Brian Davis v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Aug 16 2016, 9:18 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael Fisher Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Davis, August 16, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1601-CR-43
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable William J. Nelson,
Appellee-Plaintiff. Judge
The Honorable Shannon Logsdon,
Commissioner
Trial Court Cause No.
49G18-1507-F6-23520
Pyle, Judge.
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Statement of the Case
[1] Brian Davis (“Davis”) appeals his sentence, following a bench trial, for Level 6
felony strangulation,1 Level 6 felony criminal confinement,2 and Class A
misdemeanor battery resulting in bodily injury.3 Davis argues that his aggregate
two and one-half year sentence is inappropriate and requests this Court to
review the length of his sentence and his placement at the Indiana Department
of Correction. Concluding that Davis has failed to show that his sentence is
inappropriate, we affirm his sentence.
[2] We affirm.
Issue
Whether Davis’s sentence is inappropriate.
Facts
[3] Around 3:00 a.m. on July 5, 2015, Davis, who was on probation in two
separate causes,4 approached Carrie Grant (“Grant”) near the corner of 10th
Street and Emerson Avenue in Indianapolis. Davis knew Grant from a
1
IND. CODE § 35-42-2-9(b).
2
I.C. § 35-42-3-3(a).
3
I.C. § 35-42-2-1.
4
Davis was on probation in cause number 49G18-1004-FD-026770 from convictions for Class D felony theft
and Class D felony check fraud and in cause number 49G18-1007-FC-054629 from a Class C felony forgery
conviction. Based on Davis’s convictions in this case, the trial court revoked his probation in those two
probation causes. Davis does not appeal the revocation of his probation in those two causes.
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previous encounter, and he asked her to go to a motel with him. The pair then
drove separately to a Knights Inn motel near 21st Street and Shadeland Avenue.
[4] Once in their motel room, Davis and Grant smoked some crack cocaine, which
Davis had brought with him. At some point, Grant went into the bathroom,
began talking on the phone, and returned naked from the waist down. After
Davis took “two hits” from the crack pipe, he made “a funny noise[,]” and then
“grabbed [Grant] and . . . slammed [her] on the bed[.]” (Tr. 9, 10). Davis
“scream[ed]” at Grant, “threw [her] back on the bed[,]” and “started beating . .
. [her] head on[]to the bed[.]” (Tr. 11). They then fell to the floor, and Davis
got on top of Grant, who was lying face down on her stomach. Davis grabbed
Grant’s neck with his arm and elbow and “kept doing it harder and harder” to
the point that Grant could not breathe. (Tr. 16).
[5] When Davis lessened his grip, Grant ran to the door. As she reached for the
door handle, Davis quickly ran over and grabbed Grant to stop her from exiting
the room. Grant clung onto the handle in an attempt to escape while Davis
tried to pull her away from the door. Grant then broke the window next to the
door and screamed for help. Despite Grant’s pleas for Davis to stop, he did not
let her go. Instead, he told her to put her pants on and then invited her to “go
do another hit[.]” (Tr. 18). Subsequently, the “door opened somehow[,]” and
Grant managed to get her arm into the opening of the doorway. (Tr. 19).
Davis then repeatedly slammed her arm in the door to prevent her from leaving.
Eventually, Grant broke free from Davis and ran to another motel room, and
the man in that room called the police. When the police officers arrived on the
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scene, they found Grant bloody, bruised, and wrapped in a comforter. The
officers also spoke to Davis, who had blood on his shirt.
[6] Thereafter, the State charged Davis with: Count I, Level 6 felony strangulation;
Count II, Level 6 felony criminal confinement; Count III, Class A
misdemeanor battery resulting in bodily injury; and Count IV, Class A
misdemeanor battery. The trial court held a bench trial on December 3, 2015.
Davis testified in his own defense and denied beating or strangling Grant.
Davis admitted that he had tried to stop Grant from exiting the room, but he
testified that he did so because he thought Grant was setting him up to be
robbed and because he did not want her to leave the room without her pants.
The trial court found Davis guilty as charged.
[7] The trial court held a joint hearing for Davis’s sentencing and his two probation
violations. During the hearing, Davis argued that the trial court should
consider as a mitigator the fact that Grant “had a part in what happened”
because she “participated” in smoking the crack cocaine. (Tr. 96). In regard to
his sentence, Davis asked that the trial court sentence him to one year executed
in community corrections and one and one-half years suspended to probation if
it was going to sentence him to “a full sentence of two and a half years[.]” (Tr.
97). Davis also requested that he be placed on community corrections for his
two probation violation cases.
[8] The State, highlighting that Davis was on probation in two cases when he
committed the current offenses, argued that there was not “any reason for the
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Court to impose anything other than the maximum sentence . . . [of] two and a
half years under this case or the full back up time” for his two probation causes.
(Tr. 100). In response to Davis’s request to be placed on community
corrections, the State argued that the trial court should not place Davis on
community corrections for his probation violation cases and that, for the
current offenses, it would “ask for at least one year executed in the Department
of Correction” with the remaining time on community corrections. (Tr. 103)
(emphasis added).
[9] When addressing Davis’s proffered mitigating circumstance regarding Grant’s
alleged participation by using drugs, the trial court stated that it found it to be
only “somewhat of a mitigator” and that it was “not going to put much weight
on” it. (Tr. 113). The trial court acknowledged the “the things that occurred in
this case, while they may have started based in the fact that you were both
engaged in illegal activity, certainly were not necessitated by those illegal
activities.” (Tr. 113).
[10] The trial court found Davis’s criminal history and the fact that he was on
probation to be aggravating circumstances. The trial court noted that Davis’s
criminal history, which included fourteen felony convictions, eight
misdemeanor convictions, and thirty arrests was the “most significant
aggravator.” (Tr. 114). It declined to place Davis on community corrections,
noting that his criminal history was “essentially overpowering.” (Tr. 120). The
trial court also noted that during Davis’s previous incarcerations, he had
accumulated twenty-six conduct reports.
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[11] Before imposing its sentence, the trial court vacated Davis’s Count IV
conviction and merged it with his Count III conviction. The trial court
imposed an aggregate executed sentence of two and one-half (2½) years to be
served in the Department of Correction. Specifically, the trial court imposed
concurrent sentences of two and one-half (2½) years for Davis’s Level 6 felony
strangulation and Level 6 felony criminal confinement convictions and one (1)
year for his Class A misdemeanor battery resulting in bodily injury conviction. 5
Decision
[12] Davis argues that his aggregate two and one-half year sentence for his three
convictions is inappropriate. He challenges both the length of his sentence and
his placement at the Department of Correction.
[13] This Court may revise a sentence if it is inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principle role of a
Rule 7(B) review “should attempt to leaven the outliers, and identify some
guiding principle for trial courts and those charged with improvement of the
5
As for Davis’s two probation violation causes, the trial court ordered Davis to serve two years of his
previously four-year suspended sentence in one cause and ordered him to serve three and one-half years of
his previously suspended sentence in the other cause. The trial court also ordered that Davis’s aggregate two
and one-half year sentence in this cause was to be served consecutively to the sentences in these two
probation violation causes. See IND. CODE § 35-50-1-2(e)(1) (providing that “[i]f, after being arrested for one
(1) crime, a person commits another crime . . . before the date the person is discharged from probation . . . the
terms of imprisonment for the crimes shall be served consecutively”).
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sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is
inappropriate ultimately turns on the “culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Id. at 1224.
[14] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, the trial court found Davis guilty of Level 6 felony strangulation, Level 6
felony criminal confinement, and Class A misdemeanor battery causing bodily
injury. The sentencing range for a Level 6 felony is between six (6) months and
two and one-half (2½) years, with an advisory sentence of one (1) year. I.C. §
35-50-2-7(b). A Class A misdemeanor carries a maximum sentence of one (1)
year. I.C. § 35-50-3-2.
[15] The nature of Davis’s offenses involved an attack on Grant after he took her to
a motel and smoked crack cocaine with her. The record reveals that Davis
slammed Grant’s head on the bed and squeezed her neck with his arm to the
point where she could not breathe. Additionally, when Grant tried to escape
from the motel room, Davis prevented her from leaving and repeatedly
slammed her arm in the door. Grant, who was half-naked at the time, was
eventually able to run out of the room.
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[16] Davis attempts to downplay the nature of his offenses by arguing that the
“incident was the product of crack cocaine usage in which the victim willingly
participated.” (Davis’s Br. 12). We disagree with Davis’s attempt to shift the
blame for his criminal offenses onto Grant. While Grant may have voluntarily
used crack cocaine along with Davis, she did not voluntarily participate in
Davis’s acts of strangulation, confinement, and battery. Furthermore, the trial
court addressed this argument at sentencing and stated that it did not find
Grant’s participation to be a significant mitigating circumstance. The trial court
acknowledged the “the things that occurred in this case, while they may have
started based in the fact that you were both engaged in illegal activity, certainly
were not necessitated by those illegal activities.” (Tr. 113).
[17] As to Davis’s character, the record reveals that Davis, who was fifty-five years
old at the time of his offenses, has an extensive criminal history, including
fourteen felony convictions, eight misdemeanor convictions, and thirty arrests.
Indeed, the trial court found that his criminal history was the “most significant
aggravator.” (Tr. 114). Additionally, Davis committed the current offenses
while on probation in two separate causes, and he has violated his probation in
the past. Furthermore, as the trial court noted during sentencing, Davis had
accumulated twenty-six conduct reports during his previous incarcerations.
Thus, Davis’s character reveals a disregard for the law and the authority of the
courts.
[18] Lastly, we address Davis’s challenge to his placement at the Department of
Correction. Davis contends that his aggregate two and one-half year sentence
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was inappropriate because the trial court ordered that the entire sentence be
served at the Department of Correction. He asserts that his placement at the
Department of Correction was “unduly harsh[,]” especially where the
prosecutor did not recommend that the entire sentence be served there.
(Davis’s Br. 14). He suggests that the trial court should have considered other
sentencing options, such as community corrections.
[19] In regard to a defendant’s challenge to his placement, our Indiana Supreme
Court has explained that “[t]he place [where] a sentence is to be served is an
appropriate focus for application of our review and revise authority.” Biddinger
v. State, 868 N.E.2d 407, 414 (Ind. 2007). Nevertheless, “it will be quite
difficult for a defendant to prevail on a claim that the placement of his sentence
is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
“This is because the question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” Id. at 268 (emphasis in original). “[A] defendant is
not entitled to serve his sentence in a community corrections program[.]”
Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995).
[20] Here, Davis relies on the prosecutor’s statement, made during the sentencing
hearing, that the State was “ask[ing] for at least one year executed in the
Department of Correction” with the remaining time on community corrections
for Davis’s current offenses. (Tr. 103) (emphasis added). The prosecutor’s
statement, however, was made in response to Davis’s argument that the trial
court sentence him to one year executed in community corrections and one and
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one-half years suspended to probation for his current offenses and that he be
placed on community corrections for his two probation violation cases. During
sentencing, the trial court declined Davis’s request to be placed on community
corrections, noting that his criminal history was “essentially overpowering.”
(Tr. 120). Davis has not shown that his placement in the Department of
Correction, instead of on community corrections, is inappropriate. Davis has
an extensive criminal history and committed these offenses while on probation
in two other causes. Because Davis has not persuaded us that his aggregate two
and one-half year sentence for his three offenses is inappropriate, we affirm the
trial court’s sentence.
[21] Affirmed.
Kirsch, J., and Riley, J., concur.
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