State, 769 N.E.2d 1136, 1141 n.4 (Ind. 2002). In fact, it “is neither a statutory
nor a per se mitigating factor. There are cunning children and there are naïve
adults.” Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999). Accordingly,
when a defendant is in his teens or early twenties, chronological age is only the
starting point. Monegan v. State, 756 N.E.2d 499, 504 (Ind. 2001). What really
must be determined is whether the young offender is “clueless” or “hardened
and purposeful.” Id.[19] Sears was not “clueless” when he armed himself and willingly participated in
the robbery. As the State noted, Sears was not fifteen or sixteen years old when
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he committed the crimes. He was nineteen, and as the State pointed out at
sentencing, he is “mature, lives on his own and holds two jobs, [and] gets good
grades[,]” and should have appreciated that robbing individuals at gunpoint
carries consequences. [Prior] Tr., Vol. 4 at 150. Sears’s contacts with the
juvenile justice system, his inability to complete probation, his disregard for the
law, and his willing participation in a robbery that, due to his decision to arm
himself, escalated to a shocking level of violence reveals character that does not
merit sentence revision under Appellate Rule 7(B).
[20] Under these facts and circumstances, we cannot conclude that Sears’s fifty-nine-
year sentence is inappropriate in light of the nature of his offenses and his
character. We decline to revise it under Appellate Rule 7(B).
Conclusion
[21] In conclusion, Sears’s sentence is not inappropriate given the nature of the
offenses and his character.
[22] Affirmed.
Baker, J., and Najam, J., concur.
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