Jeffery J. Hunt v. State of Indiana (mem. dec.) , 2015 Ind. App. LEXIS 788 ( 2015 )

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Aug 07 2015, 8:46 am
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
Alexander L. Hoover Gregory F. Zoeller
Law Office of Christopher D. Walter Attorney General of Indiana
Nappanee, Indiana Richard C. Webster
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery J. Hunt, August 7, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1408-CR-00300
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff Shewmaker, Judge
Trial Court Cause No.
20C01-1311-FA-064
Mathias, Judge.
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[1]! Jeffery Hunt (“Hunt”) pleaded guilty in Elkhart Circuit Court to Count I, Class
A felony robbery while armed with a deadly weapon causing seriously bodily
injury; Count II, Class A felony burglary; Count III, Class B felony conspiracy
to commit burglary; and Count IV, Class B felony criminal confinement. Hunt
was sentenced to an aggregate term of 120 years executed in the Department of
Correction. Hunt appeals and argues that the 120-year sentence imposed by the
trial court is inappropriate in light of the nature of the offense and the character
of the offender.
[2]! We reverse and remand.
Facts and Procedural History
[3]! On November 4, 2013, around 9 p.m., Hunt and his father, Jeffrey Hill (“Hill”),
knocked on the door of the New Paris residence of Don and Joan Neer. Eighty-
two year old Don Neer came to the door but refused to open it. Hunt and Hill
forced their way into the home, and Hunt struck Mr. Neer on the head with a
tire iron, then struck him several more times with the tire iron and his fists as
Mrs. Neer watched helplessly.1 As a result of the attack, Mr. Neer suffered
lacerations on his head, three fractured vertebrae in his neck, and a bruised
wrist. Hunt and Hill then forced Mr. Neer into the living room, restrained him
in a chair, and went through the house, taking guns, a television, and cash.
1
Hunt claims that it was his father who struck Mr. Neer with the tire iron. However, both Mr. and Mrs. Neer
stated that Hunt was the one who beat Mr. Neer.
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[4]! The State charged Hunt with Count I, Class A felony robbery while armed
with a deadly weapon causing seriously bodily injury; Count II, Class A felony
burglary; Count III, Class B felony conspiracy to commit burglary; and Count
IV, Class B felony criminal confinement. Hunt initially pleaded not guilty, but
on June 19, 2014, he withdrew his plea of not guilty and pleaded guilty to all
four charges.
[5]! The trial court held a sentencing hearing on July 31, 2014. At the hearing, the
trial court considered the fact that Hunt accepted responsibility by pleading
guilty without the benefit of a plea agreement and Hunt’s age, twenty-six years,
as mitigating circumstances. The trial court then found the following
aggravating factors: Hunt’s criminal history and especially his two prior
burglary convictions, the fact that he had multiple victims, the age of the
victims, the extensive injuries suffered by Mr. Neer, the fact that Hunt failed to
seek medical attention for Mr. Neer after beating him, the fact that Hunt would
not allow Mr. Neer to take his heart medication when he needed it, and the fact
that Hunt was determined to be at a high risk to reoffend. After finding that the
aggravating factors outweighed the mitigating factors, the trial court sentenced
Hunt to fifty years for Count I, fifty years for Count II, twenty years for Count
III, and twenty years for Count IV. The sentences for Counts I, II, and IV were
to be served consecutively, and the sentence for Count III was to be served
concurrently with the sentence for Count IV, for an aggregate sentence of 120
years.
[6]! Hunt now appeals.
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Discussion and Decision
[7]! Hunt argues that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Pursuant to Indiana Appellate Rule
7(B), we may revise a sentence otherwise 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.” Although we have the power to review and revise sentences, the
principal role of our review should be to attempt to level the outliers, and
identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve what we perceive to
be a “correct” result in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.
Ct. App. 2011), trans. denied (citing Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008)).
[8]! Also, “we must and should exercise 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.” Stewart v. State, 866 N.E.2d 858,
866 (Ind. Ct. App. 2007). 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. Fonner v. State, 876 N.E.2d 340, 344
(Ind. Ct. App. 2007). It is the defendant’s burden on appeal to persuade us that
the sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
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[9]! In exercising our review power, we are not required to compare a defendant’s
sentence with sentences received by other defendants in similar cases. Knight v.
State, 930 N.E.2d 20, 22 (Ind. 2010). However, comparison of sentences among
those convicted of the same or similar offenses can be a proper consideration
when deciding whether a particular sentence is inappropriate. Id. Our supreme
court has stated, “Of course, a respectable legal system attempts to impose
similar sentences on perpetrators committing the same acts who have the same
backgrounds.” Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003).
[10]! Hunt pleaded guilty to Count I, Class A felony robbery while armed with a
deadly weapon resulting in serious bodily injury; Count II, Class A felony
burglary; Count III, Class B felony conspiracy to commit burglary, and Count
IV, Class B felony criminal confinement. On the date of Hunt’s offense,2 the
sentencing range for a Class A felony was twenty to fifty years, with thirty years
being the advisory sentence. See Ind. Code § 35-50-2-4. The sentencing range for
a Class B felony was six to twenty years, with ten years being the advisory
sentence. See Ind. Code § 35-50-2-5. The trial court imposed a sentence of fifty
years for Count I, fifty years for Count II, twenty years for Count III, and
twenty years for Count IV. The trial court ordered that the sentences for
Counts I, II, and IV be served consecutively and that the sentence for Count III
2
The date of Hunt’s offense was November 4, 2013. Indiana’s revised sentencing statutes took effect on
July 1, 2014.
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be served concurrently with the sentence for Count IV, for an aggregate
sentence of 120 years.
[11]! The facts in this case are undisputedly heinous; Hunt admits as much in his
brief. Hunt and his father forced their way into the residence of an elderly
couple, who they knew were home at the time. Hunt struck Mr. Neer on the
head, mouth, and arm with a tire iron and confined the Neers in their living
room. Mr. Neer was unable to work following the break-in and had to postpone
a scheduled surgery to remove a tumor on his lungs. Mrs. Neer stated that she
has suffered emotional trauma from the attack and that, at night, she still has
visions of a hooded Hunt standing in the hallway of her home.
[12]! Hunt also has a criminal history that includes juvenile adjudications in Illinois
for attempted theft and drug possession. He has previously been convicted of
burglary, residential burglary, and battery in Illinois and for operating a vehicle
never having been licensed and criminal conversion in Indiana. Hunt failed to
appear for his criminal proceedings eight different times. Despite the fact that
Hunt pleaded guilty to the crimes, he has continued to blame his father for
involving him in the crimes and claims that it was his father who beat Mr.
Neer, even though both Mr. Neer and Mrs. Neer insist that Hunt was the
person who struck Mr. Neer.
[13]! However, our review of reported cases decided since adoption of the
“inappropriate” standard for reviewing sentences reveals that sentencing for
similar cases has generally ranged from twenty-six years to ninety years. See
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Campbell v. State, No. 13S05-1410-PC-682, 2014 WL 5490577 (Ind. Oct. 30,
2014) (affirming ninety-year sentence for convictions for two counts of
attempted murder, Class A felony burglary resulting in serious bodily injury,
Class B felony aggravated battery, and Class C felony battery); Bushhorn v. State,
971 N.E.2d 80, 81 (Ind. 2012) (forty-seven year aggregate sentence for Class A
felony kidnapping, three counts of Class B felony criminal confinement, and
Class B felony attempted escape); Joseph v. State, 975 N.E.2d 420, 424 (Ind. Ct.
App. 2012) (twenty-six year aggregate sentence for Class A felony burglary
resulting in bodily injury, Class B felony attempted armed robbery, and Class B
felony criminal confinement); Kennedy v. State, 934 N.E.2d 779 (Ind. Ct. App.
2010) (affirming twenty-seven year aggregate sentence with three years
suspended for convictions for Class A felony robbery and Class A felony
conspiracy to commit robbery); Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct.
App. 2009) (ninety-year sentence for two counts of Class A felony child
molesting and three counts of Class B felony child molesting).
[14]! After surveying sentences imposed in similar cases, we conclude that Hunt’s
120-year sentence is an “outlier” that is in need of revision. To be clear, we
need not ensure that all sentences for similar acts and defendants are precisely
the same.
[15]! We therefore direct that Hunt’s sentence be revised as follows: that his
sentences for his two Class A felony convictions be reduced from fifty years to
thirty years each, and his sentences for his two Class B felony convictions
remain unchanged at twenty years each, all to be served consecutively, for an
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aggregate sentence of 100 years. We remand with instructions that the trial
court issue an amended sentencing order to carry out this revision.
Conclusion
[16]! For all of these reasons, we conclude that Hunt’s sentence is inappropriate in
light of the nature of the offense and the character of the offender and direct
that it be revised to an aggregate term of 100 years.
[17]! Reversed and remanded for proceedings consistent with this opinion.
Baker, J., and Crone, J., concur.
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