Jeffrey Burns v. State of Indiana (mem. dec.) ( 2015 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D), this                              Aug 07 2015, 9:52 am
    Memorandum Decision shall not be 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
    Derick W. Steele                                         Gregory F. Zoeller
    Deputy Public Defender                                   Attorney General of Indiana
    Kokomo, Indiana
    Richard C. Webster
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jeffrey Burns,                                           August 7, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    34A02-1501-CR-11
    v.                                               Appeal from the Howard Circuit
    Court
    State of Indiana,                                        The Honorable Lynn Murray,
    Judge
    Appellee-Plaintiff
    Case No. 34C01-1404-MR-89
    Crone, Judge.
    Case Summary
    [1]   Jeffrey Burns appeals his twenty-year sentence for class B felony aggravated
    battery. The dispositive issue presented for our review is whether the sentence is
    inappropriate in light of the nature of the offense and the character of the
    Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015             Page 1 of 6
    offender. Finding that Burns has failed to show that his sentence is
    inappropriate, we affirm.
    Facts and Procedural History
    [2]   One afternoon in March 2014, Burns received a telephone call from
    Christopher Arnold. The previous night, Arnold was with Burns at Burns’s
    mother’s house and the two had an argument over a girl. Arnold was still angry
    and told Burns over the phone that he was coming to Burns’s house to fight.
    [3]   Arnold arrived at Burns’s house with Devin Toole and Olivia Wenisch. Toole
    and Wenisch stood out on the sidewalk while Arnold pounded on the front
    door, yelling for Burns to come out and fight. Burns’s mother opened the door
    and told Arnold that he needed to leave. Arnold and Toole observed Burns
    standing inside the house holding a shotgun, which he had stolen during a
    burglary. Burns’s mother shut the door, but Arnold continued to yell and kick
    at the door until it broke. Arnold then threw a large trash tote through a
    window and into the house. Burns fired the shotgun into the family room floor,
    and Arnold, Toole, and Wenisch fled. As they ran, Burns fired two shots at
    Toole, hitting him in the right side and arm.
    [4]   The State charged seventeen-year-old Burns as an adult with class A felony
    attempted murder, class B felony burglary, class B felony aggravated battery,
    and class C felony criminal recklessness. Burns agreed to plead guilty to the
    aggravated battery in exchange for the dismissal of the remaining charges.
    Sentencing was left to the trial court’s discretion, but any executed term was
    Court of Appeals of Indiana | Memorandum Decision 34A02-1501-CR-11 | August 7, 2015   Page 2 of 6
    capped at fourteen years. The trial court sentenced Burns to twenty years of
    incarceration at the Department of Correction, with fourteen years executed
    and six years suspended to supervised probation. This appeal ensued.
    Discussion and Decision
    [5]   Burns contends that his sentence is inappropriate and seeks resentencing. This
    “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.” Ind.
    Appellate Rule 7(B). Whether the reviewing court regards a sentence as
    inappropriate turns on “a 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 v. State, 
    895 N.E.2d 1219
    , 1224 (Ind. 2008). This
    court “must give ‘deference to a trial court’s sentencing decision, both because
    Rule 7(B) requires us to give due consideration to that decision and because we
    understand and recognize the unique perspective a trial court brings to its
    sentencing decisions.” Gil v. State, 
    988 N.E.2d 1231
    , 1237 (Ind. Ct. App. 2013)
    (quoting Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007)). Upon the
    review of sentence appropriateness, “appellate courts may consider all aspects
    of the penal consequences imposed by the trial judge,” including suspension of
    the sentence and probation. Davidson v. State, 
    926 N.E.2d 1023
    , 1025 (Ind.
    2010). The defendant bears the burden of persuading the Court that his sentence
    is inappropriate. Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006). The
    defendant bears the burden of showing both prongs of the inquiry—the nature
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    of the offense and the character of the defendant—favor revision of his
    sentence. Anderson v. State, 
    989 N.E.2d 823
    , 827 (Ind. Ct. App. 2013), trans.
    denied.
    [6]   Regarding the nature of the offense, Burns argues that the sentence is
    inappropriate because he acted to some degree in the defense of himself, his
    home, and his mother. In assessing the nature of the offense, this Court
    examines the defendant’s actions in comparison to the statutory requirements of
    the crime. 
    Id. A person
    who knowingly or intentionally inflicts injury on a
    person that creates a substantial risk of death commits class B felony aggravated
    battery. Ind. Code § 35-42-2-1.5. A class B felony is punishable by
    imprisonment for a fixed term of between six and twenty years, with the
    advisory sentence being ten years. Ind. Code § 35-50-2-5. The advisory sentence
    is “the starting point the Legislature has selected as an appropriate sentence for
    the crime committed.” Anglemyer v. State, 
    868 N.E.2d 482
    , 494 (Ind. 2007),
    clarified on reh’g, 
    875 N.E.2d 218
    .
    [7]   Burns knowingly or intentionally inflicted injury upon Toole when he shot him
    twice with a shotgun. While Arnold did instigate the event and provoke Burns,
    Burns escalated the violence substantially by bringing out the stolen shotgun.
    There is no evidence in the record that Arnold, Toole, or Wenisch were armed.
    Further, the trio fled as soon as Burns fired the first shot into the floor, yet
    Burns continued to shoot and struck Toole as he ran away. Thus, even
    considering that Arnold instigated the event, the nature of the offense supports
    a sentence in excess of the advisory.
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    [8]    Regarding his character, Burns argues that the sentence is inappropriate because
    of his drug dependency. Specifically, he argues that a more appropriate
    sentence would have been to place him in the Department of Correction for a
    period of ten years, with ten years on supervised probation because this would
    better provide him with resources to conquer his substance abuse and mental
    health issues. We first observe that our inquiry is whether the sentence imposed
    is inappropriate, “not whether another sentence is more appropriate.” King v.
    State, 
    894 N.E.2d 265
    , 268 (Ind. Ct. App. 2008). Thus, Burns’s argument for an
    alternative sentence is not within the scope of appellate review.
    [9]    We further observe that while a person’s drug dependency may be considered in
    determining the appropriateness of his sentence, one’s criminal history may also
    be considered in assessing a defendant’s character. Rutherford v. State, 
    866 N.E.2d 867
    , 874 (Ind. Ct. App. 2007). It is proper to consider one’s criminal
    history “as a poor reflection on the defendant’s character because it may reveal
    that he or she has not been deterred even after having been subjected to the
    police authority of the State.” 
    Id. [10] Burns’s
    criminal history began as a juvenile when he committed battery at six
    years old. Since then, Burns has had sixteen known contacts with the juvenile
    justice system, including an adjudication for battery. His extensive contacts
    with the juvenile justice system have failed to rehabilitate him. Burns also has a
    prior adult conviction for class D felony auto theft and had been released on
    probation from that conviction for just two months before he committed the
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    aggravated battery in this case. His guilty plea resulted in his second adult
    felony conviction in less than a year.
    [11]   Burns’s criminal history shows his disregard for the criminal justice system and
    the authority of the court. There were multiple attempts through several
    programs to rehabilitate and treat Burns’s mental and emotional problems,
    none of which were ever completed. After he was convicted of auto theft, he
    was ordered to complete the court’s drug and alcohol abuse program, but he
    was arrested on the charges in this case before he could begin the program. We
    agree with the State’s classification of Burns’s character as that of a career
    criminal. As such, a sentence in excess of the advisory is warranted. Thus,
    Burns has failed to show that both the nature of the offense and his character
    render his twenty-year sentence inappropriate.
    [12]   Affirmed.
    May, J., and Bradford, J., concur.
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