Courtney Lamar Parker 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 Oct 31 2019, 6:54 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Courtney Lamar Parker, October 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-826
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff Boswell
Trial Court Cause No.
45G03-1712-F6-293
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-826 | October 31, 2019 Page 1 of 10
[1] Courtney Lamar Parker appeals his two-year sentence for Level 6 felony
residential entry. 1 He argues the trial court abused its discretion by not
recognizing as mitigating circumstances his medical problems and the hardship
incarceration would have on his son. Additionally, Parker contends his two-
year sentence is inappropriate given the nature of his offense and his character.
We affirm.
Facts and Procedural History
[2] Patricia Torres and Parker have a child together. Patricia lived with Parker and
Parker’s girlfriend until April of 2017. She then moved in with her sister,
Melissa Torres, and Melissa’s boyfriend, Alex Velasquez, in a house in
Hammond, Indiana.
[3] In the early morning hours of April 8, 2017, Melissa and Velasquez were woken
up by a loud pounding on the door. Patricia was not at the house at the time.
Melissa went downstairs, realized the knocking was coming from the back
door, which separated the living areas from a mud room. 2 The mud room was
separated from outside the house by a locked storm door. Melissa asked, “who
is it [?], who is it [?]” (Tr. Vol. III at 123.)
1
Ind. Code § 35-43-2-1.5.
2
Melissa described the mud room as “like an inner porch, is what I would say, best – we lounge there during
summertime from the mosquitos, because we have a screened door. So it’s an inside porch, is what I would
consider it.” (Tr. Vol. III at 124.)
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[4] Parker identified himself and asked about Patricia’s location. Melissa also
looked out a window and recognized Parker. Parker continued to knock on the
door and demanded to talk with Patricia. Melissa informed Parker that Patricia
was not at the house and asked him to leave. At some point, Parker went
around to the front door. Melissa told Parker that she would shoot him with a
shotgun if he did not leave, and Melissa called the police. Parker left before the
police arrived. Melissa examined the house after Parker left and noticed the
storm door was damaged. She testified the storm door “was pulled or pried
open where it was yanked too hard where the lock no longer reaches to latch it,
so it closes but it doesn’t no [sic] longer lock.” (Id. at 129.)
[5] Throughout the day on April 8, 2017, Parker tried to contact Patricia by calling
her between ten and twenty times, sending her text messages, and contacting
her via Facebook. Between 10:00 pm and 11:00 pm, Patricia was in her room,
lying on her bed, watching a movie on her laptop. Patricia’s bedroom was
located toward the front of the house with windows facing the front yard and
street. Patricia observed Parker arrive at the house and knock on the front
door. She then saw Parker look at her through her bedroom window. Patricia
notified Melissa that Parker was at the door, and Melissa yelled that she was
calling the police. Parker then threw a rock from the front yard through
Patricia’s bedroom window and ran away. Patricia testified that the rock
landed on her foot and broken glass cut her forehead. Police apprehended
Parker approximately ten minutes later outside a bar near the house.
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[6] The State charged Parker with Level 6 felony residential entry for breaking and
entering Melissa’s house in the early morning hours of April 8, 2017; Level 6
felony attempted residential entry for attempting to enter the house in the
evening; 3 Level 6 felony auto theft; 4 Level 6 felony criminal recklessness; 5 and
Class B misdemeanor criminal mischief. 6 The State dismissed the auto theft
count prior to trial. The court held a jury trial beginning on January 28, 2019.
The jury returned a verdict of guilty on the Level 6 felony residential entry
count and not guilty on the remaining counts, and the court entered judgment
on the verdict.
[7] The trial court held a sentencing hearing on March 15, 2019. Parker
acknowledged reviewing the presentence investigation report and did not have
any additions, corrections, deletions, or comments. In 2006, Parker had pled
guilty to dealing in cocaine as a Class B felony. A portion of his sentence was
to be served on probation, but Parker did not satisfactorily complete probation.
He was also convicted of Class C felony intimidation in 2006 and Level 6
felony theft in 2018. Neither Patricia Torres nor Melissa Torres testified at the
sentencing hearing. As the deputy prosecutor explained, he spoke to them “and
3
Ind. Code § 35-43-2-1.5; Ind. Code § 35-41-5-1.
4
Ind. Code § 35-42-4-2.5.
5
Ind. Code § 35-42-2-2.
6
Ind. Code § 35-43-1-2.
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their understanding was that with more trial dates upcoming, they were going
to save their time off for those days[.]” (Tr. Vol. V at 5.)
[8] Parker, proceeding pro se, described his seven-year-old son as “the victim in this
situation.” (Tr. Vol. V at 12.) He had custody of his son prior to his
incarceration. Parker noted that his elderly mother would have to take care of
his son while he was incarcerated. He also stated that his son’s mother,
Patricia, had not seen his son in over three years. In addition, Parker stated he
had an eight-year-old daughter, and the pre-sentence investigation report
indicated Parker had one other adult daughter. Parker also referenced his
health issues. His cardiologist advised him to quit working due to a heart
condition and Parker was pursuing disability benefits prior to his arrest. He
asked the court to sentence him to the time he had already served awaiting
sentencing. Further, the pre-sentence investigation report revealed Parker had
been shot in the abdomen in 2005. He had two surgeries and took pain
medication daily.
[9] At sentencing, the State referenced Parker’s criminal history. The State
emphasized that Parker committed felony theft while out on bond in the instant
case and that Parker was facing another charge for later conduct against the
Torres family. The State pointed out that Parker had received probation in the
past and failed to successfully complete it and that Parker served time in the
Indiana Department of Correction in the past. The State asked for an
aggravated sentence of two and a half years.
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[10] The trial court imposed a two-year executed sentence and awarded Parker
credit for 214 actual days served. The sentencing order identified no mitigating
circumstances and listed Parker’s criminal history as an aggravating
circumstance. 7
Discussion and Decision
Abuse of Discretion
[11] Sentencing decisions rest within the sound discretion of the trial court, and we
review such decisions only for an abuse of discretion. Morrell v. State, 118
N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121
N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if
the decision is clearly against the logic and effect of the facts and
circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).
When a trial court imposes a felony sentence, it is required to issue a sentencing
statement “that includes a reasonably detailed recitation of the trial court’s
reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85
(Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the
court finds aggravating or mitigating circumstances, “the statement must
identify all significant mitigating and aggravating circumstances and explain
7
The order states Parker had four prior felony convictions, but this appears to be a scrivener’s error because,
in pronouncing sentence, the trial court said: “The Court gives you an aggravated sentence due to your prior
history of three felony convictions.” (Tr. Vol. V at 26.)
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why each circumstance has been determined to be mitigating or aggravating.”
Id. at 490. A trial court may abuse its discretion in imposing sentence by failing
to enter a sentencing statement, identifying aggravating and mitigating factors
the record does not support, omitting reasons clearly supported in the record
and advanced for consideration, or stating reasons for a sentence that are
improper as a matter of law. Id. at 490-91.
[12] Parker argues the trial court abused its discretion by omitting from its
sentencing statement reasons for a lighter sentence advanced by Parker,
namely, the impact Parker’s incarceration will have on his son with Patricia and
his health problems. Indiana Code Section 35-38-1-7.1(10) provides the court
may consider as a mitigating circumstance the undue hardship imprisonment
will cause to the person or the person’s dependent. As our Indiana Supreme
Court has explained, “[m]any persons convicted of serious crimes have one or
more children and, absent special circumstances, trial courts are not required to
find that imprisonment will result in an undue hardship.” Dowdell v. State, 720
N.E.2d 1146, 1154 (Ind. 1999). Parker asserts the special circumstance in his
case is that Patricia is not involved in their son’s life and Parker’s elderly
mother would have to care for their son while Parker is incarcerated.
[13] However, we do not find these to be special circumstances amounting to an
undue hardship. The children of incarcerated individuals commonly stay with
other family members. See, e.g., K.E. v. Ind. Dept. of Child Servs., 39 N.E.3d 641,
644 (Ind. 2015) (child in care of paternal aunt while father was incarcerated); In
re Adoption of S.W., 979 N.E.2d 633, 635 (Ind. Ct. App. 2012) (child in care of
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maternal grandparents while father was incarcerated). There is no indication
Parker’s son will suffer any hardship by staying with Parker’s mother.
Consequently, the trial court did not abuse its discretion by failing to consider
this proposed mitigating circumstance. See Dowdell, 720 N.E.2d at 1154
(holding trial court did not abuse discretion by failing to find as a mitigating
circumstance the undue hardship a long prison term might have on the
defendant’s young child).
[14] Regarding Parker’s health issues, in Moyer v. State, we found the defendant’s
cancer to be a significant mitigating circumstance. 796 N.E.2d 309, 314 (Ind.
Ct. App. 2003). The defendant required treatment the jail could not regularly
provide, and he needed constant medical attention. Id. Parker provided limited
testimony regarding his health, and he failed to put forth any medical records or
other documentary evidence of impairment. He did not demonstrate that he
will not be able to receive the care he needs while incarcerated. Consequently,
the trial court did not abuse its discretion by not considering Parker’s health
issues to be a mitigating circumstance. See Henderson v. State, 848 N.E.3d 341,
345 (Ind. Ct. App. 2006) (holding no error when defendant did not present
evidence medical conditions were untreatable while incarcerated).
Appropriateness of Sentence
[15] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, [we find] the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Ind. App. R. 7(B).
Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “should be to
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attempt to leaven the outliers, and identify some guiding principles for trial
courts and those charged with improvement of the sentencing statutes, but not
to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of persuading
this court that his or her sentence is inappropriate.” Kunberger v. State, 46
N.E.3d 966, 972 (Ind. Ct. App. 2015). “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.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).
[16] A Level 6 felony is punishable by imprisonment for a fixed term of between six
months and two and one-half years, with an advisory sentence of one year.
Ind. Code § 35-50-2-7(b). Thus, Parker’s two-year sentence falls within the
statutory range. Parker argues the nature of his offense is minor. He notes he
was convicted only of breaking the storm door and entering the mud room.
The back door separated Parker from the living area of the house, and Parker
did not break the back door. Nonetheless, the State notes Parker did not leave
the house until Melissa threatened to call the police, and Parker broke the storm
door’s lock. As a result, we cannot say the nature of the offense was less
egregious than a standard breaking and entering offense.
[17] A defendant’s criminal history is relevant in assessing his character. Johnson v.
State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The significance of an
offender’s criminal history varies depending on the gravity, nature, and number
of prior offenses in relation to the instant offense. Id. Parker notes that two of
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his felony convictions were over twelve years old and that none of his previous
felony convictions were for residential entry, burglary, or a related offense.
However, Parker committed felony theft while out on bond for the instant
offense. He has a long history of involvement with the criminal justice system.
He accumulated three true delinquency adjudications as a juvenile and accrued
numerous misdemeanor convictions as an adult. He previously served time in
the Department of Correction, and he did not successfully complete probation
in connection with his felony conviction for dealing in cocaine. He also faced
pending charges at the time of sentencing for additional conduct against the
Torres family. We cannot conclude an aggravated sentence in the instance case
was inappropriate. See Sanders v. State, 71 N.E.3d 839, 845 (Ind. Ct. App. 2017)
(holding defendant’s sentence was not inappropriate given his criminal history
and refusal to take advantage of rehabilitative services), trans. denied.
Conclusion
[18] The trial court did not abuse its discretion by failing to consider as mitigating
factors the impact Parker’s incarceration will have on his minor children or
Parker’s health problems. Further, Parker’s two-year sentence for Level 6
felony residential entry is not inappropriate given his lengthy criminal history.
Accordingly, we affirm.
[19] Affirmed.
Najam, J. and Baker, J., concur.
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