Elberta N. Jackson 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 Nov 22 2019, 8:47 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
David M. Payne Curtis T. Hill, Jr.
Ryan & Payne Attorney General of Indiana
Marion, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elberta N. Jackson, November 22, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1325
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1807-F4-39
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1325 | November 22, 2019 Page 1 of 6
Statement of the Case
[1] Elberta N. Jackson appeals her sentence after she pleaded guilty to battery, as a
Level 5 felony; battery, as a Level 6 felony; and resisting law enforcement, as a
Class A misdemeanor. Jackson raises a single issue for our review, namely,
whether her aggregate sentence of four years, with all but her already-served
time suspended to probation, is inappropriate in light of the nature of the
offenses and her character. We affirm.
Facts and Procedural History
[2] On July 20, 2018, Marion Police Department officers placed Jackson under
arrest. Jackson did not comply with the officers’ requests, however. In relevant
part, she refused to get in a police vehicle, and as a result officers had to “drag”
her into the vehicle. Tr. Vol. II at 11. Upon arriving at the jail, she “slammed
[her] body” into the body of an escorting officer. Id. at 12. And when officers
at the jail attempted to remove a ring from Jackson’s finger and take out a hair
tie, she “struggl[ed]” with them and bit one of the officers on the leg, leaving a
bite mark and bruising. Id. at 13.
[3] Among other offenses, the State charged Jackson with battery, as a Level 5
felony; battery, as a Level 6 felony; and resisting law enforcement, as a Class A
misdemeanor. After the court empaneled a jury but before the parties began to
try the case, Jackson agreed to plead guilty to those three offenses, and, in
exchange, the State dismissed the remaining counts.
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[4] Thereafter, the trial court held a sentencing hearing. Following that hearing,
the court ordered Jackson to serve an aggregate term of four years with all but
her time already served suspended to probation. In determining Jackson’s
sentence, the court found her criminal history to be an aggravating factor and
found her remorse, her history of mental-health issues, and that she was
“extremely emotionally distressed at the time the offenses were committed” to
be mitigating factors. Appellant’s App. Vol. 2 at 9-10. This appeal ensued.
Discussion and Decision
[5] On appeal, Jackson asserts that her sentence is inappropriate in light of the
nature of the offenses and her character. Indiana Appellate Rule 7(B) provides
that “[t]he 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.” This Court has often recognized that “[t]he advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has explained that “[t]he principal role of
appellate review should be to attempt to leaven the outliers . . . but not achieve
a perceived ‘correct’ result in each case. Defendant has the burden to persuade
us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,
67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).
[6] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
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receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224. The question 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). Deference to the trial court
“prevail[s] 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).
[7] Pursuant to Indiana Code Section 35-50-2-6 (2019), a person who commits a
Level 5 felony is subject to a term of imprisonment between one and six years,
with an advisory term of three years. Indiana Code Section 35-50-2-7 provides
that a person who commits a Level 6 felony is subject to a term of
imprisonment between six months and two and one-half years, with an
advisory term of one year. And Indiana Code Section 35-50-3-2 provides that a
person who commits a Class A misdemeanor may be imprisoned for up to one
year. Thus, a defendant who commits a Level 5 felony, a Level 6 felony, and a
Class A misdemeanor faces a maximum possible term of nine and one-half
years.
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[8] Jackson asserts on appeal that her sentence is inappropriate for the following
reasons: there was a large crowd when she was arrested; she was “upset that
day for a couple of reasons,” including the recent death of her brother; although
she slammed her body into one officer, she “didn’t take a swing at him”; “she
was having a bad day”; she pleaded guilty and, in exchange, obtained the
dismissal of at least one count the State could not prove anyway; she was
remorseful and later apologized to at least one of the officers in person; and she
has had “numerous traumatic experiences throughout her life” and related
mental-health issues. Appellant’s Br. at 12-15.
[9] We cannot say that Jackson’s aggregate sentence of four years, with all but time
served suspended to probation, is inappropriate in light of the nature of the
offenses. Jackson resisted numerous law enforcement officers as they placed
her under arrest and moved her to the jail. Her resistance included two
different physical altercations, and during one of those altercations she bit an
officer’s leg, leaving a visible bite mark. The nature of her offenses is not
“overcome by compelling evidence portraying in a positive light the nature of
the offense[s].” Stephenson, 29 N.E.3d at 122.
[10] Neither is her sentence inappropriate in light of her character. We
acknowledge, as the trial court did, that Jackson has appeared to be remorseful,
that she was, as she says, “having a bad day,” and that she has had a history of
mental-health issues. Appellant’s Br. at 13. Jackson has multiple prior felony
convictions, and she has multiple prior convictions for battery on an officer and
resisting law enforcement. She has also had numerous prior revocations of her
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probation. Further, she pleaded guilty only after the court had already
empaneled a jury, which did not spare the State the time and expense of
preparing for trial. Accordingly, we cannot say that the evidence of her
character justifies overcoming our usual deference to the trial court on
sentencing. See Stephenson, 22 N.E.3d at 122.
[11] In sum, we affirm Jackson’s sentence.
[12] Affirmed.
Vaidik, C.J., and Tavitas, J., concur.
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